State v. Brown
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[Cite as State v. Brown, 2001-Ohio-7073.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellant C.A. CASE NO. 18972 : v. : T.C. NO. 01 CR 1167 DALI JACQUES BROWN : Defendant-Appellee : .......... OPINION Rendered on the 28th day of December, 2001. .......... ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant ARVIN S. MILLER, Atty. Reg. No. 0016355, Assistant Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee .......... WOLFF, P. J. Dali Jacques Brown was arrested for jaywalking, a minor misdemeanor, and subjected to a custodial search of his person. The arresting officer found crack cocaine in Brown s pocket, and Brown was subsequently indicted for possession of crack cocaine. Brown moved to suppress the crack cocaine on the authority of State v. Jones 2 (2000), 88 Ohio St.3d 430. The trial court overruled the motion on the authority of Atwater v. City of Lago Vista (2001), 121 S.Ct. 1536 but, upon Brown s motion for reconsideration, sustained the motion on the authority of Jones. (None of the exceptions to the citation only rule of R.C. 2935.26(A) apply). The State appeals, advancing two assignments of error which involve the same issue and which we consider together: 1. THE TRIAL COURT ERRED WHEN IT FOUND THAT AN ARREST MADE FOR COMMISSION OF A MINOR MISDEMEANOR RISES TO THE LEVEL OF A CONSTITUTIONAL VIOLATION. 2. BECAUSE DEFENDANT S ARREST FOR COMMISSION OF A MINOR MISDEMEANOR CONSTITUTED A STATUTORY VIOLATION ONLY, THE TRIAL COURT ERRED BY APPLYING THE EXCLUSIONARY RULE TO SUPPRESS THE EVIDENCE. Brown correctly identifies the issue in this appeal. IS OHIO SUPREME COURT DECISION STATE V. JONES (2000), 88 Ohio St.3d 430, STILL CONTROLLING PRECEDENT IN THE STATE OF OHIO? Jones holds as follows: 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. Essentially, the State argues that Jones is no longer controlling precedent because (1) Ohio s state constitutional search and seizure jurisprudence has traditionally tracked federal constitutional search and seizure jurisprudence and (2) 3 Atwater holds that an arrest for a minor misdemeanor - unless conducted in an extraordinary manner, unusually harmful to privacy or physical interests - does not violate the Fourth Amendment. We reject the State s argument for the following reasons: While the State is correct that Ohio state constitutional search and seizure jurisprudence generally tracks its federal counterpart and affords no greater protection than the federal jurisprudence - see State v. Robinette (1997), 80 Ohio St.3d 234, 238-9 - it is also clear that Ohio s state constitutional search and seizure jurisprudence need not track the federal jurisprudence so long as it affords no less protection than Fourth Amendment jurisprudence. Indeed, our supreme court has said as much in State v. Brown (1992), 63 Ohio St.3d 349, 352. If Belton [New York v. Belton (1981), 453 U.S. 454] does stand for the proposition that a police officer may conduct a detailed search of an automobile solely because he has arrested one of its occupants, on any charge, we decline to adopt its rule. As the United States Supreme Court stated in California v. Greenwood (1988), 486 U.S. 35, 43, 108 S.Ct. 1625, 1630, 100 L.Ed.2d 30, 39: Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution. As can be seen from the Jones syllabus, quoted above, the decision rested on federal and state constitutional grounds. We are far from convinced that the supreme court would overrule Jones, a unanimous decision, on the strength of Atwater, a 5-4 decision. Furthermore, we are not at liberty to depart from viable state supreme court 4 precedent until that court overrules that precedent. Schlachet v. Cleveland Clinic Found. (1995), 104 Ohio App.3d 160, 168. Finally, having been affirmed by the supreme court in Jones, this court - even if at liberty to do so - would reject Atwater, believing that the citation only rule of R.C. 2935.26(A) does implicate Section 14, Article I of the Ohio Constitution. The assignments of error are overruled. The order appealed from will be affirmed. .......... BROGAN, J. and FAIN, J., concur. Copies mailed to: Andrew T. French Arvin S. Miller Hon. Michael L. Tucker
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