In Sharper Focus: The New Judicial Federalism in Ohio.

In State v. Johnson, Justice Lanzinger asked whether the Ohio Constitution provides greater protection than the federal constitution requires. What did she mean by that? Let’s look at that In Sharper Focus.

In 1975, in Oregon v. Hass, 420 U.S. 714 (1975) the U.S. Supreme Court urged states to expand their constitutional doctrines to afford greater protections to their citizens, holding that “a state is free as a matter of its own law to impose greater restrictions on police activity than those this court holds to be necessary upon federal constitutional standards.”

States began use their own constitutions to provide greater protections in the areas of civil liberties and individual rights than is required under the U.S. Constitution. This movement was known as the new judicial federalism.

Ohio was relatively late in joining the movement.  It did so in 1993, in the case of Arnold v. Cleveland, (1993), 67 Ohio St.3d 35, 616 N.E.2d 163.  The first paragraph of the syllabus of Arnold  holds “the Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which the state court decisions may not fall.”

The Justice most interested Ohio’s new judicial federalism movement was the late Craig Wright, who wrote a series of decisions and dissents on this issue.  After he retired from the Court, that mantle was assumed by Justice Pfeifer.

The Johnson case involves the question of protections under the Fourth Amendment and the Ohio Constitutional analogue, Section 14, Article I.  Justice Pfeifer was visibly irritated by the prosecutor’s argument that it is the legislature that must provide any rule for greater protection than now exists for GPS surveillance. Let’s look at the back story there.

In 1995, the Ohio high court decided the case of State v. Robinette, 73 Ohio St.3d 650 (1995). (Robinette I). In that case the Court upheld the suppression of drugs found in a car after a routine traffic stop followed by an ostensibly consensual search, finding it was not consensual.  Justice Pfeifer wrote the decision.  The syllabus states that “the right, guaranteed by the federal and Ohio Constitutions, to be secure in one’s person and property requires that citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention before an officer attempts to engage in a consensual interrogation. ” (Justice Ginsburg later dubbed this the first-tell-then-ask-rule)

Ohio was then quite new at this new judicial federalism thing.  The U.S. Supreme Court granted cert. in the Robinette case, and found that Ohio had not really based its holding on independent state grounds, and had misinterpreted what federal law required. Ohio v. Robinette, 519 U.S. 33, (1996), (Robinette II). It gave the Ohio Supreme Court the choice on remand of developing independent state grounds or interpreting federal law correctly.  The Ohio Supreme Court chose the latter course, but held that under federal law, the search in the case was not consensual. So the Ohio high court upheld the suppression of the evidence again—but not on state constitutional grounds. And it was in the remanded Robinette case, State v. Robinette, 1997-Ohio-343, (Robinette III). that Justice Stratton wrote, “case law indicates that, consistent with Robinette II, we should harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to find otherwise”—the exact quote the prosecutor gave in answer to Justice Lanzinger’s question at oral argument in the Johnson case.

Ever since the Robinette saga, I think that Justice Pfeifer has become the guardian of finding greater protections under the state constitution than the federal floor requires.  That’s a bit of background for why he was so put out when the prosecutor in Johnson suggested that only the legislature could write a more protective rule about the GPS.

While I think the prosecutor in Johnson was correct that the Ohio Supreme Court has tended to follow federal constitutional interpretation in Fourth Amendment cases other than with some minor misdemeanor offenses, in State v. Smith, 2009-Ohio-6406, a 4-3 decision written by Justice Lanzinger, the Court held that a warrant was required to search the data in a cell phone. In that case, though, the defendant relied only on the federal constitution, and made no state constitutional argument.

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