Update: On June 23, 2015, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On February 3, 2015, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Terrence Brown, 2014-0104. At issue in this case is whether evidence obtained from a traffic stop made without statutory authority for a de minimus violation may be suppressed under the Fourth Amendment or Article I, Section 14 of the Ohio Constitution.
While driving on I-280 in Wood County, Appellee Terrence Brown’s passenger side tires moved outside the white line of the highway while on a curve approaching an exit ramp. Officer Kelly Clark was parked in a marked patrol car in the median, watching southbound traffic on the interstate. As she pulled out to pursue another car, she saw Brown’s marked lanes violation. Officer Clark then proceeded to pull Brown over based upon the traffic violation. She told Brown he was being cited for a marked lane violation.
When Clark called in the information, she learned that Brown was driving on a suspended license. Based on her experience, the officer observed a number of different “criminal indicators,” suggesting to her that the driver might be involved in more serious criminal activity. Clark then deployed her dog to conduct a sniff search of Brown’s vehicle. The dog alerted on the car. A subsequent warrantless search turned up marijuana and oxycodone. Brown was charged with one count of aggravated possession of drugs, a second degree felony. Because Officer Clark was a township police officer, she did not have the statutory authority to make the traffic stop; instead, R.C. 4513.39 delegates the authority to make arrests on the highways to the state highway patrol and sheriffs. It is undisputed in the case that the officer lacked the statutory authority to make the stop.
On February 22, 2012, Brown filed a motion to suppress the evidence found as a result of the stop and an evidentiary hearing was held on the motion. On June 20, the trial court denied the motion. Subsequently on September 14, Brown entered a no-contest plea to an amended charge of aggravated drug possession. On November 26, the trial court sentenced Brown to a mandatory three-year prison term.
Brown appealed the trial court’s denial of his motion to suppress arguing that his Fourth Amendment rights were violated. On December 6, 2013, the Sixth District Court of Appeals reversed the trial court under Article I, Section 14 of the Ohio Constitution.
The Sixth District reasoned that although the traffic stop was made in violation of R.C. 4513.39, it did not violate the Fourth Amendment of the U.S. Constitution. However, the Sixth District held sua sponte that the Ohio Constitution provides greater protection in this circumstance than the Fourth Amendment. Thus, after balancing the privacy right of an individual against the interest of the State in having an officer make an extra-territorial traffic stop for a minor traffic violation, the court found that the Ohio Constitution was implicated and the exclusionary rule applies.
Fourth Amendment to the U.S. Constitution (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.)
Ohio Constitution Article I, Section 14 (The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.)
R.C. 4513.39 (“The state highway patrol and sheriffs or their deputies shall exercise, to the exclusion of all other peace officers . . . the power to make arrests for violations on all state highways . . .”)
State v. Robinette III, 80 Ohio St.3d 234, 1997-Ohio-343 (1997) (“case law indicates that…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.”)
State v. Wilmonth, 22 Ohio St.3d 251 (1986) (“The exclusionary rule has been applied by this court to violations of constitutional nature only.. . . [T]his court enunciated the policy that the exclusionary rule would not be applied to statutory violations falling short of constitutional violations, absent a legislative mandate requiring the application of the exclusionary rule.”)
State v. Weideman, 94 Ohio St. 3d 501 (2002) (“the violation of a state statute may rise to the level of a constitutional violation.”)
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) (. . . [A] state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee.”)
State v. Hoffman, 2014-Ohio- 4795, ¶ 11. (“The language of Article I, Section 14 of the Ohio Constitution is virtually identical to the language in the Fourth Amendment, and we have interpreted Article I, Section 14 as affording the same protection as the Fourth Amendment….”)
The State argues that the Sixth District overstepped its bounds by sua sponte finding that a violation of the territorial jurisdiction statute triggers an Ohio Constitutional violation. First, finding that the Ohio Constitution provides greater protection than the Fourth Amendment in this case is a drastic policy change that should be decided by the Supreme Court of Ohio as the ultimate interpreter of the Ohio Constitution. Yet the Sixth District Court of Appeals cloaked itself with the mantle of an umpire of the fundamental law in Ohio and bestowed a state constitutional protection heretofore never ascribed by any court—at any level—in Ohio
Second, lower courts must follow the Ohio Supreme Court’s holding in State v. Robinette III, and harmonize Article I, Section 14 of the Ohio Constitution with the Fourth Amendment to the United States Constitution. The Fourth Amendment and Article I, Section 14 of the Ohio Constitution are nearly identical in language and support a long line of Ohio case law harmonizing the two constitutional provisions.
Third, it was improper for the Sixth District to raise a mere statutory violation to a constitutional violation. It is logically and almost universally accepted that technical violations do not rise to the level of constitutional error and therefore do not require the application of the exclusionary rule.
Lastly, looking at statutes similar to R.C. 4513.39 and how they have been interpreted by Ohio courts shows that application of the exclusionary rule is inappropriate. Statutes applying to the State Highway Patrol, Sheriff’s Department, Park Rangers, Campus Police Officers, Metropolitan Housing Authority Police Officers, Liquor Control Enforcement Agents, Parole Officers, and Officers involved in the transportation of arrested persons that similarly do not explicitly provide a remedy for a violation have not been interpreted as requiring the application of the exclusionary rule. When a statute fails to provide a remedy, it is the job of the General Assembly, not the courts, to provide one.
In this case, the statutory violation at issue violates neither the federal nor the state constitution.
Brown argues that the appeals court correctly balanced his privacy right against the State’s interest in the extraterritorial traffic stop to find that Officer Clark’s statutory violation offends the constitutional protection against unlawful search and seizures under the Ohio Constitution.
First, if the Supreme Court of Ohio reverses, it is not illogical to assume that any officer, anywhere, at any time, in anyplace, without risk of penalty, will make a stop, search and seizure of an individual despite lacking the statutory authority to do so. Thus, the exclusionary rule need apply to deter and prevent these statutory violations.
Second, contrary to the State’s argument, the Supreme Court of Ohio recognized in State v. Weideman that the violation of a state statute may rise to the level of a constitutional violation. The State has conceded that a statutory violation occurred.
Lastly, Article I, Section 14 of the Ohio Constitution can diverge from the Fourth Amendment and provide greater protection. It is settled law that the U.S. Constitution provides the floor, not the ceiling, for the protection of individual rights. State courts are free to interpret their own constitutions as providing greater protections than those afforded under the federal Constitution. Further, it insults the dignity of the state and denies citizens the fullest protection of their rights when state courts interpret their state constitutions as merely as a restatement of the federal constitution.
State’s Proposed Proposition of Law
A violation of R.C. 4513.39 does not rise to the level of a constitutional violation under Article I, Section 14 of the Ohio Constitution or the Fourth Amendment to the United States Constitution; therefore, the exclusionary rule cannot be invoked to suppress the fruits of any such statutory violation.
Amicus Briefs in Support of the State
The Buckeye State Sheriff’s Association, the Lucas County Prosecutor, the Office of the Montgomery County Prosecuting Attorney, the Ohio Attorney General, and the Ohio Prosecuting Attorneys Association all filed amici in support of the state.
The Buckeye State Sheriff’s Association argues that the decision of the appellate court holding that a statutory violation of R.C. 4513.39 constitutes a violation of the Ohio Constitution is contrary to existing law and should be reversed.
The Lucas County Prosecutor argues that Article I, Section 14 of the Ohio Constitution is not violated when a law enforcement officer has probable cause to make a traffic stop.
The Office of the Montgomery County Prosecuting Attorney argues than an extraterritorial traffic stop made in violation of R.C. 4513.39 constitutes a statutory violation only and does not rise to the level of an unreasonable search and seizure under the Fourth Amendment or Article I, Section 14 of the Ohio Constitution. Evidence discovered and seized during such a stop, therefore, is not subject to suppression under the exclusionary rule.
The Ohio Attorney General argues that a police officer does not violate the Fourth Amendment when the officer makes an out-of-jurisdiction traffic stop in violation of state law so long as the officer has probable cause for the stop. Accordingly, because Article I, Section 14 of the Ohio Constitution has the same substantive reach as the Fourth Amendment, that type of out-of-jurisdiction traffic stop does not violate the Ohio Constitution.
Lastly, the Ohio Prosecuting Attorneys Association argues that the constitutionality of a seizure under the Ohio Constitution turns solely on whether there is probable cause or reasonable suspicion. The Ohio Constitution does not require any additional balancing of the government’s interest against the individual’s interest in privacy.
Amicus Brief in Support of Brown
The Office of the Ohio Public Defender filed an amicus in support of Brown. The Public Defender argues that because the Sixth District did not create a per se rules that an unauthorized stop by an officer pursuant to R.C. 4513.39 was a violation of Ohio’s Constitution, the case should be dismissed as improvidently granted or the decision of the Sixth District affirmed.
Student Contributor: Cameron Downer