What’s On Their Minds: Is the Exclusionary Rule a Proper Remedy for the Violation of Ohio’s Knock-and-Announce Rule? State of Ohio v. Sherri Bembry and Harsimran Singh.

“Going forward, how do we ensure that we don’t have a successive violation of the knock and announce rule if in fact we say, well, yeah, there was a violation, but it doesn’t really make any difference. There will never be any compliance, will there, if we don’t have a sanction for those who would violate that principle?”

Justice O’Donnell, to the prosecutor

On March 1, 2017, the Supreme Court of Ohio heard 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 statute 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, 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 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, “Appellants”) 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, 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 v. Michigan, 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.

Read the oral argument preview of the case here.

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. Jones,  88 Ohio St.3d 430 (2000)(“Jones I”)( an arrest for a minor misdemeanor in violation of R.C. 2935.26 constitutes an unreasonable seizure  under Article I, Section 14 of the Ohio  Constitution, thereby requiring suppression of evidence seized as a consequence of the violation of that statute.)

State v Brown,  2003-Ohio-3931 (“Brown I”) (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. 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.” Relies on federal constitution for its holding.)

State v. Brown,  2015-Ohio-2438. (“Brown II”) (Article I, Section 14 of the Ohio Constitution affords greater protection than the Fourth Amendment against searches and seizures conducted by members of law enforcement who lack authority to make an arrest. A traffic stop for a minor misdemeanor outside the officer’s statutory jurisdiction or authority violates Article I, Section 14 of the Ohio Constitution. Evidence seized properly suppressed.)

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. 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.)

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.)

State v. Lindway, 131 Ohio St. 166 (1936) (holding that under  Article I, Section 14 of the Ohio Constitution, contraband obtained by an officer pursuant to an unlawful search subjects the officer to liability for trespass, but does not make the evidence inadmissible when the evidence is otherwise supported by competent and pertinent to the main issue against the accused).

At Oral Argument

Arguing Counsel

Louis M. DeFabio, Youngstown, for Appellants Sherry Bembry and Harsimran Singh

Ralph M. Rivera, Assistant County Prosecutor, Mahoning County, for Appellee State of Ohio

Hannah C. Wilson, Deputy Solicitor, for Amicus Ohio Attorney General in support of the State

Appellants’ Argument

During an unreasonably executed search, in which the Boardman police knocked, but failed to announce their purpose, the police seized incriminating evidence. The police must state their purpose, and that is not a gigantic burden on law enforcement. The rule protects both the police and the people inside the residence.

The state has never suggested this was not a constitutional violation. The only issue is, what is the remedy? Appellants concede that under Hudson v. Michigan, the remedy would not be suppression. But the proper remedy under Article I Section 14 of the Ohio Constitution for this violation of Ohio’s knock and announce rule is exclusion of the evidence seized. Precedent for this remedy is found in State v. Brown,  2015-Ohio-2438. (“Brown II”) and in Jones. Appellants are asking the court, as it did in those cases, not to walk in lockstep with the U.S. Supreme Court in Hudson on this issue.

State’s Argument

The prosecutor shared his time with amicus, the Attorney General’s Office.

Prosecutor’s Argument

The State asks the court to adopt the rationale and the holding from the U.S. Supreme Court decision in Hudson v. Michigan, and hold that the exclusionary rule is inapplicable to a violation of Ohio’s knock and announce rule. This court has consistently applied the exclusionary rule in harmony with the U.S. Supreme Court, and this case presents no compelling reasons to depart from Hudson’s rationale and to apply the Ohio Constitution any more broadly than it has in the past.

The state conceded early on in this case that the knock and announce statute was violated. But the issue is the proper remedy for that violation. Exclusion is not the proper remedy. Appropriate remedies could be both civil rights lawsuits and police discipline.  The U.S. Supreme Court has suggested both.  Having an officer’s job on the line serves as a much higher deterrent than simply suppressing evidence in one given case. The value of deterrence is at its highest where the conduct demonstrates the most egregious and flagrant disregard for  a person’s constitutional rights, but deterrence is at its lowest when an officer relies in complete good faith on a warrant. One minor instance of police negligence—in this case the failure to say “search warrant” before the officers hit the door– does not justify the exclusion of evidence. This was not a systemic failure, nor was there evidence that the Boardman Police Department had a practice of ignoring the knock-and-announce statute. Suppression is simply too great a remedy for the minor transgression that occurred in this case.

Attorney General’s Argument

The U.S. Constitution clearly prohibits exclusion as a remedy in this circumstance. This court has said it should depart from U.S. Supreme Court decisional analysis only when compelling circumstances exist to justify the departure. Those compelling circumstances must be rooted in the text and history of the Ohio Constitution. Here, however, text and history clearly support adhering to the federal rule in Hudson. The text of Article I section 14 says nothing about a remedy.  When the provision was adopted in 1851, exclusion of evidence was not the remedy for a violation of a rule against unreasonable searches and seizures, either in Ohio or anywhere in the English speaking world. In 1936, in State v. Lindway, the court held there is no exclusionary rule under the Ohio Constitution. The court should be wary of extending a judicially created remedy to a new circumstance that was not covered under the Fourth Amendment.

Both the Brown cases and the Jones cases are distinguishable. The Brown cases are distinguishable because they are focused entirely on the reasonableness inquiry, whereas here, the state conceded that the search was unreasonable, so the focus was entirely on the remedy. While it is true that suppression was the remedy in both Brown cases, the court found so merely in passing. These sort of “drive-by” rulings should not be given precedential weight while Lindsay, which rejects exclusion under the Ohio Constitution, has never been overruled.

What Was on Their Minds

Is there a Justiciable Controversy?

Did the Seventh District address the Ohio Constitution at all, asked Justice French?

The Seventh District based its decision on the Hudson case from the U.S. Supreme Court, commented Justice O’Donnell. So how do we get over to an issue involving the Ohio Constitution if the Seventh District  didn’t rule on it? What is the appeal here? Just seeking a declaration as to the exclusionary rule under the Ohio Constitution?

The Nature of the Police Violation

Is it clear that the constitutional provision was violated, asked Justice DeWine? Why is a statutory violation necessarily a violation of the constitutional provision? He asked both counsel this, and the state conceded that the statutory violation was a constitutional violation here, although I’m not convinced Justice DeWine was persuaded. He later asked if the only problem was that the police didn’t state their purpose.

Should the police have said, open up, I have a warrant, asked Chief Justice O’Connor? What was the time between announcing “open up, the police,” and the battering ram? Was there any evidence as to how many of these knock and announce incidents happened in Boardman? How experienced were these officers?

Is there any evidence that there was no systemic police misconduct here, asked Justice French? Can we reach a conclusion that this was not systemic? It’s just the absence of evidence that this was systemic? (the prosecutor conceded those questions weren’t asked in this record.)

Is it the state’s position that the violation of a statute and of the constitution is a minor violation, asked Justice Fischer?

Appropriate Remedy for Violation of the Rule

Is there another remedy other than exclusion that could be applied to direct itself to deterrence, asked Justice O’Donnell? What would the sanctions be for violation of the rule? In any civil lawsuit, wouldn’t there be an immunity issue? How is this handled in other jurisdictions? Are there states that do apply exclusion?

The Ohio Constitutional Protections Here

When we look at the language of the two (state and federal) provisions they are nearly identical, commented Justice French. Why would the court ever conclude that the Ohio Constitution was intended to apply more broadly? Tell me why there is a difference in the language.

Is the essence of the appellants’ argument that Ohio’s language is broader than the federal, which is why there should be a different outcome than Hudson, based on the Ohio Constitution, asked Justice O’Donnell?

How it Looks from the Bleachers

To Professor Emerita Bettman

I’m going to predict that while the justices certainly aren’t going to condone the police behavior, and certainly aren’t going to call this a “minor” violation, it is not going to depart from U.S. v. Hudson and find greater protection under Article I Section 14 in this instance, and will refuse to allow suppression here.  This is complicated by the fact that although the parties argued the state constitutional issue below, the Seventh District never made that issue part of its ruling. Also, the high court bench seemed surprisingly diffident during the arguments, perhaps because of this.

As I have written often, I am a big fan of the new judicial federalism, but defense counsel’s insistence that Ohio has found greater protection under Article I Section 14 than under the Fourth Amendment is really an overstatement. The court has found, in Brown I and II and Jones I greater protection against warrantless arrests for minor misdemeanor offenses than exists under the Fourth Amendment, but  has made no blanket, general pronouncement of greater protection. And the arrests in this case were for felonies, not minor misdemeanors. In fact, on several  occasions (e.g. State v. Robinette, 1997-Ohio-343, (Robinette III)) the court explicitly stated that the virtually identical Constitutional provisions should be harmonized wherever possible. I think the Deputy Solicitor would have been more effective if she had made these big picture points instead of trying to get into the weeds with Brown I and II and Jones in the two or three minutes she had to argue. I’ve often said I don’t find split arguments effective.

Justice French, who has consistently criticized the court for finding greater protections under the Ohio Constitution without any historical or textual analysis (see, e.g. her dissents in State v. Mole, Slip Opinion No. 2016-Ohio-5124 and State v. Bode, 2015-Ohio-1519) isn’t likely to find that kind of analysis in this case either, and will likely find for the state. She would probably like to use this case to cut back the court’s under-analyzed new judicial federalism pronouncements.

Justice O’Donnell, author of Brown II, seemed the most concerned about the lack of any effective remedy if exclusion were not allowed here.  That has always bothered me as well in these cases where the prosecution argues against exclusion. Justice O’Donnell did not seem persuaded by the State’s argument about civil lawsuits and police discipline, and I share his skepticism over the effectiveness of civil rights lawsuits against the police. But O’Donnell was also very uncomfortable about the fact that the court of appeals decision did not even address the state constitutional question, so he could vote to dismiss the case as improvidently accepted.

Also, as the prosecutor conceded, there is no evidence in this record one way or the other about whether this was an isolated incident with the Boardman police, or an example of systemic violence.

In the end, though, I think the court will go with Hudson, although I hope it doesn’t.

To Student Contributor Danielle List

Finding the exclusionary rule to be a remedy for a knock-and-announce violation would be a pretty big departure from U.S. Supreme Court precedent, which seems unlikely for this bench, so on that basis I’m going to call this one for the State.

With that being said, however, I think Appellants have an arsenal of arguments in their favor. The primary purpose of the exclusionary rule is to deter police misconduct. Failing to follow the simple requirements of the knock-and-announce rule, whether it be deliberately or negligently, is misconduct—a lack of due care. However, without the exclusionary rule as a remedy, it seems the only way to deter this misconduct is through police discipline and civil suits. Even then, as Justice O’Donnell seemed to suggest, whether civil suits are actually tenable options on account of qualified immunity is questionable. Nonetheless, as Mr. Rivera noted for the State in this case, these potential remedies were not only tenable, but also sufficient for the U.S. Supreme Court to find the lack of need for the exclusionary rule.

Since most of the strongest policies and rationales supporting the exclusionary rule as a remedy in this case were rejected in Hudson, Appellants’ only chance is to look to the Ohio Constitution and Ohio case law to justify the departure. The most glaring problem with looking to the Ohio Constitution, as pointed out by Justice French, is that the text of Article I, Section 14 is the same as the 4th Amendment of the U.S. Constitution. Is the general principle that the Ohio counterpart affords broader rights enough? Mr. DeFabio, as counsel for Appellants argued that this court’s decisions in the Brown cases established simply this. It was hard to tell whether the court agreed with this proposition.

The bench wasn’t necessarily quiet, but it did seem to lack its usual vigor. Most of the questions came from Justice O’Donnell, who seemed to be asking questions out of a desire to understand the parties’ positions more than their statements on the law. Justice DeWine seemed to want to kick around the idea that the common law knock-and-announce rule differed from its statutory counterpart, and thus, may not have even been violated in this case. Naturally, this can’t bode well for Appellants, who didn’t even face this challenge from the State. Justice Fischer did pipe up in the course of the State’s argument on the good faith exception, clearly uneasy with the suggestion that failing to follow the knock-and-announce rule, despite being a constitutional and statutory violation, is a minor transgression. Nonetheless, it looks like the State has the upper hand.

 

 

 

 

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