Merit Decision. “The Fourth Amendment Does Not Countenance Post Hoc Rationalization.” An Outstanding Arrest Warrant Doesn’t “Cleanse” An Earlier Bad Detention. State v. Gardner.

Update: Read what happened to this case on remand here.

On December 6, 2012, the Supreme Court of Ohio handed down a merit decision in State v. Gardner, 2012-Ohio-5683. This is a honey of a decision, authored by Chief Justice O’Connor for a unanimous (yes!) Court. The Court held that it is error to deny a motion to suppress based solely on an unrelated outstanding arrest warrant that the trial court somehow concluded “cleansed” any police error in seizing the individual found to be subject to the warrant.

Case 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 Easter, who pulled into a gas station, parked the car, and bought some cigarettes. The officer arrested Easter, and as he was doing so, he noticed Gardner moving around inside the car, seeiming to be getting ready to get out. The officer then saw Gardner rise from the seat and reach into the back of his shorts.  Since the officer was alone at the scene, he ordered Gardner out of the car, told him he was not under arrest, but handcuffed him for the officer’s own safety.  In patting Gardner down the officer found crack cocaine, and then placed Gardner under arrest. After some other officers arrived on the scene, Gardner was taken into custody. It was later discovered that Gardner had an outstanding traffic warrant for his arrest.

Motion to Suppress

Gardner was indicted on one count of possession of crack cocaine.  He moved to suppress the cocaine. But the trial judge did not make a determination about whether the officer had a reasonable articulable suspicion to detain 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 appealed his conviction.

Appellate Decision

In a split 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, and the analysis of the argument here.


The Court defined the issue as whether an individual who is subject to an arrest warrant forfeits all expectation of privacy under the U.S. and Ohio Constitutions.  In answering this question with a resounding “no,” the Court rejected this proposition of law urged by the state:

“When a person is subject to arrest on an outstanding warrant, he or she has no expectation of privacy that would protect him or her from execution of the warrant.”

Rejection of the Click case

In 1994, in Dayton v. Click, the Second District Court of Appeals had held that even when there was no showing of any reasonable, articulable suspicion that the defendant was involved in criminal activity, unlawfully obtained evidence did not have to be suppressed if the defendant knew that there were outstanding warrants for his arrest, because then the defendant had no reasonable expectation of privacy.

But in Gardner, the Court of Appeals majority defined Click as “labyrinthine, if not desultory.” The high Court went even further.  It flatly declared that Click was not good law.

Carrying the Flag for the Fourth Amendment.

I’m mostly quoting from the opinion here, because the Chief was downright eloquent. She began with a quote from Terry itself:

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” She went on from there. This one is from Pennsylvania v. Mimms“The Fourth Amendment protects the privacy and personal security of individuals from arbitrary and oppressive interference by limiting the search-and-seizure authority of law enforcement officials.”  Textbook stuff.  Brava!

Some Harsh Words for the State

“The state asserts that the rationale in Click is consistent with the Fourth Amendment and that “[b]ecause Gardner was subject to being arrested, searched, and taken to jail on the warrant, he had no expectation of privacy that would protect him from an insufficiently justified Terry stop and frisk… We disagree,” O’Connor wrote.

“We will not condone the notion that the unlawfulness of an improper arrest or seizure always can be purged by the fortuitous subsequent discovery of an arrest warrant. As one federal court succinctly stated, “This argument is preposterous; the Fourth Amendment does not countenance such post hoc rationalization.” Bruce v. Perkins, 701 F.Supp. 163, 165 (N.D.Ill.1988)… There is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist that temptation.”

More Brava!

What all this Means for Gardner

For all the wonderful language in this opinion, this is by no means a win for Gardner—actually the opposite is probably true.  The Court of Appeals reversed the case because the trial court denied the motion to suppress without making any determination about whether there was reasonable, articulable suspicion to justify the officer’s detention and pat-down of the defendant. The Supreme Court affirmed the decision of the appeals court and sent the case back for that determination.

Case Syllabus

None.  Although this headnote would have made a good one-

“Mere existence of an outstanding warrant does not render a later unjustified seizure lawful”

Concluding Observations

I was truly offended by the state’s argument in this case, and it appeared at the time that the justices were, too. In fairness, at the suppression hearing, the state had argued that the detention and search of Gardner was independently totally proper, but the trial judge had decided he didn’t need to decide that issue because of the outstanding arrest warrant. Still, once the Second District reversed on this point, the state didn’t need to take this case up. And when asked by Justice Stratton at argument whether it was the state’s position that learning about the warrant legitimized the seizing of the evidence, regardless of whether the seizure was independently justified, the prosecutor said that it was.

At argument, my favorite quote of the day came from Justice Lanzinger—“You’re asking for an arrest warrant to carry a great deal of freight here.” At the end of the day, it was way too much freight.

Justices O’Donnell, McGee Brown and the Chief all asked whether the case shouldn’t just stand on the then-existing circumstances, and not on the warrant. This line of questioning led me to predict that “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.”

And I think Gardner is likely to lose his case on remand, under a straightforward Terry analysis.  Still, the Court sent an important message in this case about Fourth Amendment rights (and the state constitutional equivalent at Article I Section 19).


This entry was posted in Merit Decisions, Ohio Supreme Court Watch and tagged , , . Bookmark the permalink.