Bookmark this page on your mobile

QR Code image

What is this?

Daily Court Reporter - News Evidence can be used when police with warrant improperly enter premises

 

Evidence can be used when police with warrant improperly enter premises

Dan Trevas, Supreme Court of Ohio

If a police officer with search warrant violates Ohio’s “knock-and-announce” law, the criminal evidence obtained during the search can still be used to prosecute the suspect, the Ohio Supreme Court ruled recently.

A Supreme Court majority found the exclusionary rule , which is used to prevent the use of illegally obtained evidence, is not the appropriate remedy for a knock-and-announce violation. The ruling allows the use of evidence collected by Boardman police who burst into the home of a suspected heroin dealer without announcing they had a warrant to search the apartment where he was living.

Writing for the Court majority, Justice William M. O’Neill explained the exclusionary rule was designed to protect against unconstitutional warrantless or illegal searches. The purpose of knock-and-announce is to protect the safety, property, and privacy of those on the premises “that can be destroyed by a sudden entrance.”

“Suppressing evidence found during a warranted search of a home will not heal a physical injury, fix a door, or undo the shock of embarrassment when police enter without notice of their presence and purpose,” the opinion stated.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and R. Patrick DeWine joined the majority opinion. Justices Terrence O’Donnell and Patrick F. Fischer concurred in judgment only. Justice Judith L. French dissented and would dismiss the case as improvidently accepted.

Police Seek Heroin Dealer

In 2012, Boardman police set up two “controlled buys” of heroin from Harsimran Singh in Mahoning County. Based on the sale and a prior arrest for drug abuse, Boardman police acquired a search warrant for Singh’s home.

Singh lived at the apartment of his girlfriend, Sherri A. Bembry. Seven Boardman police officers executed the search warrant by knocking several times at Bembry’ s door at 8:30 a.m. About 30 seconds after knocking, someone inside asked, “Who is it?” An officer replied, “Police. Open the door.”

Boardman Detective Michael Dado estimated the police waited about 15 second after announcing their presence before forcing the door open with a battering ram. Singh later claimed it was faster than that and he was not sure it was actually the police at his door. Dado acknowledged that the police never stated their purpose.

Singh was taken from the apartment and thrown to the ground. The search turned up contraband, including heroin packaged for sale and a stolen handgun.

Police learned that three children lived in a nearby apartment, which led to a grand jury indictment of Singh for trafficking heroin in the vicinity of a juvenile. He also was charged with one count of possession of a controlled substance and receiving a stolen firearm. Bembry was charged with one count of permitting drug abuse.

Suspects Seek to Suppress Evidence

Bembry and Singh filed a motion to suppress the evidence obtained during the search, claiming the search did not meet the requirements of the U.S. Constitution’s Fourth Amendment and the Ohio Constitution’s Article I, Section 14. Prosecutors responded that suppression is not the appropriate response to evidence obtained by police with a search warrant that violates R.C. 2935.15, the knock-and-announce law.

The trial court granted Bembry and Singh’s motion, finding the police violated the law without any exigent circumstances justifying entering so quickly.

The Mahoning County Prosecuting Attorney’s Office appealed the ruling to the Seventh District Court of Appeals. The Seventh District reversed the trial court, finding the facts in Bembry and Singh’s case were “virtually identical” to those in the U.S. Supreme Court’s 2006 Hudson v. Michigan case. The Hudson case determined that the exclusionary rule under the Fourth Amendment does not apply to a knock-and-announce violation.

Bembry and Singh appealed to the Ohio Supreme Court, which agreed to consider whether Ohio’s own constitutional provision against illegal search and seizure in Article I, Section 14 has greater protections than the federal constitution and should apply to their case.

Exclusionary Rule Examined

Because the appellate court did not specifically address the Ohio Constitution, the Supreme Court wrote that it assumed the Seventh District ruled that neither the federal nor state constitution required the evidence to be suppressed when the knock-and-announce law is violated.

The opinion noted the exclusionary rule is a relatively recent development in the law that was first recognized by the U.S. Supreme Court in 1914 for search violations in federal criminal cases. The U.S. Supreme Court’s 1961 Mapp v. Ohio decision found the exclusionary rule applied to state criminal prosecutions.

While Ohio has applied the exclusionary rule to illegal searches since Mapp, the Ohio Supreme Court has only once been asked to address whether the Ohio Constitution afforded greater protection that would also exclude evidence if police violated the knock-and-announce rule, the opinion stated. However, the question came up in a case shortly after the 2006 Hudson ruling, and the case was sent back to trial court to apply the Hudson ruling without ever commenting on the Ohio Constitution.

No Additional Protection in Ohio Constitution

The Supreme Court in some cases has ruled the Ohio Constitution provides greater protection than similarly worded sections of the U.S. Constitution, the opinion noted. In most cases, the two documents are interpreted to have similar meanings.

“We will generally ‘harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to find otherwise,’” the Court stated, citing its 1997 State v. Robinette opinion.

The Court concluded that Bembry and Singh have not provided any arguments that demonstrate the state constitution provides additional protections that would exclude evidence because of a knock-and-announce violation.

The opinion explained the knock-and-announce principle is a much older rule than the exclusionary rule with its roots in ancient common law. Ohio codified the principle in R.C. 2935.12. The law permits police executing a search warrant to break down an outer door or window to enter after the police give notice of their intention to make an arrest or execute the search, and are refused admittance.

The Court noted the law does not spell out a person’s remedy when the statute is violated. However, the Court used the logic of Hudson to conclude it would not lead to suppressing the evidence. The opinion stated the knock-and-announce rule protects the physical safety of people and property from the sudden entrance and against any shock or embarrassment that may follow. The threat of suppression would not likely deter police from failing to follow the law, because police could still claim they are allowed to bypass the law under certain emergency circumstances.

The Court remanded the case to the trial court for further proceedings.

2016-0238. State v. Bembry, Slip Opinion No. 2017-Ohio-8114.

A pdf of the opinion can be found online at: https://docs.google.com/viewerng/viewer?url=http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-8114.pdf

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

Date Published: October 30, 2017

 

Supreme Court of Ohio

 

Twelve people indicted installing credit-card skimmers on gas pumps in five states and stealing account information from thousands

Twelve people were charged in a 26-count indictment for their roles in a conspiracy to install credit-card skimmers on gas pumps in at least five states, including several locations in Northeast Ohio, and steal credit-card account information from thousands of people.

Robes on the road

The Ohio Supreme Court didn’t step tentatively into its Off-Site Court Program. At launch, the Court scheduled seven sessions in 18 months outside of its Columbus courtroom. That bold start began in 1987 – 30 years ago this October – and was spearheaded by the late Chief Justice Thomas J. Moyer.

Ohio House passes legislation that would rename part of state highway after Ohio-born singer, actor Roy Rogers

Lawmakers in the Ohio House of Representatives by a 91-1 vote recently passed a bill that would name a section of a state highway in Scioto County for a favorite son of the region.

Texas man indicted for having nine pounds of heroin

A Texas man was indicted after federal court after being arrested with nearly four kilograms of heroin, law enforcement officials said.

Study highlights growth of organic agriculture in Ohio

Ohio now 7th in the nation in the number of organic farms

Lawmakers want loophole for drug dealers closed

Prompted by the ongoing public health crisis resulting from opioid addiction's grip on the Buckeye State, a pair of Republican lawmakers are hopeful their bill will aid in pinning manslaughter charges on drug dealers whose clients die from an overdose.

Influenza season begins; ideal time to get flu shot

Flu vaccination best protection against illness and missed work or school

Auditor Yost and Senator Lehner introduce bill to curb Medicaid fraud

Auditor of State Dave Yost and Sen. Peggy Lehner recently announced legislation to stop the kind of Medicaid fraud and overpayments that have cost taxpayers nearly $29 million since 2011 and deprived Medicaid patients of the care those dollars are intended to provide.

Department of Higher Education announces regional RAPIDS awards

$2.9 million approved for collaborative workforce development projects in the Western, Northern Appalachia, and Central Ohio regions

WSU med students raise money for hurricane relief efforts

Medical students at the Wright State University Boonshoft School of Medicine raised more than $1,500 for hurricane relief efforts through a bake sale and a Taste of the South food event.

2017-18 swimming and diving teams to compete in final season at WSU

Following its spring announcement that Wright State University was eliminating its men’s and women’s swimming and diving teams because of university-wide budget cuts, Wright State is confirming that the 2017-18 season will be the final season of competition for those teams.

Wright-Patt’s Gate 12A to close during road surface improvement project

Gate 12A (AFMC HQ gate) will be closed to all inbound and outbound traffic due to scheduled construction beginning Oct. 18.

Sinclair Theatre presents Radio Plays - be soundly scared!

Sinclair Theatre invites you to be SOUNDLY SCARED with Radio Plays – 4 selections of the horror genre presented November 2-5 in Sinclair’s Black Box Theatre, on the fourth floor of Building 2.

The University of Dayton and Premier Health transforming fairgrounds

The University of Dayton and Premier Health have selected an Ohio-based master planning firm, planning NEXT, to develop a community-minded vision for 38 acres on South Main Street, the former home of the Montgomery County fairgrounds.

Treat your family to HallZOOween at the Cincinnati Zoo & BOO-tanical Garden

HallZOOween, presented by Frisch’s Big Boy, kicks off this weekend! Little ghouls and boys can trick-or-treat around the Cincinnati Zoo & BOO-tanical Garden on October 7-8, 14-15, 21-22 & 28-29 from Noon – 5 p.m. Please BYOB (bring your own bag) to help the #GreenestZooinAmerica stay green!

UD football falls to Campbell, 17-7

All the scoring came in the second half as Campbell retained hold of first place in the Pioneer Football League with a 17-7 win at Dayton.

Proposed auto registration tax raises constitutional questions

The Ohio Legislative Service Commission's analysis of a bill calling for a hike in auto registration taxes to fund Ohio roads, highways and transportation infrastructure found that Senate Bill 113 may run counter to at least two clauses of the U.S. Constitution.

Prepare your teen driver for the road ahead

The Ohio Department of Insurance Director Jillian Froment and John Born, Director of the Ohio Department of Public Safety (ODPS), which includes the Ohio State Highway Patrol, are encouraging all parents to talk to their teen drivers about the rules of the road when they are behind the wheel as well as the dangers of distracted driving.

Lawmakers want increased protection for utility workers from threats

Threats directed toward utility workers while on the job presumably have become enough of a problem that a lawmaker duo in the Ohio House of Representatives has proposed expanding the aggravated menacing offense to afford these individuals the statute's protections.

Automation continues to grow at Ohio manufacturers

(Columbus) If robots are indeed taking over the workplace, they've apparently found a home in Ohio.