S.D.Ohio: Attempted search incident well after arrest when duffle bag was away from def was not “incident to arrest”; govt overspinned the facts

The officer lacked exigency for a warrantless entry to arrest. Defendant put his duffle bag outside a second story window on the roof to conceal it. It was not abandoned because the public didn’t have access to it. All he could ascertain was that others said it was defendant’s bag, and they had no apparent authority to consent. “In short, this Court cannot find good-faith where an officer knowingly enters a person’s property without consent (first the fenced-in backyard and then the actual house), takes a duffel bag and effectively seizes it without permission, searches it without any authorization, and does all of this based on nothing more than a convoluted 911 dispatch and an anecdotal history of finding drugs on people’s roofs. Officer Harrison did not make a reasonable mistake with the information he was given because he had no relevant information to start with and he knew it. But rather than gathering the relevant information first, he chose to shortcut without it, despite the constitutional implications of his conduct. And a violation of the Fourth Amendment for no reason at all is, in this Court’s opinion, as worthy of deterrence as a violation based on ill-intent. The Court finds the search was objectively unreasonable and the deficiencies were sufficiently reckless, if not ‘deliberate,’ to require deterrence and warrant suppression. See Herring, 555 U.S. at 144.” Inevitable discovery does not apply. “Defendant was arrested prior to Officer Harrison’s search of the duffel bag. Thus, it is quite literally impossible for a search incident to arrest to have been inevitable because the arrest had already occurred. Thus, the Government’s argument is not only a legal misconception but an absolute impossibility.” As to the government’s spin on the testimony: “It is solely the Government that continues to take enormous liberties in its representations.” United States v. Tapia, 2022 U.S. Dist. LEXIS 83964 (S.D.Ohio May 10, 2022).