State v. Bembry

151 Ohio St.3d 502

90 N.E.3d 891

2017 Ohio 8114

The STATE of Ohio, Appellee,

v.BEMBRY et al., Appellants.

No. 2016–0238

Supreme Court of Ohio.

Submitted March 1, 2017

Decided October 10, 2017

Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M. Rivera, Assistant Prosecuting Attorney, for appellee.

Louis M. DeFabio, for appellants.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and Peter T. Reed and Hannah C. Wilson, Deputy Solicitors, urging affirmance for amicus curiae Ohio Attorney General Michael DeWine.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecutor Ron O'Brien.

Timothy Young, Ohio Public Defender, and Katherine Ross–Kinzie, Assistant Public Defender, urging reversal for amicus curiae Ohio Public Defender.

O'Neill, J.{¶ 1} In this appeal, we take up whether the exclusionary rule is the appropriate remedy when police executing a valid search warrant violate the requirements of the knock-and-announce statute, R.C. 2935.12. We conclude that the exclusion of evidence is not the proper remedy for a violation of the knock-and-announce statute. We therefore affirm the judgment of the Seventh District Court of Appeals and remand the cause to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Boardman police supervised two "controlled buys" in October 2012, during which a confidential informant purchased heroin from appellant Harsimran Singh near the apartment where Singh lived. Based upon the two incidents during which Singh sold heroin and because of his prior arrest for a crime of drug abuse, Boardman police sought and acquired a search warrant for the apartment.

{¶ 3} Singh lived with his girlfriend, appellant Sherri A. Bembry. Seven Boardman police officers executed the warrant at her apartment at 8:30 a.m. on November 2, 2012. Officers knocked several times. Thirty seconds after police knocked on the door, someone in the apartment asked, "[W]ho is it?" An officer replied, "Police. Open the door."

{¶ 4} After more time went by, police officers forced the door open with a battering ram. Detective Michael Dado claimed that the officers waited 15 seconds to enter the apartment after announcing their presence. Singh claimed that the entry was more immediate and that he was not sure that it was the police at his door. Detective Dado admitted that the police never stated their purpose, which was to execute a search warrant. Singh was taken from the apartment and thrown on the ground.

{¶ 5} The search turned up contraband in the form of drugs, instruments of drug trafficking, and a stolen weapon. Officers found marijuana, two digital scales coated with drug residue in the bedroom, and eight bindles of heroin packaged for sale in a dresser. They found a .38–caliber pistol that was registered in the Law Enforcement Automated Data System database as a stolen weapon. And they found a semiautomatic AK–47 and two loaded magazines under the mattress, although the state ultimately charged no crimes regarding the rifle. After the search, officers learned that three children under the age of seven lived in a nearby apartment.

{¶ 6} A grand jury indicted Singh on one count of trafficking in heroin in the vicinity of a juvenile, R.C. 2925.03(A)(2) and (C)(6)(b) ; one count of possession of a controlled substance, R.C. 2925.11(A) and (C)(6)(a) ; and one count of receiving a stolen firearm, R.C. 2913.51(A) and (C). Bembry was indicted on one count of permitting drug abuse, R.C. 2925.13(B) and (C)(1) and (3).

{¶ 7} Bembry and Singh jointly moved to suppress all evidence obtained during the search. They claimed that "the search itself did not comport with the reasonableness requirement" of the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution. The state responded that the suppression of evidence is not the appropriate remedy when police executing a search warrant fail to comply with the knock-and-announce statute, R.C. 2935.12. The trial court granted the motion to suppress, finding that the Boardman police had violated R.C. 2935.12 without any exigent circumstances justifying the violation.

{¶ 8} The state appealed pursuant to R.C. 2945.67(A), raising the following assignment of error: " ‘The trial court should have denied defendants' motion to suppress, because the law is well-settled that the exclusionary rule does not apply to violations of the knock-and-announce rule.’ " 2015-Ohio-5598, 2015 WL 9693907, ¶ 7. The court of appeals explained that the facts of Bembry and Singh's case were "virtually identical" to the facts in Hudson v. Michigan , 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). 2015-Ohio-5598, 2015 WL 9693907, at ¶ 11. Applying the logic of Hudson , the court of appeals reversed the judgment of the trial court, vacated the suppression order, and remanded the matter. 2015-Ohio-5598, 2015 WL 9693907, at ¶ 11–19.

{¶ 9} Bembry and Singh appealed, and we accepted jurisdiction over the following proposition of law: "The exclusionary rule is the appropriate remedy under Article I, Section 14 of the Ohio Constitution for a violation of R.C. 2935.12." See 145 Ohio St.3d 1470, 2016-Ohio-3028, 49 N.E.3d 1313.

DISCUSSION

{¶ 10} The court of appeals made no mention of the independent protection provided by Article I, Section 14 of the Ohio Constitution. Generally, we will not consider any issue "that was not raised in any way in the Court of Appeals and was not considered or decided by that court." Toledo v. Reasonover , 5 Ohio St.2d 22, 213 N.E.2d 179 (1965), paragraph two of the syllabus. We have justified this rule in no uncertain terms:

Any other rule would relieve counsel from any duty or responsibility to the court, and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby disregarding entirely the true relation of court and counsel, which enjoins upon counsel the duty to exercise diligence and to aid the court, rather than by silence mislead the court into commission of error.

State v. Driscoll , 106 Ohio St. 33, 39, 138 N.E. 376 (1922). It is therefore appropriate to address whether the foregoing proposition of law is properly before us before reaching the merits.

{¶ 11} The record before us shows that the issue was raised at the trial level and fully briefed at the appellate level. Bembry and Singh devoted much of their brief below to this court's decisions holding that in some circumstances, Article I, Section 14 of the Ohio Constitution affords greater protection than the Fourth Amendment; to the decisions of other state courts regarding suppression as a remedy for knock-and-announce violations; and to the significance of the General Assembly's knock-and-announce enactment, R.C. 2935.12. They submitted their brief more than a year before the court of appeals issued its judgment. Although the decision of the court of appeals does not offer any discussion regarding Article I, Section 14 of the Ohio Constitution, it appears from the record that the court of appeals considered and rejected the arguments asserted in Bembry and Singh's only brief below. For those reasons, we hold that Bembry and Singh adequately preserved their proposition of law.

{¶ 12} We find further support from the Rules of Appellate Procedure, which permit an appellee "who does not seek to change the judgment or order" of a lower court to defend that judgment, even "on a ground other than that relied on by the trial court," without "[filing] a notice of cross appeal or [raising] a cross-assignment of error." App.R. 3(C)(2). Bembry and Singh therefore met their duty to raise the issue to the court of appeals by briefing it there in detail. Accordingly, we will proceed to the merits of this appeal presuming that the lower court's decision stands for the proposition that the United States Supreme Court's decision in Hudson governs the appropriate remedy for a violation of the knock-and-announce principle under both the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.

{¶ 13} Turning to the proposition at hand, we must answer whether Ohio's independent provision of the "right of the people to be secure * * * against unreasonable searches and seizures" in Ohio Constitution, Article I, Section 14 requires the suppression of evidence when police fail to comply with the knock-and-announce principle while executing a valid search warrant. We hold that it does not.

THE EXCLUSIONARY RULE

{¶ 14} The exclusionary rule is a fairly recent legal development, and its rise is inextricably entwined with the incorporation of the Bill of Rights within the Fourteenth Amendment. More than 100 years ago, the United States Supreme Court recognized the federal suppression remedy for warrantless searches and seizures, in Weeks v. United States , 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The court held that a federal district court in Missouri committed error when it denied a criminal defendant's pretrial application to return seized property on the grounds that the property was taken from his home during a warrantless search. Id.

{¶ 15} Prior to 1936, Ohio courts sometimes excluded evidence resulting from search-and-seizure violations in criminal investigations, but application of the exclusion remedy was inconsistent. See State v. Lindway , 131 Ohio St. 166, 172–180, 2 N.E.2d 490 (1936). When this court squarely took up whether illegally obtained evidence should be barred from trial, it noted that courts in the majority of other states had "[held] such evidence admissible on the basis that if it is pertinent to the main issue in the case, a court need not concern itself with the collateral issue of how it was gotten." Id. at 173, 2 N.E.2d 490. Joining the courts of those states, this court held that the Fourth...