Defendant here was referred to as “having a hoarding issue” because of a growing collection of junk in his yard and up against his house that was flammable and attractive to rodents. He was prosecuted for the exterior junk and given several months to clean it up. But he didn’t. The city came back and alleged in an administrative search warrant that they reasonably suspected the inside was as bad as the exterior, and the administrative warrant issued. The later warrant was not stale because the conditions continued to exist. The city had no duty to search the interior months earlier in the initial prosecution. State v. Griesbaum, 2017-Ohio-8363, 2017 Ohio App. LEXIS 4737 (11th Dist. Oct. 30, 2017):
[*P9] Melanie Shubitowski, Assistant Zoning Manager, testified that in 2015 a criminal complaint was filed against Griesbaum on account of his failure to remove “a large amount of furniture, debris, appliances, trash, just all around the perimeter of the home,” where Griesbaum lived with his wife and seventeen-year-old son/stepson. The general condition of the property was the same in March 2016 as it was in December 2015. Shubitowski submitted an affidavit in support of an administrative warrant wherein she stated that the condition of the property constituted a public nuisance as the “accumulation of garbage, litter, rubbish * * * creates a danger to health, life, limb or property”; “depreciat[es] the enjoyment and use of properties in the immediate vicinity of the residence”; and raised safety concerns “because much of this accumulated material is flammable and combustible and is susceptible to attracting rodents, vermin and the like.” She further stated that, based on the exterior condition of the premises, she “anticipate[d] that the interior of the property also contain[ed] an accumulation of trash, junk, rubbish.”
. . .
[*P23] Griesbaum’s arguments fail to convince that the search of his property was unreasonable. There is no dispute that the exterior condition of his premises in March 2016 gave probable cause to examine their interior condition. State v. Young, 6th Dist. Erie No. E-13-011, 2015-Ohio-398, ¶ 46 (“[p]robable cause must be determined as of the date the warrant is requested”). As Griesbaum’s counsel acknowledged at the suppression hearing: “And had there not been a complaint filed [in November 2015], had the City just driven by on March 4th or March 3rd and said, this is a problem. We need to take care of it right now. We wouldn’t be here. Because it would have been reasonable at that time under the circumstances.”
[*P24] There is no authority of which this court is aware that would require the City to obtain a search warrant for the interior of the premises at the time it cited Griesbaum for their exterior condition, or that would grant immunity to him for their interior condition merely because he had until April to remedy their exterior condition. The fact remains that the condition of the exterior of his premises justified an inspection of the interior at the time the warrant issued.
[*P25] Nor does the reason for the City’s delay in obtaining the warrant, whether it be frustration or lack of diligence or malice, render the search unreasonable. It is well-established that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.'” (Citation omitted.) Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). While we acknowledge Griesbaum’s conviction that the objective circumstances of this case do not justify the administrative search, we do not share that conviction. The fact that the City could have obtained the warrant in November 2015 did not render it unreasonable to do so in March 2016 where it was nonetheless based on probable cause of an individualized suspicion of wrongdoing.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"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." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)