On February 12, 2015, the Supreme Court of Ohio handed down a merit decision in State v. Jones, 2015-Ohio-483. In a unanimous opinion written by Justice Lanzinger, the court held that the proper standard to determine whether probable cause exists to issue a search warrant is the totality of the circumstances, and a single trash pull can be a part of those circumstances. The case was argued September 9, 2014.
A Cleveland narcotics detective sought a warrant to search a house at 1116 Rowley Avenue in Cleveland. The supporting affidavit contained these facts:
In October of 2011 the police had arrested a man named Taylor for making methamphetamine (meth) at that address. In December of 2011 one Lauren Jones made a report about a burglary at that address, and about a man who refused to leave the premises. The man arrested in that incident was known to the police to be involved with manufacturing meth.
The officer had also learned from a confidential informant that an overweight African American female named Lauren was engaged in the manufacture and sale of meth in the Cleveland area. Two other persons later arrested for making meth identified a woman named Jen-Jen Chappell as a known “meth cook, ” and reported that she had moved her operation to Rowley Avenue.
About three months after the Rowley Avenue burglary, the narcotics detective who later sought the warrant was at the Cuyahoga County Justice Center on an unrelated matter. The detective saw Chappell-whom he knew-sitting next to an overweight African American woman. The detective found out from a prosecutor that the woman with Chappell was Lauren Jones, and that Jones lived at 1116 Rowley Avenue. A computer check confirmed this information.
Several days later, armed with this information, the police decided to perform a trash pull at Jones’ Rowley Avenue residence. The trash pull yielded mail addressed to Jones at the Rowley avenue address, empty bottles of chemicals known to be used in the production of meth, and residue on some plastic tubing later confirmed to be meth.
Based on these facts, within 24 hours of the trash pull, the officers got a warrant to search the residence at 1116 Rowley Avenue. They found evidence of an active meth lab at that address, and evidence linking Jones to the production of the drug.
Jones was subsequently charged with eight drug related offenses. Jones filed a motion to suppress the evidence, asserting that the search warrant was improperly granted. The trial judge granted the motion to suppress, finding that the single trash pull was insufficient to support the issuance of the warrant. The Eighth District Court of Appeals unanimously affirmed.
The state appealed, arguing that a single trash pull conducted just prior to the issuance of the warrant corroborating tips and background information involving drug activity will be sufficient to establish probable cause.
Read the oral argument preview of the case here, and the analysis of the argument here.
Illinois v. Gates, 462 U.S.213 (1983)(totality of circumstances test is to be used to determine whether probable cause supports the issuance of a search warrant.)
State v. George, 45 Ohio St.3d 325, 544 N.E. 2d (1989) (Judges or magistrates who sign a warrant must base their decision on a common-sense analysis discerned from the totality of the circumstances given in the affidavit. Additionally, great deference should be given to the signer of the warrant. Doubtful cases should be resolved in favor of upholding the warrant.)
State v. Weimer, 2009-Ohio-4983 (8th dist.) (A single trash pull must be viewed in isolation when determining whether probable cause has been met if other supporting pieces of evidence are flawed.)
This one is short and simple. The proper test to use to determine whether probable cause exists to issue a search warrant is the totality of the circumstances test set forth in Illinois v. Gates. Viewing a trash pull in isolation in this context is incorrect, and to the extent the Eighth District held that, it was incorrect. Instead, the trash pull must be viewed as part of the totality of the circumstances, along with everything else. And there was plenty “else” in the affidavit (see case background for what all that “else” was) to support the warrant.
What the Court Didn’t Do
The court adopted the state’s proposed proposition of law—“a single trash pull conducted just prior to the issuance of the warrant corroborating tips and background information involving drug activity will be sufficient to establish probable cause”—but declined to adopt it as a bright line rule, or as syllabus law. And the court expressly declined to adopt the argument posited by the Attorney General’s office—that a trash pull must be viewed in isolation when determining whether probable cause has been established to issue a warrant.
“In reviewing a decision on a motion to suppress when deciding whether a corroborating trash pull is sufficient to establish probable cause, we apply the totality-of-the-circumstances test. Based on the totality of the circumstances in this case, we conclude that the motion to suppress should have been denied…”
The case was reversed and remanded and sent back to the trial court.
After argument, I wrote that it was clear the justices did not see this as a single trash pull case. I wrote, “ I think a majority of the justices will find that the totality of the circumstances in the case, like the tips, and the identification happenstance at the Justice Center, combined with the trash pull was sufficient for the search warrant.”
All four lawyers who argued in the case agreed the totality of the circumstances test was the proper one to apply in this case. The prosecution and defense just disagreed about whether there were sufficient circumstances other than the trash pull. It was clear from the questioning that the justices did. And while the court did adopt the state’s proposed proposition of law, but not as a bright line rule, it also did not disagree with Jones’ proposed counter proposition of law, which was “a single trash pull does not necessarily supply sufficient probable cause to support the issuance of a search warrant.”
If there was a loser in the case, it was the Attorney General’s office, which argued that a single trash pull should be enough for a warrant, and was enough in this case. These exchanges occurred between the court and the Assistant Attorney General:
From Chief Justice O’C0nnor:
“Why are you making it so complicated? You’ve got the tip and the investigation, limited though it was, you’ve got the trash pull. I think you are going much farther and making more justices more uncomfortable with your position than when you started.”
And Justice O’Donnell followed right on the heels of the Chief’s admonishment with this:
“What you should be hearing from this court is this is not a single trash pull case; there is a lot of other evidence here. You don’t have to argue the single trash pull because this is not a single trash pull case. There are other things attendant to that, don’t you agree?” (he did, at that point!)
One last thing. In agreeing that the totality of the circumstances case from the U.S. Supreme Court in Illinois v. Gates was controlling, Justice Lanzinger wrote, “we have held that Article I, Section 14 of the Ohio Constitution affords the same protection as the Fourth Amendment in felony cases,” citing State v. Smith, 2009-Ohio-6426. This is of particular new judicial federalism interest at the moment, because in State of Ohio v. Terrence Brown, 2014-0104, argued February 3, 2015, the defense is arguing for greater protection under Article I, Section 14 of the Ohio Constitution than is found under the Fourth Amendment. But Brown is a misdemeanor case, thus Lanzinger’s comment—limiting harmonization to felonies– may be revealing.