OH2: Gant applies to suppression hearing held before it was decided

Gant applied to a suppression hearing held before it was decided under the general rules of Fourth Amendment retroactivity. Here, there were no findings of fact, but the record is clear, and the search was unreasonable. State v. Gilbert, 2009 Ohio 5528, 184 Ohio App. 3d 642 (2d Dist. 2009):

[*P33] In the case before us, the search is not justified under either branch of the standard established in Gant. When the search occurred, multiple police officers were at the scene, and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle’s passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. The driver of the car had been arrested for driving under suspension, and the car would have contained no evidence relevant to that crime. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued. Rather than resulting from a quest for relevant evidence of the crime that caused the stop, the search was the type of search incident to an arrest that officers have routinely conducted under the authority of Belton. As the United States Supreme Court stressed in Gant:

[*P34] “It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment-the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.” Gant, 129 S.Ct. 1710, 1720, 173 L. Ed. 2d 485.

[*P35] Accordingly, under the new standard established in Gant, the police were not justified in conducting a warrantless search of the automobile in which Gilbert was a passenger. Since the search was illegal, any evidence discovered thereafter as a result of the search, including the cocaine and marijuana, and Gilbert’s statements, should have been suppressed as the “‘fruit of the poisonous tree.'” Wong Sun v. U.S. (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.

Having tags to the wrong vehicle is reasonable suspicion for a stop, and here it led to a plain view. State v. King, 2009 Ohio 5530, 2009 Ohio App. LEXIS 4658 (2d Dist. October 16, 2009).*

Officers acted reasonably in entering an apartment that they were told by the landlord had been vacated. They seized a bullet. State v. Green, 2009 Ohio 5529, 2009 Ohio App. LEXIS 4655 (2d Dist. October 16, 2009).*