Search and Seizure - Probable Cause


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Last updated 3/1/2016
State v. Armstead, 2nd Dist. Montgomery No. 26314, 2015-Ohio-5010
Evidence adduced at the suppression hearing established that appellee was illegally detained by police subject to the equivalent of an arrest without probable cause. Appellee's purported acquiescence to a detective's request to travel downtown to speak with another detective regarding an unrelated matter for which he had not been charged amounted to nothing more than a "mere submission to a claim of lawful authority." The arresting officers lacked probable cause to detain appellee.
State v. Etherington, 172 Ohio App. 3d 756, 2007-Ohio-4097 -- Officer‘s observations of subject thought to be engaged in illegal drug activity provided reasonable suspicion justifying investigative detention. When the defendant fled upon approach by officers this was elevated to probable cause for his arrest. Following the suspect into his home was proper hot pursuit.
State v. Peterson, 173 Ohio App. 3d 575, 2007-Ohio-5667 – Following up on the report of suspects drug activity officers conducted a "knock and advise," which included officers being deployed to the sides of the house as another went to the front door. Officer in the yard by the side of the house saw drug activity in the basement, and rushed into the house based on this observation. Warrant was obtained later on. Motion to suppress should have been granted as the officer was in a portion of the curtilage into which the public was not invited. Opinion provides a good discussion of open fields, observation made from outside the curtilage, and peeping.
State v. Featherstone, 150 Ohio App. 3d 24, 2002-Ohio-6028 -- While pretextual arrests are permitted, they are unlawful when not supported by probable cause. A stakeout team arrested defendant for littering 30 seconds after a garter flew off his head and landed on the ground. This did not provide adequate probable cause.
State v. Lynn (2000), 137 Ohio App. 3d 402, 405 -- "(P)robable cause becomes a sequential consideration. Chronological events can enhance or diminish the reasonable perception leading to probable cause...Taking events in a chronological sequence, an investigation may become the possibility of criminal conduct, which becomes suspicion of criminal conduct (as a purely subjective gut feeling), which becomes articulable suspicion (capable of being factually articulated), which becomes probable cause to believe a crime has been committed."
State v. Moore (2000), 90 Ohio St. 3d 47 -- Syllabus: "The smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search." Warrantless search of car valid under the automobile exception. Majority finds warrantless search of the defendant's person was justified by exigent circumstances. 
State v. Woljevach, 160 Ohio App. 3d 757, 2005-Ohio-2085 -- (1) Though the court is skeptical that the "plain smell" rule of State v. Moore (2000), 90 Ohio St. 3d 47 may properly be extended to detection of the odor of raw marijuana by a supposedly qualified "drug sniffing deputy", the defendant did not make a sufficient showing in the trial court to rebut the deputy's claimed ability, and to overcome the issuing magistrate's reliance on that claim. (2) Acting on a stale tip, deputies walked past no entry and no trespassing signs on the front of a barn to the rear where it was claimed the odor of marijuana was detected. Not having confined themselves to portions of the curtilage where visitors were impliedly welcome, they had no lawful right to be present. Therefore the deputy's odor detection could not properly for the basis for a warrant being issued.
State v. Buzzard, 163 Ohio App. 3d 591, 2005-Ohio-5270 -- Officer followed tire tracks from site of break-in to defendant's garage. Peering through a crack in the door he saw what appeared to be the stolen property and had this confirmed by the owner, before obtaining a warrant. The search is not saved by good faith reliance on the warrant. While the officer was lawfully on defendant's property in following the tire tracks, the use of a lock on the closed doors and the lack of windows establish an expectation of privacy in the garage, notwithstanding the quarter inch gap. Reversed: State v. Buzzard, 112 Ohio St. 3d 451, 2007-Ohio-373. Assuming the officer was on the property lawfully and did not manipulate the door to widen the crack, for purposes of the plain view doctrine the focus must be on the objective reasonableness of the claim an object was in plain view and not a subjective expectation of privacy.
Texas v. Brown (1983), 460 U.S. 730, 742 -- "...(Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief,' Carroll v. United States, 267 U.S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A 'practical, nontechnical' probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 (1949)."
Ash v. Marlow (1851), 20 Ohio 119 -- Paragraph one of the syllabus: "'A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged,' is a good definition of the term 'probable cause.'" Approved and adopted for application in a malicious prosecution action in Huber v. O'Neill (1981), 66 Ohio St. 2d 28.
Beck v. Ohio (1964), 379 U.S. 89, 91 -- The validity of a search incident to an arrest rests upon whether the arrest was lawfully based upon probable cause: "- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing the petitioner had committed or was committing an offense."
State v. Chandler (1989), 54 Ohio App. 3d 92 -- Headnote 2: "A person's mere presence in an area of high crime activity does not suspend the protections of the Fourth and Fourteenth Amendments to the United States Constitution."
State v. Elkins (1976), 47 Ohio App. 2d 307 -- Confirmation of suspicion that package contained marijuana by trained dog established probable cause for search warrant. For additional cases on canines see United States v. Place (1983), 462 U.S. 696; United States v. Beale (9th Cir. 1982), 674 F. 2d 1327; United States v. MacDonald (10th Cir. 1982), 670 F. 2d 910; United States v. Martell (9th Cir. 1981), 654 F. 2d 1356; United States v. Waltzer (2nd Cir. 1982), 682 F. 2d 370; United States v. Robinson (4th Cir. 1983), 707 F. 2d 811. For a humorously written case on sniffing by a DEA agent see United States v. Sentovich (11th Cir. 1982), 677 F. 2d 834; State v. Elkins (1976), 47 Ohio App. 2d 307 add} Also see State v. Riley (1993), 88 Ohio App. 3d 468.
State v. Younts (1993), 92 Ohio App. 3d 708 -- (1) The smell of raw marijuana alone is not sufficient to establish probable cause to search a vehicle. [Subsequently nullified by the syllabus to State v. Moore (2000), 90 Ohio St. 3d 47.] (2) The existence of probable cause must be judged by what was in the officer's mind at the time the decision to search the vehicle was made. Additional justification, here the discovery of marijuana on the defendant's person when subsequently frisked, could not be considered.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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