Search and Seizure - The Exclusionary Rule


Franklin County Criminal Law Casebook

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

Last updated 5/18/2015

Origins, Justification and General Applicability

Davis v. United States (2011), 131 S.Ct.2419 -- When the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. At the time the search of a stopped vehicle was conducted it was valid under Belton v. New York, however, it was not under Arizona v. Grant which announced a new law, which the defendant on appeal argued was controlling. The opinion reads as a pathway of precedent leading towards further restriction of the exclusionary rule.
Herring v. United States (2009), 129 S. Ct. 695 – The extent to which the exclusionary rule is justified varies with the culpability of law enforcement conduct. At p. 702: "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Defendant was arrested and searched incident to that arrest based on a warrant from another county. That warrant had been recalled but the recall didn‘t make it into the computer. Followed: State v. Geiter, 190 Ohio App. 3d 541, 2010-Ohio-6017.
State v. Baughman, 192 Ohio App. 3d 45, 2011-Ohio-162 – Estranged husband called in a tip to 911 under a false name than his wife was driving erratically. Despite rampant falsehoods, the court treats this as an identified citizen tip and upholds the search. If it were not the court would not apply the exclusionary rule. Applying Herring v. United States (2009), 129 S.Ct. 695, the misconduct was by a citizen, thus there is no illegal police conduct to be deterred.
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. Also see State v. Walker-Stokes, 180 Ohio App. 3d 36, 2008-Ohio-6552.
State v. Andrews, 177 Ohio App. 3d 593, 2008-Ohio-3993 -- ¶38: "Pundits bemoan reversals of convictions based upon a 'technicality.' But as Justice Clark so eloquently explained in the landmark decision in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081: "There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine, "[t]he criminal is to go free because the constable has blundered." People v. Defore (1926), 242 N.Y. [13], 150 N.E. 585, 587. In some cases this will undoubtedly be the result. But as we said in Elkins [(1960), 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed. 2d 1669] "there is another consideration - the imperative of judicial integrity." Id. at 222, 80 S.Ct. 1437, 4 L.Ed. 2d 1669. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States (1928), 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944: "Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example, * * * If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."' Id. at 659, 81 S.Ct. 1684."
United States v. Knights (2001), 122 S.Ct. 587 -- The Fourth Amendment does not limit searches pursuant to a condition of probation to those undertaken with a probationary purpose. Deputy who was aware of the condition conducted a warrantless search of the apartment of a person believed linked to acts of vandalism at utility company facilities. The search was supported by reasonable suspicion, which is sufficient for Fourth Amendment purposes. Court does not decide whether consent to the condition by itself would validate such searches.
Samson v. California (2006), 126 S.Ct. 2193 -- The Fourth Amendment does not bar searches of parolees not based on individualized suspicion, conducted pursuant to the parolee's agreement to be subject to search at any time.
Weeks v. United States (1913), 232 U.S. 383 -- Defendant was arrested without a warrant at Kansas City Union Station. At the same time, other officers had gone to his home, without a search warrant, entered and seized papers and other items, some of which were later used as evidence at trial. Defendant's petition for return of seized property was overruled. Supreme Court held property should have been returned, to effectuate the guarantee of the Fourth and Fifth Amendments.
Mapp v. Ohio (1961), 367 U.S. 643 -- The exclusionary rule, barring introduction of all evidence seized in violation of the Fourth Amendment, applies in state court proceedings.
United States v. Calandra (1974), 414 U.S. 338, 347 -- "The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim: '[T]he ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.' Linkletter v. Walker, 381 U.S. 616, 637 (1965). Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures: 'The rule is calculated to prevent, not to repair. Its purpose is to deter - to compel respect for the constitutional guarantee in the only effectively available way - by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206, 217 (1960)."
Arizona v. Evans (1995), 514 U.S. 1 -- Defendant was stopped for a minor traffic offense. Computer showed an outstanding arrest warrant, which in fact had been recalled. Error appears to have been made by the clerk's office. Defendant dropped a hand rolled cigarette when ordered out of his car, leading to discovery of marijuana under a seat. Exclusionary rule held not to apply as in these circumstances would not deter illegal police conduct. Though not directly characterizing this as an extension of the good faith doctrine, court follows the Leon rationale. Compare State v. Gough (1986), 35 Ohio App. 3d 81; Ashland v. Dailey (1999), 105 Ohio Misc. 2d 1.
Pennsylvania Board of Probation and Parole v. Scott (1998), 524 U.S. 357 -- The Fourth Amendment's exclusionary rule does not apply to illegally seized evidence used in state parole revocation proceedings. The exclusionary rule is calculated to deter illegal police conduct, and balancing deterrence benefits against the costs of excluding relevant probative evidence, the majority concludes it should not extend to parole revocation proceedings.
State ex rel. Wright v. Ohio Adult Parole Authority (1996), 75 Ohio St. 3d 82, 88-89 and 92 -- On the benefit side of the balancing test applied in imposition of the exclusionary rule, is whether future unlawful police conduct will be deterred. See additional language in the dissenting opinion on the importance of the government obeying the law scrupulously.
State v. Burkholder (1984), 12 Ohio St. 2d 205 -- Applying the Ohio Constitution, exclusionary rule for illegally seized evidence applies at probation revocation hearing. But see Griffin v. Wisconsin (1987), 483 U.S. 868, finding warrantless search of probationer's home may be "reasonable" within the meaning of the Fourth Amendment if conducted pursuant to a rule of probation found to be a reasonable response to the special needs of the probation system.
State v. Villagomez (1974), 44 Ohio App. 2d 209 -- Headnote 4: "Evidence obtained as the result of a wrongful search by a private individual may be admitted into evidence in a criminal prosecution against the victim of the search, if that search was not in any way instigated or participated in by government agents." Also see State v. Morris (1975), 42 Ohio St. 2d 307; United States v. Coleman (6th Cir. 1980), 628 F. 2d 961. Compare Walter v. United States (1980), 447 U.S. 649 where after receiving material from private party action by FBI agents constituted a further search which required a warrant.

Constitutional Versus Statutory Rights

Virginia v. Moore (2008), 128 S.Ct. 1598 – State statute required issuance of a summons for driving on a suspended license but officer arrested the defendant and found drugs during a search incident to arrest. State court ordered suppression based on the Fourth Amendment. Reversed. The extent of Fourth Amendment protection is not tied to statutes as may have been adopted by the various states.
State v. Jones (2000), 88 Ohio St. 3d 430 -- Unlawful arrest for a minor misdemeanor is both a statutory and constitutional violation. Syllabus: "Absent one or more of the exceptions specified in R.C. 2935.26, a full custodial arrest for a minor misdemeanor offense violates the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution, and evidence obtained incident to such an arrest is subject to suppression in accordance with the exclusionary rule." Also see State v. Brown, 99 Ohio St. 3d 323, 2003-Ohio-3931. Compare Atwater v. City of Lago Vista (2001), 121 S.Ct. 1536; State v. Wilkenson 118 Ohio Misc. 2d 10, 2001-Ohio-4354.
State v. Droste (1998), 83 Ohio St. 3d 36 -- Syllabus: "Absent a violation of a constitutional right, the violation of a statute does not invoke the exclusionary rule."
State v. Geraldo (1981), 68 Ohio St. 2d 120 -- Syllabus: "Neither the federal constitution nor state law requires the suppression of evidence obtained by the warrantless recording of a telephone conversation between a consenting police informant and a non-consenting defendant. (United States v. White, 401 U.S. 745, followed.)" May have been a violation of R.C. 4931.28 but exclusionary rule does not apply.
Cleveland v. Becvar (1989), 63 Ohio App. 3d 163 -- Exclusionary rule not applied where failure to mention the offense property to be seized related to may have amounted to a technical violation of Crim. R. 41, but did not amount to constitutional error. Also see State v. Givens (1983), 14 Ohio App. 3d 2 (incomplete inventory).
State v. Applebury (1987), 34 Ohio App. 3d -- Exclusionary rule not applied where defect in affidavit was variance between name of affiant on first line of affidavit and name of officer who ultimately swore to and signed the affidavit. Error was contrary to Crim. R. 41 but was not of constitutional dimension. Also see State v. Wilmoth (1986), 22 Ohio St. 3d 251; State v. Kuykendall (1977), 51 Ohio App. 2d 215 (oath sworn in presence of judge but acknowledged by the clerk).
State v. Klemm (1987), 41 Ohio App. 3d 382 -- Exclusionary rule not applied where search was executed by officer beyond the territorial limits of his jurisdiction as controlled by statute.


State v. Corbin, 194 Ohio App. 3d 720, 2011-Ohio-3491 --- Defendant had stayed overnight at the victim’s house in the past. When she went missing her daughters let officers walk through the house on two occasions. Defendant did not have an expectation of privacy at that time as he was staying elsewhere. Warrant was obtained based in information gained. What was set forth in the affidavit was sufficient, but even if not, good faith would save he day. Bag of the defendant’s clean clothing found in the victim’s truck was abandoned.
State v. Dennis, 182 Ohio App. 3d 674, 2009-Ohio-2173 – Police responded to the report of a trespasser at an apartment complex. Believing apartment had been abandoned, officer entered and found the defendant in a recliner and a crack pipe in a potato chip bag. (1) Defendant had standing to assert a Fourth Amendment violation. While trespassing for purposes of criminal law does not strictly follow civil law, he retained an expectation of privacy in the premises even though he had received eviction notices. Though he had been gone for a while, he was present when the officers entered and the state failed to prove the eviction process had been completed. (2) Good faith does not save the search. Good faith mainly applies in warrant cases. Court does not reach whether it should be extended here. The officers could not have reasonably believed the apartment was vacant based on the information they had.
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. Peterson, 166 Ohio App. 3d 112, 2006-Ohio-1857 -- Defendant had spent three nights at the apartment of a girlfriend and their child, but also stayed with other girlfriends and used his mother's address for mail. Trial court found he did not have standing in a motion to suppress seized cocaine. Court of appeals held he did. ¶9: "Society may offer little or no approval of the conduct of such a peripatetic lothario, but a person's motive for being in a place, so long as it is within the law, does not deprive him of the protection of the Fourth Amendment..."
Minnesota v. Carter (1998), 525 U.S. 83 -- The availability of Fourth Amendment relief does not depend on a determination of "standing" analyzed in terms of a legitimate expectation of privacy. Instead, to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable, meaning one that has an existence outside the Fourth Amendment, either by reference to concepts of real or personal property law, or to understandings that are recognized and permitted by society. An expectation of privacy in business premises is different from, and lesser than that in an individual's home.
United States v. Salvucci (1980), 448 U.S. 83, 85 -- "Today we hold that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. The automatic standing rule of Jones v. United States [(1960), 362 U.S. 257] is therefore overruled."
United States v. Padilla (1993), 508 U.S. 77 -- Coconspirators do not automatically have standing to challenge a search. They must demonstrate the invasion of a personal privacy or property right protected by the First Amendment.
Rakas v. United States (1978), 439 U.S. 128 -- Passengers in vehicle lacked standing to challenge warrantless search as they did not assert either a property or possessory interest or other legitimate expectation of privacy secured by the Fourth Amendment. Fourth Amendment rights may not be vicariously asserted by third party or "target" who does not claim his own Fourth Amendment rights have been violated. Also see Rawlings v. Kentucky (1980), 448 U.S. 98; United States v. Payner (1980), 447 U.S. 727 (unlawful search of someone else's brief case).
State v. Adams (1978), 53 Ohio St. 2d 223 -- Paragraph one of the syllabus: "A defendant has no standing to contest the search of an automobile and seizure of evidence therefrom where (1) the defendant was not present when the search and seizure occurred; (2) the defendant alleges no proprietary interest in the automobile; and (3) the defendant is not charged with an offense which includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. (Brown v. United States, 411 U.S. 223.)"
State v. Carter (1986), 28 Ohio App. 3d 60 -- Passenger in car may challenge a search where the claim is that his personal Fourth Amendment rights were violated. Defendant and owner were arrested as they exited a car which was searched, and he claimed there was not probable cause for a warrantless arrest under the circumstances.
State v. Steele (1981), 2 Ohio App. 3d 105 -- Defendant had standing to challenge search of a truck he testified he had rented. He lacked standing to challenge the search of a house since he exercised Fifth Amendment privilege when questioned about house and there was no other substantial evidence linking him to the premises. (Question why no effort was made to have waiver of Fifth Amendment privilege limited to suppression hearing.)
State v. McMillan (1993), 91 Ohio App. 3d -- Defendant was stopped while driving. Girlfriend was summoned to the scene, then detained in a jail cell with the couple's baby for several hours until she finally consented to search of their apartment, yielding cash and $1-5,000,000 in cocaine. Defendant had standing to raise illegality of her arrest in challenging the search of the shared residence.
State v. Carter (1994), 69 Ohio St. 3d 57, at 63 -- Passengers and driver of car, even if borrowed, have standing to challenge the legality of the stop. Also see State v. Ratcliff (1994), 95 Ohio App. 3d 199 (motorhome); State v. Hamilton (1997), 122 Ohio App. 3d 259 (girlfriend's car).
State v. Denune (1992), 82 Ohio App. 3d 497, 504 -- An individual has standing to challenge the search of corporately owned property where he is the sole shareholder, has control over the entire operation of the business, and it is shown that no substantial decision concerning the operation of the business can be made without his authorization.
Minnesota v. Olson (1990), 495 U.S. 91 -- An overnight guest has standing to challenge the legality of a search. At p. 92: "Since the decision in Katz v. United States, 389 U.S. 347 (1967), it has been the law that 'capacity to claim the protection of the Fourth Amendment depends...upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place'...A subjective expectation of privacy is legitimate if it is '"one that society is prepared to recognize as 'reasonable.'"'" Compare State v. Davis (1992), 80 Ohio App. 3d 277 where the defendant failed to establish he was an overnight guest instead of a mere visitor.
State v. Sims (1998), 127 Ohio App. 3d 603, 609 -- Defendant had standing to challenge entry to home of another where she and others present were immediately seized and not allowed to leave unless they consented to be searched. But she did not have standing to challenge seizure of drugs from a person who consented to such a search. Since the drugs seized from this person do not appear to have been the sole basis for the charge of corrupting another with drugs, defendant had standing to challenge other aspects of the search.
State v. Coleman (1997), 118 Ohio App. 3d 522 -- Man found in hotel room held not to have standing to challenge search as he was not a registered guest, said he was there with another person who was not a registered guest, and disclaimed ownership of drugs found in bathroom.
State v. Otte (1996), 74 Ohio St. 3d 555, 559 -- "A car thief has no legitimate expectation of privacy in a stolen car and therefore lacks standing to challenge its search." However, if his arrest was illegal, he has standing to challenge a search of the car under the fruit of the poisonous tree doctrine.
State v. Goodlow (1992), 84 Ohio App. 3d 529 -- Passengers in a motor vehicle have standing to challenge police action in stopping the vehicle and the resultant seizing of their persons. Rakas v. Illinois (1978), 439 U.S. 128, distinguished. Also see State v. Holmes (1985), 28 Ohio App. 3d 12, 14.
State v. Freeman (1980), 64 Ohio St. 2d 291, 296-298 -- Upon being approached at a bus station, defendant dropped the suitcases he was carrying and fled on foot. Paragraph two of the syllabus: "A defendant has no standing under the Fourth Amendment to the United States Constitution to object to a search and seizure of property that he has voluntarily abandoned." Also see Abel v. United States (1960), 362 U.S. 217, 240-241 (search of hotel room after defendant believed to be a Russian spy had checked out, and with the consent of the hotel management); Parman v. United States (C.A.D.C. 1968), 399 F. 2d 559 (apartment); United States v. Moore (C.A.D.C 1972), 459 F. 2d 1360 and United States v. Edwards (5th Cir. 1971), 441 F. 2d 749 (autos abandoned after pursuit, then flight on foot); State v. Brown (1984), 20 Ohio App. 3d 36 (trash left for collection).
State v. Smith (1997), 117 Ohio App. 3d 656, 667-668 -- Inmate did not have standing to challenge on the street search and seizure of his wife and the statements obtained from her. Nor did he have standing to challenge the search of her vehicle, as he was not present at the time of the search, alleged no proprietary interest in the auto, and was not charged with an offense including as an essential element possession of the seized evidence.
Loyal Order of Moose Lodge 1044 of Troy v. Ohio Liquor Control Commission (1995), 105 Ohio App. 3d 306 -- Liquor control agent sneaked into private club and observed illegal gambling activity, which led to civil liquor permit revocation proceedings. Administrative suspension was appealed to Common Pleas Court, then to the court of appeals. Court finds exclusionary rule should be applied in these circumstances.
State v. Hill (1998), 127 Ohio App. 3d 441 -- A parole officer lawfully enters a parolee's premises pursuant to the consent to search made a condition of parole when there are reasonable grounds to believe a condition of parole is being violated. That consent extends to areas controlled by the parolee and common areas, but not to areas such as bedrooms controlled by other residents. The parolee does not have standing to challenging an unlawful search of such premises unless a reasonable expectation of privacy can be demonstrated.
United States v. Calandra (1974), 414 U.S. 338 -- A grand jury witness may not invoke the exclusionary rule as a basis for refusing to answer questions, nor is the prosecution precluded from using illegally seized evidence in proceedings before the grand jury.

The Fruit of the Poisonous Tree Doctrine

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 fruit of the poisonous tree.
State v. Ali, 154 Ohio App. 3d 493, 2003-Ohio-5150 -- On the evening of September 11, 2001 officers illegally arrested the defendant who was robed and veiled. She announced she was a warrior of Allah and threatened to kill the officers. Held that the fruit of the poisonous tree doctrine does not reach statements that constitute an offense in themselves, here aggravated menacing. Also see Akron v. Holmes, Summit App. Nos. 02 CRB 13528, 13529 and 13530, 2004-Ohio-832; State v. Jobes, Montgomery App. No. 20210, 2004-Ohio-1167 (gun pointed at officer who had made illegal entry to defendant's trailer).
State v. Barnett, Huron App. No. H-03-039, 2004-Ohio-3156 -- During an illegal search, a fake sneeze disbursed some of the heroin lying on a plate. Since the sneeze incident was occasioned by the illegal search, the officer's observations forming the basis for a tampering with evidence charge is to be suppressed under the fruit of the poisonous tree doctrine. State v. Ali, 154 Ohio App. 3d 493, 2003-Ohio-5150, distinguished.
State v. Cal, Ottowa App. No. OT-03-025, 2004-Ohio-1329 -- Exigent circumstances did not validate warrantless entry to home where officer could ascertain safety of the occupants from the doorway. MTS properly granted as to obstructing official business charge. But testimony concerning the defendant later grabbing the wheel of the cruiser causing a crash should not have been suppressed.
State v. Karle (2001), 144 Ohio App. 3d 125 -- Officers following broadcast information establishing probable cause to arrest the defendant for failure to obey a lawful order went to his home where they made a warrantless arrest, notwithstanding the defendant's order they leave his property. Warrantless arrests in the home or curtilage are illegal absent exigent circumstances. None existed. Though the motion to suppress was constitutionally sound, the only fruit of the illegal arrest was the non-inculpatory order to leave. Therefore the defendant was not prejudiced. But since the arrest was illegal, his resisting arrest conviction is reversed.
United States v. Patane (2004), 124 S.Ct. 2620 -- The remedy for a Miranda violation is suppression of statements. The prosecution may used physical evidence seized as the result of an unwarned voluntary statement.
State v. Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255, ¶46-49 -- The Ohio Constitution is a document of independence force. Though evidence obtained as the result of belated Miranda warnings would not have been suppressible under the federal constitution, it is under Article I, Sec. 10. Compare United States v. Patane (2004), 542 U.S. 630.
Wong Sun v. United States (1962), 371 U.S. 471 -- Statements and drugs obtained as the fruit of an unlawful arrest (warrantless and not supported by probable cause) may not be admitted. However, Wong Sun's subsequent confession, given when he returned to the police station several days after he had been released on his own recognizance, was admissible since the intervening events attenuated the effect of the unlawful arrest of his associate.
Taylor v. Alabama (1982), 457 U.S. 687, 692-693 -- Fingerprints taken incident to an unlawful arrest were themselves the fruit of that arrest and could not be used to vindicate warrant subsequently issued and in turn remove taint from confession obtained. Also see Davis v. Mississippi (1969), 394 U.S. 721.
State v. Slatter (1981), 66 Ohio St. 2d 452 -- R.C. 2935.26, requiring the issuance of a citation when a minor misdemeanor is charged unless certain exceptions apply, creates a substantive right of freedom from arrest for those accused of committing a minor misdemeanor. Since the defendant had a right not to be arrested, evidence seized during his unlawful arrest should have been suppressed and prosecution for escape could not go forward. (Halloween at Ohio University.) Compare State v. Bronaugh (1984), 16 Ohio App. 3d 237; State v. Pender (1980), 66 Ohio Misc. 23.
State v. Thompson (1995), 103 Ohio App. 3d 498 -- Search of vehicle was accomplished through use of keys seized during illegal search of defendant's person. Regardless of whether defendant has standing to contest search of vehicles he did not own, evidence found in cars as the fruit of the illegal search of his person was properly suppressed. Also see State v. Otte (1996), 74 Ohio St. 3d 555, 559 (claimed illegal arrest).
State v. McMillan (1993), 91 Ohio App. 3d -- Defendant was stopped while driving. Girlfriend was summoned to the scene, then detained in a jail cell with the couple's baby for several hours until she finally consented to search of their apartment, yielding cash and $1-5,000,000 in cocaine. Since her detention was illegal, the consent was invalid as the fruit of the poisonous tree.
State v. Carter (1994), 69 Ohio St. 3d 57, 67-68 -- Where the information used to obtain a warrant was obtained illegally, and that illegality has not been purged, the good faith exception does not apply. The warrant is the fruit of the previous illegality.
State v. Warren (1998), 129 Ohio App. 3d 598 -- Terry frisk for weapons held to have been unjustified. Contraband was discovered only after officer felt a lump and asked what it was. Suppression required under the fruit of the poisonous tree doctrine.
Kirtland Hills v. McGrath (1993), 89 Ohio App. 3d 282 -- Stop of vehicle was not justified where officer mistakenly believed speed limit was 35 mph and defendant was below the 50 mph prima facie limit which actually applied. Evidence resulting from the illegal stop, which led to an OMVI prosecution, suppressed as fruit of the poisonous tree.
Blanchester v. Hester (1992), 81 Ohio App. 3d 815 -- Minor traffic offense did not left warrantless entrance to defendant's home. Resulting disorderly conduct and resisting arrest charges dismissed as fruit of the poisonous tree. However, the traffic charges should not have been dismissed.
State v. Hamilton (1997), 122 Ohio App. 3d 259 -- Detention of auto passenger appeared to last longer than permitted to accomplish legitimate objectives and the court believed her claimed consent to search was mere submission to authority. Driver-boyfriend's confession following a second "consent" search of apartment suppressed.
In re Smalley (1989), 62 Ohio App. 3d 435 -- Pager was illegally seized from juvenile's pocket. (Officer never said how he came into possession so court relies on defendant's account.) Possessing criminal tools conviction reversed along with drug trafficking charge which arose from calls returned when the beeper went off and defendant's admissions.
State v. Peay (1991), 62 Ohio Misc. 2d 92 -- Though deputy had information that the defendant sold drugs and owned a gun, the reason for stopping his truck was two minor misdemeanor citations. Since the defendant had a right not to be arrested, the search of his vehicle was illegal.

Exceptions to the Exclusionary Rule


    Inevitable Discovery

State v. Keith, 178 Ohio App. 3d 46, 2008-Ohio-4326 – Officer followed motel operator into a room claiming he was concerned about her safety given the reputation of the hotel for drug activity and prostitution. Once inside, drugs were in plain view on top of a dresser. State argued inevitable discovery as the drugs might have been in plain sight had the officer remained at the door. "If we hadn‘t done it wrong we would have done it right" doesn‘t fly.
State v. Coston, 168 Ohio App. 3d 278, 2006-Ohio-3961 -- Applying State v. Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255, defendant was in custody when asked if there were weapons in the car, but the officer independently had probable cause to search the car based on the odor of marijuana and inevitably would have discovered a concealed handgun.
State v. Helton, 160 Ohio App. 3d 1789, 2005-Ohio-1789 -- Highway Patrol officers arrested the defendant for drug paraphernalia, but did not advise him of his Miranda rights before asking him if he had methamphetamines in his underwear. He said that he did, but they belonged to his companion. State did not contest suppression of this statement, but maintained the drugs were admissible under the inevitable discovery doctrine. MTS properly granted as there was nothing establishing that he would have been subject to such an exhaustive search.
State v. Hatcher, Ashtabula App. No. 2002-CA-0100, 2004-Ohio-2451 -- The inevitable discovery exception does not apply where the claim is merely that the state had probable cause and could have obtained a search warrant. It must be shown that an alternative line of investigation was being actively pursued prior to the misconduct warranting suppression.
Nix v. Williams (1984), 467 U.S. 431 -- Through violation of defendant's Fifth Amendment privilege, police learned of location of body. However, area was already being systematically searched and discovery of body would have been inevitable. While defendant's statement's were inadmissible, evidence concerning body's location and condition was. Also see United States v. Falley (2nd Cir. 1973), 489 F. 2d 33 ("saturation investigation" already underway would have led to same evidence); United States v. Brookins (5th Cir. 1980), 614 F. 2d 1037; United States v. Leonardi (2nd Cir. 1980), 623 F. 2d 746 (identity and potential value of witness had already become known); United States v. Romero (10th Cir. 1982), 692 F. 2d 699, 703-704 (though seizure was beyond permissible scope of Terry frisk, discovery of bag of marijuana would have been inevitable as a part of search incident to arrest based on other circumstances).
State v. Perkins (1985), 18 Ohio St. 3d 193 -- Syllabus: "The ultimate or inevitable discovery exception to the Exclusionary Rule is hereby adopted so that illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation. (Nix v. Williams...followed.)"
State v. Pearson (1997), 119 Ohio App. 3d 745 -- Defendant submitted to the drawing of a blood sample pursuant to an invalid court order. A second specimen was later drawn pursuant to a valid warrant, but was never used for comparison purposes. DNA profile from first draw was sent to another county investigating a factually similar rape, and led to indictment. Inevitable discovery saves use of test results as police in second county would have proceeded to obtain a valid warrant had they not had the results of the previous testing. Related cases: State v. Pearson (1996), 114 Ohio App. 3d 153; State v. Pearson (1996), 114 Ohio App. 3d 168; State v. Pearson (1998), 130 Ohio App. 3d 577.
State v. Stringer (1995), 103 Ohio App. 3d 430 -- Defendant was stopped for speeding and car was searched after he and passenger were removed. Trial court correctly determined that the search was not justified as a sweep for weapons or as an inventory search. However, as the car was registered to a third party, and would have been impounded in any event, the inevitable discovery exception applies, since following written department policy contraband in the car would have been found. However, impound search would not inevitably have led to discovery of a large quantity of marijuana at another location, so that evidence remains suppressed.
State v. Wilson (1994), 97 Ohio App. 3d 333 -- Defendant was arrested illegally in his mother's house and gave consent to search of his parked car, where marijuana was found. A dope dog was on standby, but was not used, nor was a warrant obtained to search the car. Inevitable discovery does not save the search. Officers were not pursuing an alternate line of investigation of the defendant, independent of the investigation which led to the illegal discovery of the marijuana. Compare State v. Juniper (1998), 130 Ohio App. 3d 219.

    Good Faith

Heien v. North Carolina, ___ U.S. ___, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) -- United States Supreme Court holds that a “reasonable” mistake of law can give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.
State v. Smith (2001), 146 Ohio App. 3d 154 -- In evaluating the objective reasonableness of an officer's good faith a court generally should not look beyond the four corners of the affidavit. However, an exception should be made when the additional information is exculpatory, since the warrant might not have been issued had the additional information been included in the affidavit.
State v. Dunihue, 161 Ohio App. 3d 731, 2005-Ohio-3223 -- Though the information proffered in obtaining a warrant may not have been specific as to times, the issue under the good faith exception is whether the warrant was so lacking in probable cause that it was unreasonable for deputies to rely upon it. Court cites a prosecutor's involvement in obtaining the warrant as a basis for deputies to believe the warrant was valid.
United States v. Leon (1984), 468 U.S. 897 -- The exclusionary rule will not be applied when officers have reasonably relied on a search warrant issued by a detached and neutral magistrate, though the warrant was ultimately found to be invalid. The exclusionary rule may still be applied if the warrant was obtained through knowing or reckless falsity, or because the magistrate failed to act in a neutral or detached fashion or where the affidavit submitted did not present a substantial basis from which the magistrate could determine the existence of probable cause.
State v Simon (1997), 119 Ohio App. 3d 484 -- The good faith exception applies to searches with a warrant, the notion being that the mistake was made by the issuing magistrate, not the officers executing the warrant. Illinois v. Rodriguez (1990), 497 U.S. 177 does not extend the rule of Leon. Instead, it involved the question of consent, which by its nature called upon the officers to make a determination whether they had been given consent, which in Rodriguez proved to be mistaken.
State v. Johnson (1988), 48 Ohio App. 3d 256 -- The good faith exception is limited to search warrants and does not apply to searches incident to arrest. Suppression is required where search incident to arrest was the result of an arrest warrant found to have been issued on a bare bones affidavit, insufficient to establish probable cause.
Arizona v. Evans (1995), 514 U.S. 1 -- Defendant was stopped for a minor traffic offense. Computer showed an outstanding arrest warrant, which in fact had been recalled. Error appears to have been made by the clerk's office. Defendant dropped a hand rolled cigarette when ordered out of his car, leading to discovery of marijuana under a seat. Exclusionary rule held not to apply as in these circumstances would not deter illegal police conduct. Though not directly characterizing this as an extension of the good faith doctrine, court follows the Leon rationale.
Massachusetts v. Sheppard (1984), 468 U.S. 981 -- Police could in good faith rely upon search warrant judge had assured them had been put into correct form, though he in fact failed to make the necessary changes. Search was limited to the items listed in the affidavit, relating to a homicide.
State v. George (1989), 45 Ohio St. 3d 325 -- Paragraph three of the syllabus: "The Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. (United States v. Leon [1984], 468 U.S. 897, followed.)" Also see State v. Wilmoth (1986), 22 Ohio St. 3d 251.
State v. Carter (1994), 69 Ohio St. 3d 57, 67-68 -- Where the information used to obtain a warrant was obtained illegally, and that illegality has not been purged, the good faith exception does not apply. The warrant is the fruit of the previous illegality. Leon dictates that suppression be granted where mistakes by the magistrate are not at issue and illegal police conduct may be deterred.
State v. Klosterman (1996), 114 Ohio App. 3d 327 -- Affidavit in support of search warrant was based on information from informants whose credibility was not established, unspecified "reliable intelligence," and an old conviction. In the first appeal the court found the affidavit did not provide the issuing magistrate with a substantial basis for finding probable cause, but remanded to see if good faith applied. On further appeal, the court finds it does not. Good faith must be measured against what appears within the affidavit. Officer should have known information set forth was insufficient. Assistance of prosecutor in preparing the forms not a factor.
State v. Hollis (1994), 98 Ohio App. 3d 549 -- Stale, conclusory allegations of illicit activities, some of which were not illegal, set forth in affidavit in support of warrant to search for obscene materials so plainly failed to establish probable cause that good faith does not save the search.
State v. Jones (1991), 72 Ohio App. 3d 522, 526 -- Information contained in the affidavit was untimely and did not left issuance of warrant. In these circumstances, the good faith exception did not apply as the affidavit was so devoid of facts that officers could not reasonably rely upon the warrant. Also see State v. Rodriguez (1989), 64 Ohio App. 3d 183. Compare State v. Zinkiewicz (1990), 67 Ohio App. 3d 99.
State v. Dore (1992), 79 Ohio App. 3d 466 -- Good faith exception applied where warrant was issued for improper and nonexistent address, but the correct address was included in affidavit.
State v. Hawkins (1997), 120 Ohio App. 3d 277 -- Agents attended a "welcome home from jail party" and obtained information used to obtain a search warrant. Unartful grammar within the persons, places and vehicles to be searched section of the warrant was ambiguous as to whether campers on the premises were to be searched, or whether they were mentioned only to help identify the location of the main house. Good faith saved the search of the defendant's trailer.
State v. Ralls (1996), 116 Ohio App. 3d 92 -- Assertions in affidavit were refuted by reference to materials officer had ready access to. Concluded that affiant acted with a reckless disregard for the truth. Balance of affidavit did not establish probable cause. Good faith does not apply. Trial court properly suppressed fruits of the search.
State v. Swearingen (1999), 131 Ohio App. 3d 123 -- The day after the defendant was arrested on drug charges, detective asked for a urine sample. Defendant refused. Detective obtained a warrant citing an informant's claim defendant regularly smoked crack. Test results led to possession charge. Fruits of search properly suppressed. Good faith does not save the search as information supplied was so lacking as to render official belief in its existence unreasonable.
State v. Greer (1996), 114 Ohio App. 3d 299 -- Defendant was stopped after officer observed what he thought was an illegal U-turn. Under the controlling ordinances, the turn was legal, though determining this to be the case was not free from difficulty. Since the officer's mistake of law was objectively reasonable, exclusionary rule need not be applied.

    The Independent Source Doctrine

Murray v. United States (1988), 487 U.S. 533 -- Federal agents had defendant and others suspected of illegal drug activity under surveillance. In the process, agents made an illegal entry into a warehouse where bales of marijuana were seen. A valid search warrant was obtained, providing other information but making no mention of the illegal entry. Held that if there is an independent source for the discovery of contraband, not tainted by whatever unlawful activity occurred, suppression is not required. Factual issue on remand is whether agents would have sought warrant had it not been for information gained during the illegal entry. Also see Segura v. United States (1983), 468 U.S. 796.
Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385 -- Illegally seized papers had been returned, but were later subpoenaed for use at trial and owner of company was fined and jailed for contempt when he refused to do so. Unless knowledge of same documents is obtained from an independent source, documents may not be sought if knowledge was gained through the government's wrongful conduct.
State v. Bevan (1992), 80 Ohio App. 3d 126 -- Car was stopped supposedly because headlights were not on. Police ordered everyone out of the car. Defendant dropped pack of cigarettes found to contain packet of cocaine. Suppression should have been ordered. Independent source doctrine did not apply since recovery was tainted by illegality of search beyond claimed headlight violation.

    Attenuation Doctrine

Last updated 7/12/2016
Utah v. Strieff, 2016 U.S. LEXIS 3926.   US Supreme Court holds that even if a person is illegally detained, but is determined to have an outstanding warrant after his ID is obtained and a warrant check is done, the subsequent arrest and search is valid based upon the existence of the outstanding warrant, which significantly attenuates the illegal detention.

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