What’s on their Minds: The Ohio Constitution and Remediless Statutory Violations. State v. Terrence Brown.

Update: On June 23, 2015, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“So now we have a constitution that is not self-executing, and we have a statute which is not self-executing, and we’re the Supreme Court and everybody is throwing their hands in the air saying what’s to be done, and your answer is nothing?” Justice Pfeifer, to the Wood County Prosecutor, about what the consequence should be for a statutory violation in this case.

On February 3, 2015, the Supreme Court of Ohio heard 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 Article I, Section 14 of the Ohio Constitution.

Case Background

While Lake Township police officer Kelly Clark was parked in a marked patrol car in the median, watching southbound traffic on I-280, she saw the passenger side tires of appellee Terrence Brown’s car drift over the white fog line. As a result, Clark initiated a traffic stop on the interstate, pulled Brown over, and cited him for a marked lane violation. When Clark called in the pertinent 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 search turned up marijuana and oxycodone. Brown was charged with one count of aggravated possession of drugs, a second degree felony. He moved to suppress the evidence, which was denied by the trial court. Brown then entered a no-contest plea to an amended charge of aggravated drug possession.  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. The Sixth District Court of Appeals reversed the trial court. The appeals court held 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. But the appeals court went on to hold, sua sponte, that the stop violated Article I, Section 14 of the Ohio Constitution, which provides greater protection against an officer making an out-of-jurisdiction traffic stop for a minor traffic violation than does the U.S. Constitution.

Read the oral argument preview of the case here.

Key Precedent

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 (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. Brown, 2003-Ohio- 3931 (Article I, Section 14 of the Ohio Constitution provides greater protection than the Fourth Amendment against warrantless arrests for misdemeanors)

Virginia v. Moore, 553 U.S. 164 (2008) (Rather than issuing the summons required by Virginia law, police arrested defendant for driving on a suspended license and a search incident to arrest yielded crack cocaine. Although the search violated a Virginia statute, the arrest was based upon probable cause and therefore did not violate the Fourth Amendment.)

State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316 (A law-enforcement officer who personally observes a traffic violation while outside the officer’s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is not unreasonable under the Fourth Amendment to the United States Constitution.)

At Oral Argument

It is undisputed in this case that the police officer who stopped Brown was outside her territorial jurisdiction, and was thus in violation of R.C. 4513.39.

State’s Argument

The Wood county prosecutor shared argument time with a deputy state solicitor from the AG’s office.

Prosecutor’s Argument

The language in the Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the Ohio Constitution is virtually identical, and the Supreme Court of Ohio has consistently held that the provisions should be harmonized whenever possible. The Sixth District Court of Appeals has introduced uncertainty into an otherwise bright line rule.  Granted, there was a statutory violation by the police officer in this case, but it is up to the legislature to determine what remedy, if any, there should be for a statutory violation.  In this case, there is none, but that is the legislature’s call.  But any remedy should be a statutory remedy, not a constitutional remedy.  Any kind of balancing test in this area would cause officers to hesitate, with potentially disastrous results.

This court has indicated on more than one occasion that an officer outside of the officer’s jurisdiction can make a stop, and should conform to that precedent. Based on its past precedent, this court should hold that the violation of the statute in this case does not amount to a violation of either the state or the federal constitution.

Attorney General’s Argument

There is no remedy in the statute involved here, and no private right of action.   This court has recognized in Jones that it is up to the legislature to determine whether to supply a remedy for the violation of a state statute. The statute in this case doesn’t protect a person’s liberty interest the way the statute did in Brown­-it is more a sharing of police resources.  And Brown is the outlier case from this court. The general rule is harmonization with the Fourth Amendment, and this case provides no reason to depart from harmonization.

This court has recognized, and should again, that it should not constitutionalize the violation of a state statute, because to do so would disincentivize the legislature from creating protections beyond the bounds of the Constitution. Further, if the court provides a remedy here it is usurping the job of the General Assembly.

Brown’s Argument

This case was strictly decided on its facts, which were very specific in this case. Brown didn’t commit very much of an offense—his tires were over the fog line for about a second. In other cases involving extraterritorial stops, there were other factors involving danger to the public, like a high speed chase or alcohol. In this case there were none.  And there was no indication the officer was not aware of the law.

What Was On Their Minds

The Ohio Constitution/New Judicial Federalism

Why would the court  regard an interpretation of the Ohio Constitution by the Court of Appeals as an attempt to usurp its authority, Justice Pfeifer asked the prosecutor, who suggested that it was. Isn’t that just the natural process of things? This court has from time to time in  specific situations found greater protections under the Ohio Constitution than in the U.S. he commented, noting that “no less a scholar” than [U.S. Court of Appeals Judge ] Jeff Sutton has advocated that litigants should look first to the Ohio Constitution before they look to the U.S. Constitution. Hasn’t this court been very fussy about limiting officers to performing their duties within their jurisdictions?

The Court of Appeals said this is an unreasonable search and violates the Ohio Constitution. What is wrong with that position, asked Justice O’Donnell?

Are there persuasive reasons in this case to find that Article I, Section 14 should not be harmonized with the Fourth Amendment in this case, asked Chief Justice O’Connor, in a key question of the day?

In another key exchange of the day, Justice Lanzinger remarked that it all comes down to whether the court wants find that the Ohio Constitution provides more protection than the federal Constitution. Is there anything for the court to write in this case, she asked?

Statutory Violations

Can a statutory violation precipitate a constitutional violation, asked Chief Justice O’Connor? Without a statutory remedy you have no place to look but the constitution? When she asked if defense counsel contested the probable cause for the stop, he said no.

What deterrent would there be if the court were to look at this as not being a Constitutional violation asked Justice O’Donnell, in a key question of the day.

Isn’t the common thread that goes through these cases that when you are outside your jurisdiction you may have the ability to make the stop, but not the arrest or the search, asked Justice O’Neill? You must be accompanied by someone who has jurisdiction? When he asked if a police officer in this Toledo township could make a stop and an arrest and a search in Ashtabula county, the prosecutor answered that that would violate the law but not the Constitution.


In the key question of the day, Justice O’Donnell asked the prosecutor what the remedy should be for a police officer stopping motorists without jurisdiction, in violation of the statute.  When the prosecutor answered it should be a statutory remedy, and O’Donnell asked what it should be, the prosecutor answered that he didn’t know. O’Donnell later asked the prosecutor what result the state was seeking from the court in this case.  If you won, what would it look like, he asked?  The answer was, a determination that the protections under the state and federal constitutions are the same, and that the statutory violation in this case did not amount to a constitutional violation. The General Assembly set out the authority of a police officer in a township for our state. And if that officer acts contrary to that authority, and stops someone incorrectly, and searches the vehicle, why wouldn’t the search be the fruit of the improper action, O’Donnell asked?

Is the remedy, just stay within your jurisdiction, asked Chief Justice O’Connor?

Jones  and Brown and Robinette

Did Jones overrule Brown asked Justice French? (answer: no) Was the state asking the court to overrule Brown? ( answer: no) In Jones, didn’t the court move away from any kind of balancing test?

How does Robinette help your case, asked Justice Pfeifer?

Would we have to overrule Brown which says the Ohio Constitution gives greater protection in warrantless traffic situations involving minor misdemeanors like this, asked Justice Lanzinger?

Why shouldn’t the court follow Robinette in this case, asked Justice O’Donnell?

How it Looks from the Bleachers

To Professor Bettman

Like a win for Brown, although a modest and narrow one, but important for the continued vitality of the new judicial federalism in Ohio.

One of the remarkable things about this case is that the argument was about forty minutes, and the state took more than thirty minutes of that time, which is very unusual.  The Wood County Prosecutor, who was very fair minded about the case law, was unfortunately also very ineffective, and really needed help from the Deputy Solicitor, who made many of the same points, but more effectively.  And Brown’s lawyer said almost nothing, wisely sensing the justices seemed to be on his side.

As I anticipated in this preview post, Justice Pfeifer led off the questioning right off the bat about the Ohio Constitution being a document of independent force.  Despite his ongoing enthusiasm for this subject (and one which I have long shared) the court has in fact, as both lawyers for the state argued, tended to remain in lockstep with the U.S. Constitution on Fourth Amendment issues, and most of the case law from the Supreme Court of Ohio in this area has harmonized Article I, Section 14 with the Fourth Amendment.  Most of the case law supports that position, with Jones being of particular relevance here, and yet the justices seemed curiously unreceptive to that position during this particular argument.

I also think that both Justices Pfeifer and O’Donnell misspoke about the final holding in Robinette– after an attempt to carve out greater protections in the first round of that case, when the case was remanded from the U.S. Supreme Court, the Supreme Court of Ohio opted for “harmonization.” So that case didn’t actually help the defendant in this case, but I didn’t think either lawyer for the state effectively drove that point home.

And yet, Robinette did say the cases should be harmonized “unless there is persuasive reason to find otherwise,” and I think this is going to be such a case.

This case seems closest to the 2003 decision State v. Brown, 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. Justices O’Donnell, Pfeifer, and Chief Justice O’Connor, and Justices Lanzinger and O’Neill to a somewhat lesser extent, seemed especially put off by the lack of any effective remedy for the violation of the territorial jurisdiction statute in this case, and the absence of any kind of exigent circumstances for going outside the officer’s jurisdiction.  So, I think the court is going to follow Brown (the other one) in this case, and find greater protection under the Ohio Constitutions in this limited circumstance. But I think Justice French is likely to find that both Jones and  Moore require a finding for the state in this case.

To Student Contributor Cameron Downer

Looks like a win for Brown, Justice Pfeifer, and New Judicial Federalism.

Shortly after the state began to argue that the Sixth District usurped the high court’s authority by ruling under the Ohio Constitution, Justice Pfeifer quickly responded saying counsel’s categorization of what the appeals court did was very unfair and that maybe people should look first to the state constitution rather than to the federal. Chief Justice O’Connor and Justice O’Donnell followed by asking why a statutory violation cannot precipitate a constitutional violation and what the state would suggest as a remedy for the undisputed violation. Justice O’Neill chimed in and asked counsel whether a township officer on one side of the state can pull someone over on the other side of the state without constitutional repercussion.­­ Justice Lanzinger and Justice French asked more doctrinal questions, such as whether the case comes down to giving the Ohio Constitution more protection than the Federal and whether the state can rely on State v. Jones without overruling State v. Brown.

After eighteen and a half minutes of questioning the prosecutor, counsel for the Attorney General’s office was given an opportunity to make argument. Counsel began argument by stating that it is in the province of the General Assembly to create statutory remedies and that the statute did not specifically involve an individual’s liberty interests. Pfeifer then asked counsel what should be done to remedy the violation considering the federal and state constitutions, as well as the statute prohibiting the stop at issue, are not self-executing. O’Connor subsequently commented that the General Assembly can create protection by creating a remedy, but if it fails to do so there may be no place to look for a remedy save for the constitution. O’Donnell asked why the fruit this poisonous tree, i.e. the result of the violation, should not be excluded here as it is in other situations. Lanzinger, similar to Justice French’s prior question, asked whether the court would have to overrule Brown considering it states that the Ohio Constitution provides greater protections in warrantless traffic situations and minor misdemeanors.

Lastly, counsel for Brown argued that this particular case comes down to a very narrow fact set in which an officer without jurisdiction made a traffic stop where there was no imminent danger or exigent circumstances. Justice French questioned whether counsel suggests that the court engage in the balancing test that the U.S. Supreme Court overturned in Virginia v. Moore. Lanzinger asked whether counsel believed the case warranted the court writing on it, or whether it was simply required an application of the law. O’Neill, noting his question involved information outside the record, pondered whether the township paid its officers’ salaries by policing the highway considering there is likely more crime in I-280 than in the township itself. Just over seven minutes into the argument, counsel rested as there were no other questions from the court.

Overall, the line of questioning made it clear that Pfeifer, O’Connor, O’Donnell, and O’Neill thought that the application of the exclusionary rule, albeit from the Ohio Constitution, may be proper for this statutory violation. Lanzinger and French were not as easy to read and, as always, no questioning from Kennedy. But with the majority, I think this is a win for Brown.


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