Merit Decision: Court Finds State Constitutional Violation For Extraterritorial Traffic Stop. State v. Brown.

Update: a bill has been introduced in the legislature to allow peace officers in small townships to make arrests on interstate highways.  Read more about that here.

On June 23, 2015, the Supreme Court of Ohio issued a merit decision in State v. Brown,  2015-Ohio-2438. In a 5-2 opinion written by Justice O’Donnell, for himself, Chief Justice O’Connor, and Justices Pfeifer, Lanzinger, and O’Neill, the court held that a traffic stop for a minor misdemeanor outside the officer’s statutory jurisdiction or authority violates Article I, Section 14 of the Ohio Constitution. Justice French wrote a dissent, joined by Justice Kennedy.  The case was argued February 3, 2015.

Case Background

Lake Township police officer and canine handler Kelly Clark pulled onto I-280 from the median strip, and saw the passenger side tires of Terrence Brown’s car cross the solid white fog line for about 100 feet. As a result, Clark drove alongside Brown, pulled him over about two and a half miles past the place of the violation, and cited him for a marked lane violation. Brown was driving on a suspended license and had an active felony warrant in Michigan, but the record does not show that Clark knew this at the time.  Clark walked her dog around the car, which led to the discovery of 120 oxycodone pills and a baggie of marijuana. Brown was charged with aggravated possession of drugs. He moved to suppress the evidence, which was denied by the trial court. Brown then entered a no-contest plea to the charge, and was sentenced 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, finding that the stop violated Article I, Section 14 of the Ohio Constitution.

Read the oral argument preview of the case here and an analysis here.

Key Statute and 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 . . .”)

Fairborn v. Munkus, 28 Ohio St.2d 207 (1971) (At common law, police officers had no authority to make warrantless arrests outside the jurisdiction of the political entity that appointed them to office; unless they were in hot pursuit of a suspected felon fleeing that jurisdiction, officers making an extraterritorial arrest acted outside their official capacity and were therefore treated as private citizens.)

State v. Holbert, 38 Ohio St.2d 113, 116 (1974) (If a statute precludes township officers from enforcing the listed traffic laws, those officers cannot stop a motorist or make an arrest alleging such a violation.)

Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993) (“The Ohio Constitution is a document of independent force,” and can provide greater protection for individual rights and liberties than the U.S. Constitution)

State v. Robinette , 80 Ohio St.3d 234, 1997-Ohio-343 (1997) (Robinette III) ( “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.”)

State v. Jones, 88 Ohio St.3d 430, 727 N.E.2d 886 (2000) (Jones I) (Whether a search or seizure is reasonable is determined by weighing the competing interests involved and considering the extent of the officer’s intrusion on an individual’s liberty and privacy against the need to promote legitimate governmental interests.)

State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931 (Although the arrest for a minor misdemeanor does not violate the Fourth Amendment, “Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.”)

Atwater v. Lago Vista, 532 U.S. 318 (2001) (The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a minor misdemeanor seat belt violation punishable only by a fine.)

Virginia v. Moore, 553 U.S. 164 (2008) (“In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt.” 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 (“Jones II”) (“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.”)

Merit Decision

Justice O’Donnell likes to write his decisions by summarizing the positions of the parties, so here they are:

State’s Position

The protections against unreasonable searches and seizures are nearly the same under the Fourth Amendment and Article I Section 14 of the Ohio Constitution, and the provisions should be harmonized. This Ohio Constitutional provision should not be read to afford greater protection than the Fourth Amendment.  The Ohio high court has already held that a search or seizure outside an officer’s territorial jurisdiction does not violate the Fourth Amendment if the officer has probable cause, and the court should now find there is no violation of Article I Section 14 either.  A statutory violation does not, in and of itself, rise to the level of a constitutional violation requiring suppression of the evidence.  The fact that there is no remedy for such a statutory violation is a policy choice of the legislature that should not be disturbed.

Brown’s Position

The township officer lacked statutory authority to stop any driver on an interstate highway for a marked lane violation. In this case, given the fact that the Ohio Constitution is a document of independent force, the court should, as it has done in the past, balance the government’s interest against the privacy of the accused, and find that the officer’s violation of this statute rose to the level of a state constitutional violation, requiring suppression of the drug evidence.

Issue Presented

Does a traffic stop made without statutory jurisdiction or authority (this part is uncontested) violate the protection against unreasonable searches and seizures afforded by Article I Section 14 of the Ohio Constitution.

Short Answer: yes.

Majority Decision

The first part of the decision traces the common law rule holding that police officers had no authority to make warrantless arrests outside their jurisdiction unless in hot pursuit, and details the related statutory law enacted since.

R.C. 4513.39(A) gives the authority to enforce traffic laws on state highways—such as the marked lane violation at issue in this case–only to the state highway patrol and sheriffs and their deputies.  That would not include Office Clark. While subsection (B) provides some exceptions to that rule, none apply to Clark.

Conclusion from Statutory Provisions

Officer Clark lacked statutory authority to stop Brown for a marked line violation on an interstate highway.

New Judicial Federalism

The rest of the decision, and all of Justice French’s dissent, turns on the new judicial federalism—a doctrine that allows for states to find greater protection under their own constitutions for individual rights and protections than exist under the U.S. Constitution.  Read more about that here.

Earlier Precedent

Previously, in 2003, in State v. Brown, (not this case) the defendant was arrested for jaywalking, a minor misdemeanor offense, and a search incident to that arrest turned up crack cocaine.  Brown was indicted on the drug charge. The trial court suppressed the drug evidence because in Ohio, pursuant to R.C. 2935.26, the police had no authority to make an arrest for a minor misdemeanor offense. The Supreme Court of Ohio upheld the suppression on state constitutional grounds, finding that Article I Section 14 of the Ohio Constitution provides greater protection in minor misdemeanor cases against searches and seizures by law enforcement who lack the authority to make an arrest.

And even though in 2009, in ­State v. Jones, the court held that a traffic stop made outside an officer’s statutory jurisdiction, but based on probable cause, was not a Fourth Amendment violation, that decision was not based on the Ohio Constitution.

The majority concludes that the government’s interest in letting an officer without statutory jurisdiction or authority make a traffic stop for a minor misdemeanor offense under these circumstances is minimal and is outweighed by the invasion of liberty and privacy of the person stopped.

Case Holding

A traffic stop for a minor misdemeanor outside a police officer’s statutory jurisdiction or authority violates Article I, Section 14 of the Ohio Constitution.

Justice French’s Dissent

Justice French wrote a very spirited dissent, joined by Justice Kennedy. She chastises the majority for creating new state constitutional rights for the second time in recent months without any real justification for doing so (in April, in State v. Bode, 2015-Ohio-1519, the court found greater protection under Ohio’s Due Course of Law provision for uncounseled juveniles facing the possibility of confinement than exists under the Due Process clause of the U.S. Constitution. Justice French dissented in that case as well).

French accuses the majority of departing from the federal constitutional floor in this case without any real analysis or compelling reason to do so. She notes that the language of the Fourth Amendment and Article I Section 14 is nearly identical, and further observes that the Oho framers relied on the Fourth Amendment in drafting Ohio’s search-and-seizure provisions in 1851.

“The framers of Article I, Section 14 of the Ohio Constitution intentionally brought the text of Ohio’s provision regarding searches and seizures by state actors in line with the text of the Fourth Amendment, which governed searches and seizures by the federal government. There is simply no indication that the framers intended Article I, Section 14 of the Ohio Constitution to provide greater protections against state action than the Fourth Amendment provides against federal action. Nor does the majority in this case suggest otherwise,” wrote French. She reminded the majority that it has said more than once that absent any compelling reasons, the provisions of Article I Section 14 and the Fourth Amendment should be considered coextensive, and should be harmonized.

French criticizes the majority for relying solely on the 2003 Brown decision, characterizing that as an “outlier” case. (The Assistant Attorney General characterized Brown I that way at oral argument.) She also criticizes the majority for using the Jones I balancing test, which was rejected by the U.S. Supreme Court in Virginia v. Moore,  as justification for distinguishing Article I Section 14 from the Fourth Amendment in this case.

“The majority offers no compelling reason, other than blind reliance on Brown, for applying a balancing test to determine whether a stop based on probable cause is reasonable under Article I, Section 14 of the Ohio Constitution when the existence of probable cause conclusively demonstrates the reasonableness of the stop under the Fourth Amendment.”

French would thus find that the reasoning in Jones II, which held that a stop is reasonable under the Fourth Amendment when 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, also applies under Article I Section 14 of the Ohio Constitution, and thus would find no state or federal constitutional violation in this case.

In short, French would buy the state’s argument, while the majority bought Brown’s.

Case Syllabus

None

Concluding Observations

I called this for Brown, writing that the victory would likely be modest and narrow, but a win nonetheless for the continued vitality of the new judicial federalism in Ohio. Here’s what I wrote after the oral argument:

“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 Constitution 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.”

I’ve said on a number of occasions that I am a big fan of the new judicial federalism. I think that Justice French’s criticism of the majority for not really providing much analytical or historical basis for finding greater protection here was a fair one, and the court generally has tended to harmonize its search-and-seizure jurisprudence with that of the Fourth Amendment. Still, if the court chooses to use the balancing test of government interest versus individual privacy in this minor misdemeanor context as a matter of state constitutional law, it is free to do so.  But I think more underpinning would have been desirable.

Bottom line, though, is I think all the justices in the majority were bothered by the lack of any remedy for a state statutory violation here.  At oral argument, in the key question of the day, Justice O’Donnell, who really dominated the questioning, asked the prosecutor what the remedy should be for a police officer stopping motorists without jurisdiction to do so, in violation of the statute.  When the prosecutor answered it should be a statutory remedy, and O’Donnell asked what that should be, the prosecutor answered that he didn’t know. The Assistant AG clarified that there was none, and that was the policy choice of the General Assembly.  Watching the argument, I didn’t think that sat well.  At one point the Chief commented that without a statutory remedy, where else was there to look but the constitution? And Justice O’Donnell asked, if an officer acts contrary to statutory authority, stops someone incorrectly, and searches the vehicle, why wouldn’t the search be the fruit of the improper action?

Interestingly, in the Bode case, criticized by Justice Kennedy in her dissent here, Justice O’Donnell joined Justices French and Kennedy in taking exception to finding greater protection under the Ohio Constitution in that context. But not in this one.

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