On August 29, 2012, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
On May 9, 2012, the Supreme Court of Ohio heard oral argument in the case of State v. Jillian Hobbs, nos. 11-1504 and 11-1593. After an investigation in which two witnesses told sheriffs’ detectives they had seen Hobbs that day in a house that was burgled, the officers went to Hobbs’ house to investigate further. Hobbs admitted that she had committed the crime. Hobbs was arrested (without a warrant) and taken to the county jail. A complaint and affidavit were later “clerked”, and an arrest warrant issued. In Barberton Municipal Court, a sheriff’s deputy serves in the dual capacity of neutral and detached magistrate for the purpose of determining probable cause for issuance of warrants. At the suppression hearing, the trial court found that the arrest warrant was improperly issued, but that the exclusionary rule does not apply to pre-violation conduct—the confession here did not derive from the invalid arrest warrant– so the motion to suppress was denied. The Ninth Appellate District affirmed. Read the oral argument preview of this case here.
The Supreme Court accepted this case on conflict certification and discretionary review. The certified conflict question is “May a law enforcement officer, serving a dual-role as an officer and deputy clerk of a local municipal court, act as a neutral and detached magistrate for purposes of Crim.R.4(A)?” The question accepted on discretionary review is, if the answer to the certified question is no, does the exclusionary rule apply?
The parties seriously disagree about the state of the record in this case. The state vehemently challenges the finding that an arrest warrant was issued.
Hobbs’ counsel argues that it is unconstitutional for a police officer to serve in the dual capacity of law enforcement officer and neutral and detached magistrate. We don’t want those making decisions about warrants to believe someone just because the requester is a law enforcement officer. Any proceeding that has a law enforcement officer serving as a neutral and detached magistrate is tainted. The remedy here must be exclusion to remedy the long time policy and practice in effect in this court.
The state argues that a law enforcement officer can act in a dual capacity as a deputy clerk as long as the officer was not involved in that investigation. The prosecutor vigorously argued that an arrest warrant was never issued in this case—only a complaint and an affidavit. The trial judge, who was only examining the issue of whether an officer can act in a dual capacity to acknowledge a complaint and an affidavit, incorrectly found that an arrest warrant had issued, and the state tried unsuccessfully to correct the record. The prosecutor argued that the officer-magistrate did not sign an arrest warrant—his signature merely “bled through” to that page from the other pages in the packet of documents used in this court. She also repeatedly referenced a federal civil rights lawsuit filed by Hobbs to support the state’s position in this case that no arrest warrant had issued, and also to show that this dual-capacity practice has stopped, asking the Court to take judicial notice of that case. She argued that if the Court does find that an arrest warrant was issued in this case, the Court should find the deputy acted properly in a dual capacity. There is no evidence in this record of systemic problems that deprive citizens of due process because of the dual-capacity issue. Furthermore, the dual-capacity practice has stopped. Even if the court were to find an arrest warrant had issued, and was invalid, the arrest itself was still valid. She agrees that the exclusionary rule is the proper remedy if there is a violation here, but it would only come into effect at the time of the error, which was post-confession in this case, so there is nothing to exclude.
Hobbs’ rebuttal on the warrant issue was that the arrest warrant is part of a four part form, designed to have a signature press through to all four parts. When the officer-magistrate signed it, it became an arrest warrant.
What is a Neutral and Detached Magistrate?
Justice O’Donnell asked if the dual capacity issue raised separation of powers problems. Don’t magistrates normally come from the judicial branch? Doesn’t U.S. Supreme Court precedent say that whatever else neutrality might entail it requires severance and disengagement from the activities of law enforcement?
Must the smaller jurisdictions have a separate clerk altogether for this role, asked Justice Lanzinger.
Chief Justice O’Connor mused that these officers work together all the time and may even be personal friends, so how does the “neutral magistrate” question the word of his buddies?
How Widespread is this Practice?
Justice O’Donnell wanted to know. No one knew, exactly.
Chief Justice O’Connor asked the justification for doing this instead of using a clerk or a non-officer employee? Was there a financial reason for doing it this way? And if the practice has indeed ceased, as the prosecutor alleged a couple of times, is there anything for the Court to decide?
What About the Confession in the Case?
Chief Justice O’Connor asked. Surely a warrant isn’t needed every time there is an arrest? There’s no evidence that this was anything but a voluntary confession. But then, in the key exchange of the day, she said to defense counsel, “you are saying that [dual-capacity practice] permeates the entire manner of doing business that somehow taints the fact that the these officers went to her home and she confessed and led them to the drug stuff, somehow this whole shadow of their process infects what they did at her home?” (answer:yes) She pressed further—what would defense counsel have had the officers do? The officers were investigating, they went to her house, she confessed. Aren’t the remedies being suggested just going to hamper law enforcement? (answer—the requirement that no warrant shall issue except on probable cause issued by a neutral magistrate should not hamper law enforcement whatsoever.”)
And What About this Faulty Signature Thing…
Chief Justice O’Connor asked how the officer could have prevented this (prosecutor’s answer: by separating the pages of the form packet; this can be verified from the footnotes in the federal case).
Justice O’Donnell wanted to be sure—he asked the prosecutor if she was indeed saying that there was no arrest warrant issued here, this was just a mistake, it was just the acknowledgement of the complaint? (answer:yes)
Justice Lanzinger noted that on those forms there was also a box checked, next to the word warrant. Was that a mistake, too? Is there any separate document in the record that shows the arrest warrant? Chief Justice O’Connor followed up on this, asking the purpose of checking that warrant box.
How it Looks from the Bleachers
The record is clearly a mess here. The Court is unlikely to use any information from the federal case to clear it up. That is not part of this case record. The Court is likely to disapprove the practice of a law enforcement officer serving as a neutral and detached magistrate. If nothing else, it surely gives the appearance of bias. And to me, it does raise separation of powers problems, as Justice O’Donnell suggested. The Court is also likely to find that an arrest warrant was issued in this case, and will probably agree that it was invalid. Both parties agreed that if the Court were to find a violation here, the exclusionary rule applies. But the Court is likely to agree with the lower courts that there was no pre-confession violation, so there is nothing to exclude, and uphold Hobbs’ conviction. The big picture principle that should come out of the case is to ban the dual-capacity practice.