Ohio Court Tells Cops They Need To Know The Law If They’re Going To Engage In Pretextual Stops
Pretextual stops are law enforcement's favorite way to fish for larger catches. Any minor moving violation can predicate a stop. That leads to conversations - often non-consensual - with drivers and passengers. Any number of factors can be opportunistically read by officers to add up to reasonable suspicion."
Once that develops," the party begins. Cars, drivers, and passengers can be searched. Drug dogs can be brought in. Cash can be lifted by so-called drug interdiction" officers. And so on.
And cops, for the most part, don't even actually have to witness an actual moving violation. In many cases, they just need to think they have. As long as they subjectively believe they've witnessed even the most minor of crimes, they can get started with the informal process of turning a minor traffic stop into a full-blown, cops-all-over-the-fucking-place investigation."
Every so often, courts keep cops honest. They call them out for their bad (read: opportune) judgment calls. They make them realize that if they expect to be called law enforcement officers," they'd better have a bit more knowledge about the law.
That's the case here, in a court decision brought to us by FourthAmendment.com. An Ohio appeals court has ruled against the presumption of good faith" to remind the state's police officers that if they expect to use the law to engage in roadside fishing expeditions, they damn sure better know the laws they're using to kickstart warrantless searches.
This one has a bit of a twist: a global pandemic!
Interested? Read on!
Reasonably ignorant" is one thing. Maintaining your reasonable ignorance" under extremely unique circumstances? Far less forgivable.
Here's how things developed only months after COVID-19 started wreaking havoc all over the nation, according to the appellate court ruling's [PDF] recounting of the traffic stop that led to this motion to suppress.
On August 11, 2020, Officer Jacobs was driving his patrol route, in a marked Whitehall police cruiser, when he first observed a vehicle near the intersection of Yearling and Main Street. According to Officer Jacobs, he randomly runs vehicle tags when there is not much going on." Officer Jacobs described the process of running tags as follows: I have a computer in the cruiser with me and I just type in the plate number. It goes to the LEADS terminal which pops up with everybody's information and will show basically all of the vitals for the BMV and any other information that people put in." Officer Jacobs testified that when he ran the tag on appellant's vehicle, he concluded that appellant's vehicle registration was expired. When asked if LEADS provided the exact date of expiration or generally that the vehicle registration was expired, Officer Jacobs responded, [i]t will show the exact date of vehicle expiration."
Believing that appellant's vehicle registration had expired, Officer Jacobs initiated a traffic stop. According to Officer Jacobs, when he approached the window, he saw the [appellant] reach over the passenger seat, like extensively reach over," and he could smell the odor of raw marijuana coming from the vehicle. After smelling the odor of marijuana, Officer Jacobs asked appellant to exit the vehicle. Officer Jacobs searched the vehicle and discovered rounds of ammunition, marijuana, and a handgun.
Add one bored cop to the odor of marijuana," add a dose of ignorance, and let the rights violations commence!
But while LEADS may have indicated the plate was expired, amendments to state law indicated otherwise. Due to mass closures of government offices, businesses, schools, etc. due to the pandemic, all plates expiring between March 9, 2020 and December 1, 2020 remained valid due to lack of options for plate renewal during the COVID crisis.
The amendment to the law went into effect on March 27, 2020. By August 11, 2020, Officer Jacobs would have no credible excuse for not being aware of this alteration. And, as he demonstrated during his testimony, he did not have a credible excuse for his ignorance.
Officer Jacobs testified that he is familiar with H.B. 197 and that it concerns registration and licensing requirements. Officer Jacobs denied that, on or before August 11, 2020, he knew the implications of H.B. 197. Officer Jacobs stated that he was only given limited" direction on H.B. 197 and, to his knowledge, he was not given any information regarding the change in protocol concerning licenses or vehicle registrations. The only information he was provided was a document from the BMV [Bureau of Motor Vehicles], marked as Exhibit A. According to Officer Jacobs, he was provided the BMV memorandum around March 19, 2020. When asked if the document distinguishes between license and vehicle registration?," he responded, No - - yes - - I think? I believe it would distinguish - - I don't know." Officer Jacobs, interpreted [the BMV
memorandum] as the Highway Patrol will not issue tickets to drivers, and then furthermore it says, recommended that other law enforcement agencies in Ohio do the same thing.'" Officer Jacobs believed, based on the information provided, he was still able to essentially stop for expired vehicle registration."
Those sound like the hesitant words of someone who knew what the law alterations meant during the ongoing pandemic but chose to ignore them anyway. And, I mean, it's not like there's no judicial support for being willfully ignorant of the law... at least if you're a cop.
But the trial court didn't care more for Officer Jacobs' non-committal answers. And it hammered that point home by allowing Jacobs to hoist himself on his own shrug of a petard.
On cross-examination, Officer Jacobs acknowledged an important part of his job is knowing the laws of the State of Ohio and that, pursuant to H.B. 197, there were no expired registrations.
That being said (tacitly by the court and directly by the officer), the trial court still managed to deny the evidence suppression request despite this officer's clear violation of Ohio state law.
The appeals court doesn't like it at all. It cites the Supreme Court's permission slip for unforced officer-of-the-law legal errors (Heien), but refuses to extend this comfortably-sized blanket exception to this officer's actions. Underlying all of this is one thing the Supreme Court justices did manage to clarify in a decision that granted presumptive forgiveness to officers who did nothing but swear they thought the law had been violated: the law cited in the officer's defense of his alleged rights violations must be ambiguous."
This one isn't.
Upon review, H.B. 197 is unambiguous in its terms. The uncodified provision makes clear that an individual does not need to take any action to renew their registration if it expired between March 9, 2020 to December 1, 2020, and any registrations that were set to expire during that period remained valid under the law. [...]
The state argues that H.B. 197 is ambiguous because the words driver's" and vehicle" were not included in Section 11 of H.B. 197. We find this argument without merit. H.B. 197 defines [l]icense" as any * * * registration * * * that is issued or conferred by a state agency, a political subdivision of this state, or an official of a political subdivision of this state." (Emphasis added.) Based on the plain, everyday meaning of the word any," it is apparent that the General Assembly intended to provide a broad protection for citizens with various licenses or registrations that were set to expire during the period of emergency. [...] A vehicle registration issued by the Ohio Bureau of Motor Vehicles, a division of the Ohio Department of Public Safety, would fall squarely within the language of H.B. 197. This case is distinct from Heien on this point as there is no other provision in H.B. 197 that would create an alternative interpretation of registration" in this context.
That shuts down the state's attempt to salvage this unconstitutional stop. A couple of paragraphs later, the appeals court goes after the officer himself, using his own sworn affirmations of ignorance against him.
Arguendo, even if there was some ambiguity in the uncodified provision, Officer Jacobs' stop was objectively unreasonable as he had no knowledge of H.B. 197 or the change in law concerning vehicle registrations.
Hahahahahaaaaaaa! Imagine trying the but I didn't know (or even attempt to inform myself)" excuse in court just to be told that this isn't an acceptable excuse. The law is not something that only applies when it works out for cops. You can't have reasonable" suspicion for a traffic stop IF YOU DON'T EVEN KNOW THE DETAILS OF THE LAW YOU'RE APPLYING. In other words, ignorance of the law is no excuse... something cops and prosecutors are fond of telling us regular folks who accidentally break laws while harboring zero desire or intent to commit a criminal act.
The court also rejects the good faith" defense. As the court notes, no court in the state has forgiven a rights violation an officer committed based on their own mistake of law. In this case, Officer Jacobs wasn't relying on the instructions of supervisors, assertions from officers, or a judge's approval of a warrant request. He did this on his own and openly admitted he didn't know much about the law he cited to justify the traffic stop.
Away goes the evidence. And, although this error of law may seem minor (to some people), there's a greater point to be made.
It is our hope that the suppression of evidence in this case will result in appreciable deterrence of Fourth Amendment violations going forward. There will come a time sometime in the future when the General Assembly will have to enact an uncodified law to provide emergency relief to Ohioans. It is incumbent upon law enforcement, in turn, to make reasonable efforts to stay informed of changes in the law. Here, suppression of the evidence derived from the initial traffic stop would pay its way" by requiring law enforcement to make reasonable efforts to know the law they are duty bound to enforce.
That's how it should be. The courts need to keep the government in line just as much as criminal courts are instrumental to deterring criminal acts by citizens. Deterrence shouldn't be a one-way street.