On October 10, 2017, the Supreme Court of Ohio handed down a merit decision in State v. Bembry, Slip Opinion No. 2017-Ohio-8114. In an opinion written by Justice O’Neill, the court held that the exclusion of evidence was not the proper remedy for the admitted violation in this case of Ohio’s knock-and-announce statute. Chief Justice O’Connor and Justices Kennedy and DeWine joined the majority opinion. Justices O’Donnell and Fischer concurred in judgment only. Justice French dissented, and would dismiss the case as improvidently granted. The case was argued March 1, 2017.
Police in Boardman Ohio had a confidential informant purchase heroin in two “controlled buys” from appellant Harsimran Singh near Singh’s apartment. After that, the police obtained a search warrant for the apartment where Singh lived with his girlfriend appellant Sherri Bembry. On the morning of November 2, 2012, seven officers executed the warrant. The officers knocked several times, and in response to someone inside asking who it was, replied, “police, open the door.” The police waited approximately 15 seconds for a response before making a forcible entry. It is undisputed that the police never stated they were there to execute a search warrant.
Once inside, the officers found drugs, drug paraphernalia and a stolen gun. Singh was indicted on one count of trafficking in heroin in the vicinity of a juvenile (after the search of Singh’s apartment, the police learned that three children under the age of seven lived in a neighboring apartment), one count of possession of a controlled substance, and one count of receiving a stolen firearm. Bembry was indicted for permitting drug abuse.
Bembry and Singh filed a joint motion to suppress, arguing that the search was unreasonable under the Fourth Amendment and Article I Section 14 of the Ohio Constitution. The trial court found that the police had violated R.C. 2935.12, Ohio’s knock-and-announce statute without any exigent circumstances justifying the violation, and granted the motion to suppress. The state appealed.
In a unanimous opinion, the Seventh District reversed the trial court, relying on the recent U.S. Supreme Court 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.
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.
Mapp v. Ohio, 367 U.S. 643 (1961) (The Fourth Amendment’s exclusionary remedy must be enforceable against the states in the face of arbitrary intrusions by the police.)
Arnold v. Cleveland, 67 Ohio St.3d 35 (1993) (syllabus) (The Ohio Constitution is a document of independent force.)
State v. Robinette, 1997-Ohio-343, (Robinette III)( the interpretation of Article I, Section 14 of the Ohio Constitution and the Fourth Amendment should be harmonized unless there are persuasive reasons to find otherwise.)
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).
Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998) (The exclusionary rule carries a costly toll for truth-seeking and law enforcement objectives. Therefore, there is a high obstacle which must be overcome for those urging its application. The exclusionary rule will only be applied where its deterrence benefits outweigh its substantial social costs.)
State v. Jones, 88 Ohio St.3d 430, 727 N.E.2d 886 (2000) (Jones I) (Unless one of the statutory exceptions applies, a full custodial arrest for a minor misdemeanor offense violates Article I Section 14 of the Ohio Constitution, and evidence obtained incident to such an arrest is subject to suppression in accordance with the exclusionary rule. )
State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931 (Brown I) (Although the arrest for a minor misdemeanor does not violate the Fourth Amendment, Article I, Section 14 of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors. Evidence seized from arrest for misdemeanor jaywalking offense properly suppressed.)
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.)
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. Brown, 2015-Ohio-2438.(Brown II)( evidence obtained from traffic stop for a minor misdemeanor outside the officer’s statutory jurisdiction violates Article I, Section 14 of the Ohio Constitution and was properly suppressed.)
Is the State Constitutional Law Challenge Properly Before the Court?
Short answer: yes.
Bembry and Singh are arguing to the Supreme Court of Ohio that the exclusionary rule is the appropriate remedy under Article I, Section 14 of the Ohio Constitution for the knock-and-announce violation in this case. (remember that the state conceded the statute was violated.) But the court of appeals did not address the Ohio constitutional argument at all, basing its decision wholly on the U.S. Supreme Court decision in Hudson v. Michigan. So the Ohio high court first had to decide if the state constitutional challenge was properly before it. The court decided that it was, because even though it was not even mentioned in the appellate decision, the issue was raised by the appellants at the trial court level and fully briefed at the appellate level.
The Exclusionary Rule
Justice O’Neill treats us to a short history of the exclusionary rule. You can read that on your own at ¶¶14-18 of the decision. Short version take-away—since Mapp v. Ohio, the Fourth Amendment exclusionary remedy is enforceable against the states through the Due Process Clause of the Fourteenth Amendment. BUT just because the exclusionary rule is available as a remedy doesn’t mean it IS the remedy in a given case. That is an entirely separate question. To decide whether that remedy is appropriate in a given case, the court must decide whether exclusion “will actually remedy the wrong and deter future wrongdoing,” as O’Neill put it.
The Knock-and-Announce Rule
Once again, Justice O’Neill gives us a history lesson, reminding us that the knock-and-announce principle is rooted in ancient common law and is much older than the exclusionary rule. It is part of the reasonableness inquiry of the Fourth Amendment. In Ohio it is codified at R.C.2935.12(A). When the police are executing a warrant, they must announce that purpose before entering, and may only enter after admission is refused.
But in 2006, in Hudson v. Michigan, the U.S. Supreme Court held that suppression is an inappropriate remedy for violation of the knock-and-announce rule when police are in the process of executing a valid search warrant. Why? The U.S. Supreme Court gave two reasons. Knock and announce principles protect different interests from warrant requirements and the suppression remedy. The former protect safety, the latter the privacy of the home and its contents. I’m not sure I see that line so clearly, Second, according to the U.S. Supreme Court, suppression will not effectively deter knock-and-announce violations, and the risk of suppression would dissuade police from risking a knock-and-announce violation in exigent circumstances, which is a recognized exception to that rule. I’m still scratching my head after reading this set of explanations.
New Judicial Federalism
As the blog has written about many times, states are free to find greater protections for individual liberties under their own Constitutions than exist under the federal floor. Ohio explicitly joined this movement in 1993 in Arnold v. Cleveland, in declaring the Ohio Constitution to be a document of independent force, and has departed from federal interpretations on a number of occasions, when there are “persuasive reasons” to do so.
Since Hudson, the Supreme Court of Ohio has not decided whether Article I, Section 14 of the Ohio Constitution provides greater protection from knock-and-announce violations than the Fourth Amendment as interpreted in Hudson. In this case, it declines to find greater protection.
Justice O’Neill begins the analysis with the reminder that the default position is that Article I, Section 14 of the Ohio Constitution is to be harmonized with the Fourth Amendment, unless there are persuasive reasons to find otherwise. Here, he finds none, rejecting each of Bembry’s and Singh’s three arguments for greater protection as unpersuasive.
Argument Number One: Many trial and appellate courts have decided, before the U.S. Supreme Court decision in Wilson, that suppression of evidence is an appropriate remedy for violating the knock-and-announce principle. Response: the Supreme Court of Ohio is never bound by decisions of inferior courts. Plus, all of the cases cited by Bembry and Singh rely on the Fourth Amendment, and none even address the question of whether Article I, Section 14 of the Ohio Constitution provides greater protection in this context.
Argument Number Two: The greater protection findings from the Supreme Court of Ohio’s recent jurisprudence involving warrantless stops in minor misdemeanor situations should be applied here. In Jones I, Brown I and Brown II suppression was the appropriate remedy and should be here, as well. Response: this case is very different from those cases. Here, the police executed a valid warrant in an unlawful manner. Thus the privacy interest abated within the scope of that warrant.
Argument Number Three: The decisions of other state courts on the question at hand should be taken as persuasive authority. Response: They just aren’t persuasive. The plain language of R.C. 2935.12 proves no remedy for its violation and the court won’t ignore that just because other states would find differently under their own laws. O’Neill does characterize the law in this area as “undeveloped.”
Bottom Line Here
“We find the United States Supreme Court’s reasoning in Hudson to be far more persuasive than the arguments made by Bembry and Singh…It makes fundamental sense that we would not restore privacy to the contents of a home to remedy the violation of a rule that applies only after the interest in privacy in the home has been overridden. To do so would be to make an end run around the authority of the magistrate that issued the warrant. There is a basic conceptual disconnect between the interests protected by the knock-and-announce principle and those vindicated by the suppression remedy.”
So, in this area of Fourth Amendment jurisprudence, Article I, Section 14 and the Fourth Amendment are in harmony, which means no suppression of evidence as a remedy for a violation of Ohio’s knock-and-announce rule once a search warrant has been properly issued. What is the appropriate remedy, you might ask? That $ 64,000 question remains unanswered here.
Here’s what I wrote after argument:
“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.
“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 am going to repeat a key question from Justice O’Donnell, who seemed the most concerned about the lack of a remedy here:
“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?” That question remains a very troubling one, to which the court in the case offered no answer. The state’s suggestions of civil lawsuits and police discipline don’t seem very persuasive.