Oral Argument Preview: Is the Exclusionary Rule a Proper Remedy for the Violation of Ohio’s Knock-and-Announce Rule for Evidence Seized Pursuant to a Valid Search Warrant? State of Ohio v. Sherri Bembry and Harsimran Singh.

Update: On October 10, 2017, the Supreme Court of Ohio issued a merit decision in this case.  Read the analysis here.

Read the analysis of the argument here.

On March 1, 2017, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Sherri Bembry and Harsimran Singh, 2016-0238. At issue in the case is whether the exclusionary rule is a proper remedy for the violation of Ohio’s knock-and-announce rule for evidence obtained in the course of executing a valid search warrant.

Case Background

After submitting an affidavit alleging two controlled buys of heroin between a confidential informant and Harsimran Singh (“Singh”), a detective with the Boardman Police Department received a search warrant for a search of Singh’s residence. About three days later, on November 2, 2012, the detective and six other Boardman police officers executed the search warrant. Upon their arrival, the police knocked for approximately 30 seconds before the officers heard a male ask “Who is it?” The police then replied, “Police, open the door,” and waited approximately 15 seconds for a response before making a forcible entry. It is undisputed that by failing to announce their purpose, i.e., their intent to execute the search warrant, the Boardman police violated part of R.C. 2935.12, Ohio’s knock-and-announce rule.

Once inside Singh’s apartment, the police encountered both Singh and Sherry Bembry (“Bembry”) and conducted a search of the residence. Ultimately, the police seized several items named in the warrant, including 0.7 of a gram of heroin, and took Singh and Bembry into custody. Bembry was subsequently indicted  for permitting drug abuse, and Singh was charged with possession of heroin, trafficking in heroin, and receiving stolen property with an accompanying forfeiture specification.

Bembry and Singh (collectively, “Defendants”) filed a joint motion to suppress, alleging that the evidence obtained during the search should be excluded because of the police violation of the knock-and-announce rule. The trial agreed and granted the motion, concluding (1) the affidavit in support of the search warrant was supported by probable cause, (2) the police violated the knock-and-announce rule when they failed to announce their purpose for demanding admittance into the apartment, and (3) there were no exigent circumstances that justified the violation. While conceding the violation, the State appealed, contending that exclusion was an improper remedy for a violation of the knock-and-announce rule.

In a unanimous opinion authored by Judge DeGenaro, and joined by Judges Donofrio and Waite, the Seventh District reversed the trial court, finding that it had erred in granting the motion to suppress. Relying primarily on the U.S. Supreme Court’s decision in Hudson, the Seventh District concluded that the exclusionary rule was an inapplicable remedy where the evidence was obtained in the course of executing a valid search warrant, regardless of the failure to knock and announce.

Votes to Accept the Case

Yes: Justices French, Pfeifer, Lanzinger and O’Neill.

No: Chief Justice O’Connor and Justices O’Donnell, and Kennedy.

Key Statutes and Precedent

Fourth Amendment to the United States 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 persons 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. 2935.12 (Codification of Knock-and-Announce Rule)

(A) When making an arrest or executing an arrest warrant or summons in lieu of an arrest warrant, or when executing a search warrant, the peace officer, law enforcement officer, or other authorized individual making the arrest or executing the warrant or summons may break down an outer or inner door or window of a dwelling house or other building, if, after notice of his intention to make the arrest or to execute the warrant or summons, he is refused admittance, but the law enforcement officer or other authorized individual executing a search warrant shall not enter a house or building not described in the warrant.

(B) The precondition for nonconsensual, forcible entry established by division (A) of this section is subject to waiver, as it applies to the execution of a search warrant, in accordance with section 2933.231 of the Revised Code.

Hudson v. Michigan, 547 U.S. 586 (2006) (finding the exclusionary rule to be an inapplicable remedy for the violation of the knock-and-announce rule in the course of executing a valid search warrant as the knock-and-announce rule protects interests relating to the suspect’s opportunity to comply with the law and to avoid destruction of property, while the exclusionary rule is a remedy afforded by the Fourth Amendment for the execution of a warrantless search.)

Illinois v. Gates, 462 U.S. 213, (1983) (the question of whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to involve the rule were violated by police conduct.)

Arnold v. Cleveland, 67 Ohio St.3d 35 (1993) (syllabus) (The Ohio Constitution is a document of independent force.)

State v Brown,  2003-Ohio-3931 (syllabus) (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.)

State v. Furry, 31 Ohio App.2d 107, 286 N.E.2d 301 (6th Dist. 1971) (holding that an unreasonable search and seizure occurred when police officers with a lawful search warrant announced their identity as law enforcement but not their purpose of executing a search warrant.)

State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, paragraph three of syllabus (when the police conduct a search in objectively reasonable, good-faith reliance upon binding appellate precedent, the exclusionary rule does not apply.)

State v. Johnson,  2013-Ohio-4865 (12th Dist.)(When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of the exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively reasonable good-faith belief that their conduct is lawful or when their conduct involves only simply isolated negligence, the deterrence rationale loses much of its force and exclusion cannot pay its way.)

State v. Oliver, 112 Ohio St.3d 44, 2007-Ohio-372, 860 N.E.2d 1002 (remanding the lower court’s decision to uphold the suppression of evidence as a remedy for the violation of the knock-in announce rule in order to reconsider the decision in light of Hudson, supra.)

State v. Vuin, 185 N.E. 2d 506, 89 Ohio Law Abs. 193 (C.P. 1962) (holding suppression of evidence to be a proper remedy when police officers with an allegedly defective search warrant forcibly entered and searched a home without identifying themselves or giving notice of their intent to search.)

Wilson v. Arkansas, 514 U.S. 927 (1995) (interpreting the Fourth Amendment of the U.S. Constitution to incorporate the common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door).

United States v. Leon, 468 U.S. 897 (1984)(Evidence obtained by way of a defective search warrant is admissible at trial, so long as the warrant was obtained in good faith and the officer had reasonable grounds for believing the warrant was properly issued.)

Utah v. Strieff, 136 S.Ct. 2056 (2016)(Evidence seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.)

Defendants’ Argument

The Seventh District erred in reversing the trial court’s decision to grant the motion to suppress by finding the exclusion of evidence to be an inapplicable remedy to a violation of the knock-and-announce rule. In doing so, the Seventh District ignored the history and purpose of the rule and the fact that Ohio’s Constitution affords greater protections than the U.S. Constitution here.

While the current version of the statute was enacted in 1990, the knock-and-announce rule has a rich history that predates the U.S. Constitution. With its roots in common law, the knock-and-announce rule was first justified as protecting every householder against the unlawful invasion of his home. The U.S. Supreme Court’s decision in Hudson was a significant departure from this course, although a violation of the knock-and-announce rule remains part of the inquiry over the reasonableness of a search.

Ohio courts have developed their own jurisprudence with respect to the knock-and-announce rule. Long before the U.S. Supreme Court decision in Wilson v. Arkansas, Ohio courts have applied the exclusionary rule for violations of the knock and announce statute. But since Hudson there have been no appellate decisions ordering suppression for a knock-and-announce violation.

Under Ohio jurisprudence, constitutional implications, both state and federal, have continued to play a part in the analysis of knock-and-announce violations. But federal opinions do not control this court’s analysis of the Ohio Constitution, which the court has recognized as a document of independent force, with greater protections than its federal counterpart. In particular, the Supreme Court of Ohio has held that Article I, Section 14 of the Ohio Constitution provides greater protection than the Fourth Amendment to the U.S. Constitution for warrantless arrests for minor misdemeanors. This present case now presents the issue of the appropriate remedy under the Ohio Constitution for a violation of R.C. 2953.12.  And the reasoning in Hudson does not control the Supreme Court of Ohio in its interpretation of the statutory violation in this case and the appropriate remedy under the Ohio Constitution.

The purpose of the exclusionary rule is to deter police from conducting unconstitutional search and seizures and from violating constitutional guarantees. Excluding evidence that was obtained through the violation of constitutional guarantees is the only way to deter police officers from future violations. Therefore, the only appropriate remedy for a violation of the knock-and-announce rule under Ohio law is the exclusion of evidence. It is in Ohio’s best interest to join the growing number of jurisdictions that have refused to extend Hudson on state constitutional or statutory grounds.

State’s Argument

The Seventh District was correct to reverse the trial court’s decision to grant the motion to suppress, as the exclusionary rule is an inappropriate remedy for the violation of the knock-and-announce rule when the evidence is discovered in the course of executing a valid search warrant. Here, it is conceded that the knock-and-announce rule was violated because the police failed to announce their purpose before forcibly entering. Nonetheless, as expressed by the U.S. Supreme Court in Hudson, the exclusionary rule is not the proper remedy for a violation of the knock-and-announce rule because the interests that were violated are unrelated to the seizure of that evidence.

The purpose of the exclusionary rule is to deter willful and deliberate police misconduct. When evaluating whether the exclusionary rule is an appropriate remedy in a given case, the degree of police misconduct at issue, along with the benefit in deterring such misconduct, are important considerations that must be balanced against the cost that suppressing the evidence has on society.

The purpose behind the knock-and-announce rule is different than the interests protected in warrantless searches. The knock-and-announce rule seeks to preserve one’s dignity as well as protect against bodily harm and the destruction of property. It has never sought to protect someone from keeping the government from seizing evidence described in a warrant. Adequate deterrence from violating the knock-and-announce rule can be found in the threat of a § 1983 action or in the form of internal police discipline. The exclusion of evidence, however, is an ineffective deterrence in this context and is outweighed by the resulting cost borne by society.

Additionally, every Ohio appellate court that has addressed a violation of Ohio’s knock-and-announce rule since Hudson has concluded that the exclusionary rule is not a proper remedy. While Defendants cite several other states that have found suppression to be an appropriate remedy for a violation of the knock-and-announce rule, these cases were all based on independent grounds and bear little support for their claim. Instead, the Seventh District was correct in placing the focus on the presence and validity of the search warrant used to conduct the search. In a warrantless search, the search is presumptively unreasonable. In contrast, in a search executed with a lawful warrant, the failure to knock and announce has no causal connection to the seizure of the evidence. Therefore, the violation should not be remedied by excluding the seized evidence.

Defendants’ Proposed Proposition of Law

The exclusionary rule is the appropriate remedy under Article I, Section 14 of the Ohio Constitution for a violation of R.C. 2935.12.

State’s Proposed Counter Proposition of Law

The Exclusionary Rule is an Inapplicable Remedy under Article I, Section 14 of the Ohio Constitution for Violating Ohio’s Knock-and-Announce Rule Set Forth in R.C. 2935.12 when the Evidence is Discovered while Executing a Lawful Warrant.

 Amicus in Support of Defendants

The Office of the Ohio Public Defender (“OPD”) is the state agency that represents and coordinates criminal-defense efforts across the state of Ohio. OPD urges this Court to accept Defendants’ Proposed Proposition of Law and find that the exclusionary rule is an appropriate remedy for the violation of the knock-and-announce rule.

Like Defendants, OPD emphasizes the independent and greater protections imposed by the Ohio Constitution than its federal counterpart. Ohio is not bound to follow the U.S. Supreme Court on issues relating to rights guaranteed by the corresponding provisions of state law, nor should it. After the U.S. Supreme Court decision in Hudson, it remained an open question whether the Ohio Constitution provides greater protections against forcible entries into homes than the U.S. Constitution, and whether those protections include exclusion of the evidence seized.

This court has previously recognized that Article I, Section 14 of the Ohio Constitution affords greater protection than the Fourth Amendment of the U.S. Constitution in some contexts, and in line with that finding, it should find that a violation of the knock-and-announce rule can only be remedied by suppressing the evidence.

Amici in Support of the State

Amicus, the Ohio Attorney General Michael DeWine (OAG) is Ohio’s chief law officer and is the principal defender of Ohio’s laws against constitutional challenges. OAG concedes that the court should read and interpret the Ohio Constitution in a manner that comports with its own principles and jurisprudence, regardless of whether the interpretation adheres to U.S. Supreme Court decisions. However, an analysis of the text, history, and cases interpreting Article I, Section 14 of Ohio’s Constitution indicates that the exclusionary rule does not apply to the violations of the knock-and-announce rule. The court should continue to reserve the exclusionary rule for narrow circumstances because of the cost suppression has on society. Defendants have failed to show how exclusion would exceed the costs and therefore, exclusion is not an appropriate remedy. OAG also sets forth its own Proposed Proposition of Law:

Article I, Section 14 of the Ohio Constitution does not require courts to exclude evidence in criminal trials that police officers uncovered when executing a valid search warrant after a violation of the knock-and-announce rule.

Amicus, Franklin County Prosecutor Ron O’Brien, (“O’Brien”) also filed an amicus brief in support of the State. O’Brien’s office has a strong interest in cases involving the scope of the exclusionary rule as the office prosecutes thousands of felony cases each year. Additionally, as this case involves the prosecution and punishment of heroin trafficking, O’Brien has a particular interest in its resolution given Ohio’s current heroin epidemic.

O’Brien contends that defendants mistakenly try to constitutionalize the knock-and-announce rule by incorporating its provisions into Article I, Section 14 of the Ohio Constitution. However, these are two separate sources of law with different origins. R.C. 2935.12 is a statute, not a constitutional amendment.

Further, as a remedy, suppression during the execution of a valid search warrant is disproportionate to a violation of the knock-and-announce rule, and too attenuated from it. Suppression does not serve the purpose of the rule, which is simply to regulate the manner of entry and not to prevent entry altogether or preclude the discovery of evidence inside the premises. There is no dispute that suppression as a remedy in this case would fail under Hudson v. Michigan. Hudson is a  thoughtful and well-reasoned, and should be followed on the state level.

O’Brien’s Response to Defendants’ Proposed Proposition of Law

A knock-and-announce violation will not lead to the suppression of evidence discovered during the ensuing execution of a valid search warrant, as there is no causal connection between the violation and the discovery of the evidence.

Student Contributor: Danielle List

This entry was posted in Constitutional Law, Criminal Law and Procedure, Evidence, Ohio Supreme Court Watch, Oral Argument Preview, Student Contributors and tagged , . Bookmark the permalink.