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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

SEARCH AND SEIZURE

I. The Fourth Amendment (501)

A. The right to or expectation of privacy

B. Search defined

C. Seizure defined

D. The reasonableness standard

 

"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."

Article I, Section 14, Ohio Constitution -- Substantively identical to the Fourth Amendment

Mapp v. Ohio (1961), 367 U.S. 643 -- The guarantees of the Fourth Amendment are applicable in state court proceedings through the Due Process Clause of the Fourteenth Amendment.

A. The right to or expectation of privacy

Also see The Exclusionary Rule/Standing; Warrantless Searches/Plain view.

State v. Higgins, 183 Ohio App. 3d 465, 2009-Ohio-3979 – Defendant charged with conveying drugs into a detention facility won a motion to suppress in the trial court. Reversed. Opinion discusses signage, provisions in the Ohio Administrative Code, the state‘s need to keep drugs out of prisons, the lack of a reasonable expectation of privacy under the circumstances, the benign nature of the confrontation by the investigating officer, and cases from other jurisdictions.

State v. Pancake, Montgomery App. No. 19543, 2003-Ohio-1567 -- Defendant was lawfully arrested for voyeurism upon being found in the act of aiming a camcorder into a woman's window. This is deemed to have advertised the contents of the tape in the recorder, in effect placing it in plain view, outside any expectation of privacy, and eliminating the need for a search warrant as otherwise would have been required. Police could play tape and allow it to be shown to another victim by officers of another department.

Katz v. United States (1967), 389 U.S. 347, 351 -- "...(T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office is not a subject of Fourth Amendment protection...But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

State v. Johnson (1987), 42 Ohio App. 3d 81 -- Defendants engaged in a sex act in an unlocked pit toilet in a highway rest area did not have a justifiable expectation of privacy. Also see State v. Million (1989), 63 Ohio App. 3d 349 (stall in public restroom at a mall); State v. Tanner (1988), 42 Ohio App. 3d 196 (below level of stall partition).

O'Connor v. Ortega (1987), 480 U.S. 709 -- Public employees have an expectation of privacy in their private property at their place of employment. The Fourth Amendment applies to searches and seizures of such property by employers or supervisors.

Hudson v. Palmer (1984), 468 U.S. 517 -- Inmates of a penal institution have no reasonable expectation of privacy in their cells protected by the Fourth Amendment. Case involved a civil rights action for compensation for damaged property. Compare: United States v. Hinkley (C.A.D.C. 1982), 672 F. 2d 115, 126-134 where notes were read during pretrial confinement. United States v. Chamorro (1st Cir. 1982), 687 F. 2d 1.

State v Day (1976), 50 Ohio App. 2d 315 -- Eavesdropping on people in adjacent motel room found not to be a Fourth Amendment violation.

State v. Scott (1986), 27 Ohio Misc. 2d 38 -- Reasonable expectation of privacy invaded when view through gap in closed curtains was achieved by officer climbing onto her partner's shoulders.

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B. Search defined

United States v. Jones (2012), 132 S.Ct. 945 – Attaching a GPS tracking device to a car is a search within the meaning of the Fourth Amendment. Officers had obtained a warrant to attach a device to a car in D.C. within 10 days, but didn’t install it until the 11th day, when the car was in Maryland.

State v. Johnson, 190 Ohio App. 3d 750, 2010-Ohio-5808 – Informants implicated defendant in cocaine trafficking. As a part of the investigation, an officer placed a GPS device on the undercarriage of the defendant’s van. It was attached by magnet and did not tap into the van’s electrical system. Attaching the device to the van was not a search. Nor was using the device to track the defendant’s trip to and from Chicago where his movements were put under observation by cooperating individuals. Case is pending before the Supreme Court as No. 2011-0033. Compare State v. White, Fairfield App. No. 2010-CA-60, 2011-Ohio-4526 where the court finds citizens do have an expectation of privacy in the undercarriage of their cars.

Kyllo v. United States (2001), 121 S.Ct. 2038 -- The use of a thermal imaging device aimed at a private home from a public street to detect relative amounts of heat within the home is a search within the meaning of the Fourth Amendment. To permit the use of technology to obtain information which otherwise could not be obtained without actual intrusion into a constitutionally protected area would erode the privacy guaranteed by the Fourth Amendment.

Illinois v. Andreas (1983), 463 U.S. 765 -- Contraband was found during customs search. Following a controlled delivery to the addressee, the package was seized and reopened before a warrant could be obtained. Neither the customs inspection nor the second opening of the package are searches within the meaning of the Fourth Amendment.

Maryland v. Macon (1985), 472 U.S. 463 -- Plainclothes detective's entry into an adult bookstore, which invited the public in to do business, and the purchase of two magazines which were the basis for an obscenity prosecution, was neither a search nor a seizure. Also see State v. Freeman (1986), 32 Ohio App. 3d 42.

State ex rel. Rear Door Bookstore v. Tenth District Court of Appeals (1992), 63 Ohio St. 3d 354, 364 -- A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.

United States v. Place (1983), 462 U.S. 696, 707 -- "(E)xposure of...luggage, which was located in a public place, to a trained canine(,) did not constitute a 'search' within the meaning of the Fourth Amendment."

State v. Palicki (1994), 97 Ohio App. 3d 175 -- Sniffing by drug dog around the exterior of car was not a search. Court suggests sniff of interior was also permitted, but also finds there was probable cause for a search of the interior, and (erroneously) states that the search would have been warranted as incident to arrest. Also see United States v. Place (1983), 462 U.S. 696, 707; State v. Riley (1993), 88 Ohio App. 3d 468. (sniffing of trunk of impounded car by a dope dog was not a search); In re Dengg (1999), 132 Ohio App. 3d 360 (car parked at school); State v. Waldroup (1995), 100 Ohio App. 3d 508; State v. Carlson (1995), 102 Ohio App. 3d 585. Compare State v. Elkins (1976), 47 Ohio App. 2d 307.

State v. Smith (1997), 117 Ohio App. 3d 656, 661 -- Monitoring and recording telephone conversations is a search within the meaning of the Fourth Amendment. Monitoring inmate phone calls is not a Fourth Amendment violation when the prisoner has notice of a telephone monitoring practice and elects to place a call. Nor does such practice violate federal law with respect to unauthorized and intentional interception of wire communications.

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C. Seizure defined

State v. Harding, 180 Ohio App. 3d 497, 2009-Ohio-59 – Subject was stopped as a possible trespasser in a public housing development. Frisking him for weapons converted a consensual encounter to a seizure. Absent articulable suspicion justifying investigative detention this was improper. But the exclusionary rule does not apply because the defendant had outstanding warrants, even though this was unknown to the officers at the time.

Kaup v. Texas (2003), 123 S.Ct. 1843 -- Teenager was taken from his bedroom to police headquarters in the middle of the night, in hand cuffs and wearing only his underwear. Absent probable cause, this was an illegal arrest. Notwithstanding Miranda warnings, subsequent confession was the fruit of the poisonous tree. Opinion summarizes prior case law regarding when a seizure occurs for purposes of the Fourth Amendment.

United States v. Drayton (2002), 122 S.Ct. 2105 -- Officers entered bus, approached passengers moving from back to front, and without individualized suspicion asked some of them for permission to search their luggage or person. Held not to be a seizure, despite confining conditions on the bus and the stationing of an officer at the front of the bus. It was not necessary to inform subjects that they did not have to consent. For other cases on consensual encounters see Florida v. Bostick (1991), 501 U.S. 429; Florida v. Royer (1983), 460 U.S. 491; California v. Hodari D. (1991), 499 U.S. 621.

State v. Wallace (2001), 145 Ohio App. 3d 116 -- Cruiser blocked a car in a crowded parking lot shared by a bar and an insurance office. Officer insisted on speaking with occupants who did not want to talk to him. Car had been placed in gear so as to back up. Blocking was a seizure. There was no reasonable basis for the officer to believe illegal conduct was underway, and the approach was not a consensual encounter. Suppression affirmed.

State v. Washington (2001), 144 Ohio App. 3d 482, 490 -- The actions of a DEA agent who stopped the defendant at an Amtrack station as a suspected drug courier contributed to a reasonable belief that he was not free to go. Thus there was a seizure. Nervousness was only slightly probative of wrongdoing. Travelling under an assumed name raised only a generalized suspicion, and might have been indicative of other behavior, such as marital infidelity. Thus investigative detention was unjustified, and consent to search luggage was not voluntary. Compare State v. Alexander, 151 Ohio App. 3d 590, 2003-Ohio-760.

State v. Yeatts, Clark App. No. 02CA45, 2002-Ohio-7285 -- While activating a cruiser's beacon may generally constitute a show of force amounting to a seizure, it does not when the occupant of the vehicle is unconscious.

Brendlin v. California (2007), 127 S.Ct. 2400 -- Both the driver and a passenger have standing to contest the legality of a vehicle stop because both have been seized for purposes of the Fourth Amendment. Traffic stops involve an officer's unquestioned command of the situation. A passenger by remaining inside the vehicle demonstrates submission. Accord: State v. Carter (1994), 69 Ohio St. 3d 57, 63.

State v. Taylor (1995), 106 Ohio App. 3d 741, 747-749 -- There are three types of police-citizen encounters: (1) Consensual encounters where the citizen is free to not to answer questions and walk away. These are not seizures. The request to examine identification does not make an encounter nonconsensual. (2) Investigative detentions where a reasonable person would not feel free to leave or is compelled to respond to questions. These require reasonable suspicion and must be of limited duration. This is a seizure. (3) Seizures equivalent to arrest, which require probable cause.

Dunaway v. New York (1979), 442 U.S. 200 -- When a person's freedom of movement is curtailed by the police through force or a show of authority, he has been seized for purposes of the Fourth Amendment. Detention and transportation to a police station for what amounted to custodial interrogation required probable cause for arrest.

Tennessee v. Garner (1975), 471 U.S. 1 -- Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment requirement of reasonableness.

Delaware v. Prouse (1979), 440 U.S. 648, 653 -- However brief, the stop of a vehicle and the detention of its occupants is a "seizure" within the meaning of the Fourth and Fourteenth Amendments.

United States v. Place (1983), 462 U.S. 696, 707 -- Luggage was seized for purposes of the Fourth Amendment when, following owner's refusal of consent to search, agent announce he planned to take the luggage to a federal judge to secure the issuance of a warrant.

Hayes v. Florida (1985), 470 U.S. 811 -- Taking a suspect to the police station for purposes of fingerprinting is a seizure.

State v. Johnson (1986), 34 Ohio App. 3d 94 -- Simple request for subject's name, leading to warrants check, not construed as a seizure for Fourth Amendment purposes. Quoting Florida v. Royer (1983), 460 U.S. 491, 497: "...(L)aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence his voluntary answers to such questions." Also see State v. Frost (1991), 77 Ohio App. 3d 644.

Sodal v. Cook County, Illinois (1992), 506 U.S. 56 -- Deputies stood by while 1983 action plaintiff's trailer was unlawfully removed from trailer park. Held to be a seizure within the meaning of the Fourth Amendment. (No search was conducted.)

State v. Johnston (1993), 85 Ohio App. 3d 475 -- While activation of the beacon on a cruiser may generally constitute a seizure, it did not where the defendant parked next to a highway patrol cruiser and the officer activated his beacon before asking the driver "what do you need?" Compare State v. Terry (1998), 130 Ohio App. 3d 253, 258 finding beacon activation not to be a seizure.

State v. Cook (1995), 107 Ohio App. 3d 154 -- Applying United States v. Mendenhall (1980), 446 U.S. 544, defendant was seized when four officers approached and ordered companion, then the defendant, to step out of parked truck.

California v. Hodari D. (1991), 499 U.S. 621 -- Juvenile ran from the police and discarded a rock of crack cocaine before being tackled. Held that he had not been seized for purposes of the Fourth Amendment at the time he threw down the drugs. For there to be a seizure there must either be some application of physical force, even if extremely slight, or a show of authority to which the subject yields; a show of authority, without any application of physical force, to which the subject does not yield is not a seizure. Also see State v. Barnwell (1993), 87 Ohio App. 3d 637; State v. McDaniel (1993), 91 Ohio App. 3d 189; State v. Hill (1998), 127 Ohio App. 3d 265.

Michigan v. Chesternut (1988), 486 U.S. 567 -- Defendant began to run as police car on routine patrol approached. When the car pulled alongside, he began throwing away packets of drugs. Held that under the circumstances he had not been seized for Fourth Amendment purposes before he began discarding the packets. Police had not ordered him to halt, had not used flashers or moved cruiser so as to block him.

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D. The reasonableness standard

State v. Steele, 155 Ohio App. 3d 659, 2003-Ohio-7103 -- Constitutional challenge fails with respect to use of DNA samples taken from the defendant while he was in prison, and placed in the DNA database that led to indictment for an unsolved rape.

Bell v. Wolfish (1979), 441 U.S. 520, 558 -- "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place where it is conducted. E.g. United States v. Ramsey, 431 U.S. 606 (1977); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Terry v. Ohio, 392 U.S. 1 (1968); Katz v. United States, 389 U.S. 347 (1967); Schmerber v. California, 384 U.S. 757 (1966)."

New Jersey v. T.L.O. (1985), 469 U.S. 325, 338 -- "...(T)he Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise 'illegitimate." Also see Hudson v. Palmer (1984), 468 U.S. 517, 526; Rawlings v. Kentucky (1980), 448 U.S. 98.

State v. Sharp (October 2, 1986), Montgomery County App. No. 8703, unreported -- The fact that an investigative stop leads to an arrest does not vindicate the initial stop.

United States v. Place (1983), 462 U.S. 696, 710-711 -- "(A)lthough we decline to adopt any outside time limit for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case." (Luggage held for inspection by drug dog.)

State v. McFarland (1982), 4 Ohio App. 3d 158, 161 -- Regarding ten minute detention to run warrants check for person suspected of drug trafficking: "The exigencies of reasonable investigatory efforts sufficiently justified the limitations on defendant's freedom for a reasonable investigatory purpose that was not unduly prolonged."

State v. Pugh (April 20, 1982), Franklin Co. Case No. 81AP-779 --Investigatory detention for purposes of show up held proper.

State v. Chatton (1984), 11 Ohio St. 3d 59, 463 N.E. 2d 1237 -- Even though the initial detention is justified, detention may not continue once that basis has been eliminated. Here, officer had stopped car which did not display front or rear license plate, but had no justification for continuing detention after saw temporary tag on the rear deck. Compare State v. Allen (1985), 21 Ohio App. 3d 199 where failure to produce operator's license justified further investigation.

Winston v. Lee (1985), 470 U.S. 753 -- Surgical removal of a bullet from a defendant's body, pursuant to a warrant, may be unreasonable under the Fourteenth Amendment even though the bullet might be evidence of a crime. Where the risk to the defendant's safety posed by the surgery and the scope of the operation were sharply disputed and a general anesthetic would probably have been necessary and where there is other evidence of the crime charged, such surgery should not be ordered. Also see Adams v. Indiana (1973), 299 N.E. 2d 834.

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