In reversing the trial court’s denial of the defendant’s motion to suppress evidence obtained in a traffic stop made outside the territorial jurisdiction of the police officer involved, the Sixth District Court of Appeals sua sponte held that Article I, Section 14 of the Ohio Constitution provided greater protection for Ohio citizens for this type of bad traffic stop than exists under the Fourth Amendment to the U.S. Constitution. What is that all about? It is about the new judicial federalism.
The new judicial federalism is a doctrine whereby states can provide greater protections under their own constitutions in the areas of individual rights and civil liberties than are afforded under the U.S. Constitution. Ohio “officially” signed on to the movement in 1993 in Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163, in which it held, in paragraph one of the syllabus, that “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 state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.”
In Ohio, the chief advocate of this doctrine was the late Justice Craig Wright. When he left the court, Justice Paul Pfeifer took up the mantle as chief advocate for greater protections under the Ohio Constitution, and has remained so ever since. In 1995, in State v. Robinette, 73 Ohio St.3d 650 (1995), (Robinette I) in another bad traffic stop case, Pfeifer wrote for the court that before an officer engages in consensual interrogation following a traffic stop, the citizen must first be told that he or she was free to go. This was later dubbed the “first-tell-then-ask” rule, and Pfeifer wrote for the court that this rule was mandated both by the Fourth Amendment and by Article I, Section 14 of the Ohio Constitution. That case ultimately went up to the U.S. Supreme Court, which reversed it in Ohio v. Robinette, 519 U.S. 33 (1996), (Robinette II) finding that even though the Supreme Court of Ohio had said it was relying on its own constitution, all the analysis in the case was based on federal law. The U.S. Supreme Court also found that the Ohio high court had incorrectly applied the federal test for consent. It gave the Supreme Court of Ohio the choice on remand of developing independent state grounds for its ruling, or interpreting federal law correctly. In State v. Robinette, 1997-Ohio-343, (Robinette III) the Supreme Court of Ohio chose the latter course, but held that under federal law, the search in the case was not consensual. In Robinette III, then-Justice Evelyn Stratton (who replaced Justice Wright on the court) 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.”
And with the occasional exception, such as State v. Brown, 2003-Ohio- 3931, in which the court found that Article I, Section 14 of the Ohio Constitution provides greater protection than the Fourth Amendment against warrantless arrests for misdemeanors, the Ohio high court has tended to follow federal law in lockstep on Fourth Amendment issues. See, e.g. State v. Emerson, 2012-Ohio-5047 (a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and a defendant lacks standing to object to its use by the state in a subsequent criminal investigation. The decision mentions Article I, Section 14 but just states that it and the Fourth Amendment prohibit unreasonable searches, and that Article I, Section 14 protects the same interest and in a manner consistent with the Fourth Amendment); State v. Gardner, 2012-Ohio-5683 (An individual who is the subject of an outstanding arrest warrant does not forfeit all expectations of privacy protected by the Fourth Amendment to the U.S. Constitution and the Ohio Constitution, Article I, Section 14); State v. Kinney, 1998-Ohio-425 (a search warrant authorizing the search of “all persons” on a particular premises does not violate the Fourth Amendment nor the Ohio Constitution. Section 14, Article I of the Ohio Constitution is nearly identical in language, and its protections are coextensive with its federal counterpart); State v. Orr, 2001-Ohio-50 (the search and seizure provisions of the Ohio Constitution and the United States Constitution are implicated in cases involving vehicle stops at highway checkpoints because such stops constitute ‘seizures’ within the meaning of the Ohio Constitution and the United States Constitution even though the purpose of such stops is limited and the resulting detentions brief.); State v. Murrell, 2002-Ohio-1483 (when a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile under the Fourth Amendment and Section 14, Article I of the Ohio Constitution; those provisions are to be harmonized whenever possible); State v. Jordan, 2004-Ohio-6085, ¶ 55 (the Ohio Constitution does not provide greater protection than the Fourth Amendment to suppress evidence obtained from a police officer’s stop of an individual whose companion attempted to flee a high-crime area after realizing the presence of law enforcement); State v. Buzzard, , 2007-Ohio-373, ¶ 13, fn. 2 (“the parties and courts have analyzed this case under the express rubric of Fourth Amendment jurisprudence. Because the texts of Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution are virtually identical, we interpret the two provisions as affording the same protection”; State v. Smith, 2009-Ohio-6426 ¶ 10, fn. 1 (“While Smith has not raise a challenge based upon the Ohio Constitution, we note that the language of Section 14, Article I of the Ohio Constitution is virtually identical to the language of the Fourth Amendment and that this court has accordingly interpreted Section 14, Article I of the Ohio Constitution as affording the same protection as the Fourth Amendment in felony cases. In [Brown], however, we held that Section 14, Article I affords greater protection than the Fourth Amendment against warrantless arrests for minor misdemeanors.”).
Justice Pfeifer has continued to ask about protections under the Ohio Constitution.
In 2007, in State v. Oliver, 2007-Ohio-372, the Supreme Court of Ohio followed the U.S. Supreme Court decision in Hudson v. Michigan, 126 S.Ct. 2159 (2006), which held that even if the police violate the knock-and-announce rule before executing a search warrant, the Fourth Amendment does not necessarily require the suppression of all evidence found in the ensuing search.
Justice Pfeifer dissented from the majority opinion in Oliver, arguing that the court should decide the state Constitutional issue. He wrote, “this court should determine in this case whether the Ohio Constitution provides greater protections against forcible entries of homes than the United States Constitution does, and whether those protections include rendering inadmissible the fruits of such entries. To stop short of answering that question is a squandering of judicial resources. The author of Hudson, Justice Antonin Scalia, describes himself as an originalist in Constitutional matters; it appears, however, that when it comes to the Fourth Amendment, he and the slim majority in Hudson are minimalists. We owe it to the citizens of Ohio to determine now, in this case, whether Ohio jurisprudence should follow.”
More recently, by way of example, in State v. Hoffman, Slip Opinion No. 2014-Ohio-4795, in a 6-1 decision, the court held that the arrest warrants in the case were invalid because they were issued without a determination of probable cause, but suppression of the evidence was not required in the case because the police officers relied in good faith on existing appellate precedent validating the procedures then used in the Toledo Municipal Court.
Justice Pfeifer wrote the lone dissent in the case, continuing his longstanding interest in using the Ohio Constitution as an independent ground for greater protection for the rights of criminal defendants than the federal constitutional floor. He wrote that he had independently analyzed the facts of this case under Article I, Section 14 of the Ohio Constitution and would find that the issuance of the warrants violates the state constitution. He also wrote that he could be persuaded, as he has been in the past, that the Ohio Constitution provides greater protection than the federal constitution in the area of Fourth Amendment protections, but since Hoffman never argued that, “it is not necessary for this court to go beyond the Fourth Amendment to justify the result I espouse.”
And while not a Fourth Amendment issue, in May of 2014, Justice Pfeifer got into a testy exchange with the deputy attorney general at the oral argument of Cleveland v. McCardle, 2014-Ohio-2140, a speech protester case, about whether Article I, Section 11 of the Ohio Constitution (the Free Speech provision) provides greater protection in this area than the federal constitution does. The state stuck to its guns that no one had raised the issue, although Pfeifer sounded like he was ready to raise it sua sponte. In his solo dissent in the case, Pfeifer chided the parties for failing to bring a state constitutional challenge, commenting that the case might have come out differently if the protestors had brought a challenge under Article I Section 11 of the Ohio Constitution.
These are just some examples of Justice Pfeifer’s ongoing crusade for the new judicial federalism in Ohio. His quest is likely to continue for as long as he remains on the bench.
Student Contributor: Cameron Downer