What’s On Their Minds: What is the Effect of an Outstanding Arrest Warrant on Evidence Obtained from an Earlier Allegedly Unlawful Detention of the Defendant? State v. Damaad Gardner.

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On September 26, 2012, the Supreme Court of Ohio heard oral argument in the case of State v. Damaad Gardner, 2011-2134. The issue in this case is whether an outstanding arrest warrant deprives the person subject to that warrant of any expectation of privacy, and precludes the exclusion of evidence seized in an unrelated, allegedly unlawful search and seizure, when the police were unaware of the arrest warrant at the time of the later detention.   This is a long post because I found the whole thing utterly fascinating.

Background

Damaad Gardner was a passenger in a car being followed by a Dayton police officer in an unmarked cruiser, on patrol in a known high drug activity area. Because of some earlier activity he had been investigating, the officer ran the plates on the car, which was owned by a Richard Easter, and learned that Easter had an active outstanding arrest warrant on a drug charge.

The officer followed the car to a gas station, where he approached the driver and determined that the driver was Easter. After placing Easter under arrest, the officer saw Gardner moving around inside the car. Concerned for his own safety and concerned that Gardner might flee, the officer ordered Gardner to step out of the car, handcuffed him, then patted him down, and found crack cocaine in his pockets.  The officer informed Gardner he was placing him under arrest, and then Mirandized him. When other officers later arrived on the scene, they discovered that Gardner had an outstanding traffic warrant for his arrest.

Motion to Suppress

The trial judge did not make a determination about whether the officer had a reasonable articulable suspicion to stop and frisk Gardner.  Instead, based on his interpretation of then-existing precedent in the Second District, he ruled that even if the stop and frisk was unjustified, the evidence did not need to be suppressed when the accused was then subject to a valid outstanding arrest warrant, even if the arresting officer didn’t know it at the time. Gardner had no reasonable expectation of privacy, and the exclusionary rule did not apply. Gardner pled no contest to the drug charge, and was sentenced to community control.

Appellate Decision

The Second District Court of Appeals  reversed the decision of the trial court and remanded the case for a determination of whether the police–separately and independently from the later discovered arrest warrant–had a reasonable articulable suspicion for the search and seizure. The Supreme Court accepted this appeal by the state. Read the oral argument preview of this case here.

At the Supreme Court Oral Argument

State’s Argument

The prosecutor argued quite vehemently that a person who is subject to a valid outstanding arrest warrant has no expectation of privacy, and no right to complain that the police later stopped and searched him on legally insufficient grounds. The authority to arrest exists independently of the officer’s knowledge at the time of the unrelated event. The Court of Appeals was wrong in this case when it held that a person doesn’t give up his right to privacy just because there is an outstanding arrest warrant. Precedent from the U.S. Supreme Court holds that an outstanding arrest warrant carries with it the authority to arrest that person anywhere. An outstanding arrest warrant lessens that person’s Fourth Amendment rights. If there is an arrest warrant, then unless the police conduct is absolutely outrageous that person’s Fourth Amendment right to privacy hasn’t been violated. An arrest warrant is pre-existing authority that supersedes that person’s right to be free of police intrusion.

Gardner’s Argument

Gardner’s defense counsel shared her time with amicus counsel from the Cuyahoga County Public Defender’s office.  She argued that the later discovery of an outstanding arrest warrant in no way legitimates the validity of the search in this case.  It is the officer’s actions and the reasons for his actions at the time that controls, not what is learned later. The Court should simply remove the existing warrant from its consideration of the reasonablness of the search, because it didn’t factor into the officer’s consideration. Whether the evidence of the crack cocaine must be suppressed must stand on its own basis, and the reasonableness of the police behavior in this case has not been determined. She asked the Supreme Court to send the case back solely for that purpose (which would mean affirming the court of appeals decision).

Argument of Amicus Counsel

The Cuyahoga County Public Defender gave an eloquent, full blown exegesis of the Fourth Amendment.  “The notion that a person could not challenge the search of his person merely because of the existence of a warrant defies the Constitution—the framers would be spinning in their graves,” he began. The reasonableness of an officer’s actions—the touchstone of the Fourth Amendment—can only be determined at the time the officer acted.  So the existence of an unknown outstanding arrest warrant simply cannot figure into the calculus. And an arrest warrant cannot serve as an ex-post-facto justification for any earlier illegal police behavior. The problem with the state’s argument is that the exclusionary rule focuses on the police and the reasonableness of the police action, not on the defendant.

What Was On Their Minds at the Oral Arument

 Why Resort to the Outstanding Warrant as a Justification Here?

This was a common theme among the justices. Justice McGee Brown, first asked why the warrant was even a necessary justification, since it appeared that the officer had an independent legitimate basis for a detention and search of Gardner—fear for his own safety, based on Gardner’s conduct in the back seat of the car.  Why isn’t the state just arguing this on the officer’s reasonable suspicion about the defendant, instead of the warrant, she asked in follow-up. Have we gotten the cart before the horse here?

Chief Justice O’Connor asked if the defendant was arrested because of the outstanding warrant or because of his conduct at the time the officer was arresting the driver.

Justice O’Donnell asked whether the case shouldn’t just stand on the then-existing circumstances, and not on the warrant. Shouldn’t there be a review of the conduct of the police officer to determine if it was or wasn’t reasonable?  If the officer’s action was reasonable, there’s no need to reach the warrant question. He noted that hasn’t yet been determined. Shouldn’t the matter be remanded to the trial court for a determination of the conduct of the officer in making the initial arrest?

The prosecutor emphasized in response to these and all similar questions that while the state had argued at the suppression hearing that the detention and search of Gardner was independently totally proper, the trial judge had decided he didn’t need to decide that issue because of the outstanding arrest warrant. And that was a proper finding which should be upheld (meaning, reverse the court of appeals).

What Was the Impact of the Warrant on the Arrest?

Asked Chief Justice O’Connor.

Does the existence of a warrant absolve police officers of unreasonable searches, asked Justice O’Donnell.

In a key exchange of the day, Justice Lanzinger asked defense counsel, so it’s what the officer knows at the time that controls (answer-yes).

What must an officer have to arrest someone on a warrant, asked Justice Cupp

Should the Case be Remanded for a Determination of the Reasonableness of the Officer’s Conduct, Without the Warrant Issue

Asked Justice McGee Brown and Chief Justice O’Connor.

Chief Justice O’Connor asked defense counsel what would happen on remand if it was determined that the stop was unjustified. (then we win, she said). But if the trial court finds the stop was justified, isn’t the defendant right back where he is now? (answer-yes).

Justice O’Donnell asked if Gardner could still be prosecuted under the traffic warrant (absolutely, said defense counsel).

Is Anyone with an Outstanding Warrant Stripped of His or Her Fourth Amendment Rights?

Justice Lanzinger asked the prosecutor, quite pointedly. “Your argument seems to be that if there is a warrant for a traffic matter, and you go back out onto the street, you are subject to any kind of unreasonable activity by the police.” Later, she asked defense counsel if she thought an outstanding warrant had any effect on a suspect’s Fourth Amendment rights. (yes, she said, as to the subject of that warrant)

But, asked Chief Justice O’Connor, if the police had known of the outstanding warrant and the perpetrator’s identity, they could’ve stopped, searched, and arrested him even if he were standing on the corner doing nothing (yes, conceded defense counsel).

Ex-Post-Facto Legitimization

Justice Stratton asked if it was the state’s position that learning about the warrant legitimizes the seizing of the evidence, regardless of whether the seizure was independently justified. (answer: yes).

You are bootstrapping the finding of the illegal contraband onto the warrant? asked Chief Justice O’Connor. (the state doesn’t see this as “bootstrapping.” The defense, on the other hand, clearly does.)

In another key exchange of the day, Chief Justice O’Connor asked defense counsel if she agreed that if the initial stop was tainted in some way, using the outstanding warrant would be a way of bootstrapping the discovery of the illegal substance and justified by the existence of the warrant, as opposed to other cases where there is no active warrant. And yes she did agree.  Exactly.

Justice Cupp asked what policy would be violated for allowing a subsequently discovered warrant to serve as a “cure” for stopping someone without reasonable suspicion.

Chief Justice O’Connor asked if the Court really needed to reach the bootstrap issue if it were just to remand the case to the trial court to analyze the validity of the police stop. When the prosecutor answered that would leave an incorrect court of appeals decision in place, and  that the same issue would likely recur, Justice McGee Brown took umbrage at her suggestion that the issue would likely recur.  Then the following exchange took place:

Justice McGee Brown: “I don’t see this huge problem you think will occur again.”

The prosecutor:  “…that means that this person, whose arrest has been ordered, can’t be prosecuted for the evidence on their person”

The Justice: “but they can still be prosecuted for what’s on the outstanding warrant”

The prosecutor: “yes, but they get a pass for the crime they were committing.”

The Justice: —“but that occurs whether there is a warrant or not, doesn’t it?”

The prosecutor: “but it undermines the authority of the warrant—how can you complain that you were stopped and frisked with insufficient grounds”

The Grand Finale Quote of the Day Goes to Justice Lanzinger:

“You’re asking for an arrest warrant to carry a great deal of freight here.”

How it Looks from the Bleachers

To Professor Bettman

The prosecutor is indeed asking for an arrest warrant to carry waayyyyy too much freight.  I found her argument– that an arrest warrant validates an earlier unjustified search— scary. I think her argument overreached and the justices aren’t going to buy it. Only Justice Cupp appeared ready to, but I suspect he will agree to a remand. I think the justices will send this case back to the trial court for a determination of the reasonableness of the detention and search, and will likely instruct that the outstanding warrant is irrelevant to that determination since the officer had no knowledge of it at the time.  Given the tenor of recent precedent from the U.S. Supreme Court, the detention and search in the case–unrelated to the warrant– are likely to be found reasonable.

As usual, Justice O’Donnell asked what law the Court should write. If it wishes to go beyond just ordering a remand to determine the reasonableness of the initial stop, the Court would do well to adopt the proposition of law proposed by the amicus brief in support of Gardner (who seemed prepared for the question):

“The discovery by police that the defendant is the subject of an outstanding arrest warrant, unknown to the police at the time of the seizure, has no effect on whether the seizure of the defendant was legal or illegal, and has no effect on whether evidence obtained prior to the discovery of the warrant was legally or illegally obtained, nor on whether evidence obtained prior to the discovery of the arrest warrant should be suppressed.”

To Student Contributor Greg Kendall

The Court was heavily focused on whether the arrest was premised on the outstanding arrest warrant or on the conduct the defendant exhibited during the detention of the driver. Justice O’Donnell is skeptical that the subsequent discovery of an outstanding arrest warrant can make unreasonable police conduct suddenly reasonable. The justices are also concerned that the State’s view would open the door for police to make random searches in the hopes of finding someone with an outstanding arrest warrant, in which case any resulting searches would be reasonable. Counsel for the State had an interesting argument in that under the Defendant’s view, an arrestee would get a free pass for the crime he or she is committing at the time the arrestee is stopped on the outstanding arrest warrant; however, the Court did not seem to buy this. The Court seemed more friendly to the Defendant and will probably hold that the Defendant had a reasonable expectation of privacy here.

 

 

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