{"id":10349,"date":"2014-02-08T11:18:21","date_gmt":"2014-02-08T10:29:10","guid":{"rendered":""},"modified":"2014-05-07T06:34:27","modified_gmt":"2014-05-07T11:34:27","slug":"en-us-50","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=10349","title":{"rendered":"OH8: No good faith exception under Herring after police on notice defendant was an identity theft victim"},"content":{"rendered":"

Defendant was arrested multiple times because he was an identity theft victim. The state could not repeatedly claim the good faith exception under Herring after they were on notice defendant was an identity theft victim after the first arrest. State v. Scott<\/a>, 2014-Ohio-392, 6 N.E.3d 101 (8th Dist. 2014):<\/p>\n

<\/p>\n

{\u00b623} In this matter, the evidence indicates that Scott was first arrested because of mistaken warrant information on December 19, 2012. Later that same day, the mistake was detected, and he was released from a county warrant and a fugitive warrant on “order of release from the Adult Parole Authority” signed by Detective Hall. Immediately following his release, Scott made a police report with Officer Maguth and explained that he had been the victim of identity fraud and erroneously arrested in connection with a warrant for Wiley. Officer Maguth confirmed Scott’s statement with the jailer, then faxed his report to the record management unit and financial crimes unit for follow-up. Scott was then rearrested on the same mistaken information on January 17, 2013, despite his claims that there had been another mistake. According to Gerren, the fugitive warrant for Wiley continued to list Scott as an alias until Gerren removed it from the Adult Parole Authority database on February 19, 2013, after speaking with Scott’s trial counsel.<\/p>\n

{\u00b624} In undertaking our analysis of this matter, we must first note that this matter involves two separate warrantless arrests of Scott. With regard to the first arrest on December 19, 2012, by application of Leon and Herring, this court would apply the good faith exception to the exclusionary rule in connection with any evidence obtained at the time of the first arrest because of the erroneous information linking Scott to the warrant for Wiley. With regard to the second arrest from the same erroneous information, however, we are compelled to reach a different result. The record clearly establishes that despite Scott’s December 19, 2012 release from jail upon the discovery of the erroneous information, his meeting with the police, and the police report identifying him as a victim of identity fraud, the warrant information was never withdrawn or corrected. The same error continued to link him to Wiley, and the error remained uncorrected until defense counsel was able to obtain a correction, which was well after the second arrest.<\/p>\n

{\u00b625} Therefore, this court concludes that the department was on notice of the erroneous information for almost a month prior to the second arrest. Further, because the erroneous information remained uncorrected until after the second arrest, this matter involves the “reckless, or grossly negligent conduct, or * * * recurring or systemic negligence” condemned in Herring. Moreover, neither this court nor the parties can locate a single case authorizing application of the exclusionary rule to a situation involving two separate and successive erroneous arrests based upon the same erroneous information where the police are on notice of the error immediately after the first arrest. In our view, application of the good faith exception cannot be repeatedly invoked to immunize unlawful arrests from the application of the exclusionary rule.<\/p>\n

{\u00b626} Under the unique circumstances presented herein, we conclude that there has been grossly reckless conduct, as well as recurring, sustained, and systemic negligence that the good faith exception to the exclusionary rule is not applicable and the evidence obtained in connection with the January 17, 2013 arrest must be suppressed.<\/p><\/blockquote>\n

So, analogous to the dog bite cases: Your dog gets one bite. After that, you’re on notice it’s a dangerous animal.<\/p>\n","protected":false},"excerpt":{"rendered":"

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