OH2: Officer’s good faith mistake, if it was one, that def possessed a concealed weapon (a long sword), bars application of the exclusionary rule [court erroneously shifts burden]

Police got a call about a man wielding a sword, and they stopped defendant. There was probable cause for him possessing a concealed long sword [how?]. Even if the officer was wrong, it wasn’t really wrong. “Short contends that Officer Armstrong did not make a mistake based on good faith, but fails to indicate why this is so. In light of the above discussion, Officer Armstrong’s conduct, even if mistaken, would not fit within the requirements for excluding the evidence.” State v. Short, 2018-Ohio-3202, 2018 Ohio App. LEXIS 3460 (2d Dist. Aug. 10, 2018).

Comment: And the good faith exception, originally intended only for searches under a warrant in Leon,* applies to warrantless searches in Ohio based on good faith mistakes of fact which the defendant cannot show are unreasonable; not the state show are reasonable. Thus, the Fourth Amendment burden of proof for proving reasonableness of warrantless searches in Ohio is placed on the defendant, contrary to all Fourth Amendment precedent. This case could and should have been decided for the state without even getting into the Fourth Amendment, but the court’s zeal to gut the exclusionary rule is palpable and drives the court to bad law. This needs to go up. Not that the Ohio Supreme Court would do anything about it ….**

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* United States v. Leon, 468 U.S. 897, 924 (1984): “The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect.” And remember that Herring was based on a mistaken arrest warrant. Both had a judicial imprimatur.
** When I was a kid I used to hear about “close” only applies to horseshoes and hand grenades. McGraw-Hill Dictionary of American Idioms and Phrasal Verbs (2002). It also applies to the exclusionary rule.

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