Multi-Officer ‘Search’ Challenge Before the Supreme Court
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Whether a multi-officer team can conduct warrantless, non-exigent searches without violating the Fourth Amendment is a question pending before the U.S. Supreme Court.
In Ohio, the state’s Supreme Court held officers acted constitutionally where one police officer warrantlessly opened the door of a car and another officer looked inside for contraband. The driver whose car was searched is now asking the U.S. Supreme Court to reverse the Ohio Supreme Court decision.
Jackie Jackson was driving alone on a residential Cincinnati street, when to police officers stopped his car. As the two officers approached the car, six more arrived on bicycles. One officer advised Jackson that they stopped him because the tint of his windows was too dark.
As Jackson was looking through his phone for his proof of insurance, one officer opened the car door and ordered Jackson to step out of the car. Jackson complied and another officer walked him to the back of the car.
While police conducted a pat-down search of Jackson at the back of the car, one of the officers walked to the still-open driver’s-side door. He pulled out a flashlight and leaned into the car, shining the flashlight into the gap between the seat and the door. There, the officer saw a marijuana cigarette on the floor beneath the seat.
The discovery of the marijuana cigarette led the police to search the entire car. In a basket of laundry in the back seat, police found a pistol. Jackson was charged with three offenses based on his possession of the pistol.
At trial, Jackson moved to suppress the pistol evidence on the ground that police obtained it by a search in violation of the Fourth Amendment. The trial court denied the motion and Jackson pleaded no contest to the charges against him. The Ohio Court of Appeals affirmed the trial court, as did the Ohio Supreme Court.
The Ohio Supreme Court explained that under the Fourth Amendment, a “search” takes place when, with the intent to obtain information, the police either physically intrude in a constitutionally protected area or interfere with a person’s reasonable expectation of privacy. The court then individually analyzed the conduct of the two officers that led to the discovery of the pistol in Jackson’s car.
Because “nothing in the record indicates that the officer opened the door for any reason other than to get Jackson out of the car,” the Ohio Supreme Court held the first officer did not perform a Fourth Amendment search. The court then concluded the second officer also did not conduct such a search because he did not commit a physical trespass and looked only at what was within plain view inside the car.
Jackson’s legal team, led by the UCLA School of Law’s Supreme Court Clinic, has now petitioned the U.S. Supreme Court for a writ of certiorari to reverse the Ohio Supreme Court’s decision. In their petition, Jackson’s attorneys argue “[a] search is still a search even if different parts of the search are carried out by different officers.”
If the Ohio Supreme Court’s decision is allowed to stand, Jackson’s attorneys say that police will be allowed to game the Fourth Amendment. They say, “each department now needs only to designated one officer as the ‘door opener,’ an employee instructed merely to open doors without looking inside for contraband, and the police will have carte balance to look inside any car or any home.”
The State of Ohio waived its right to respond to Jackson’s petition and the National Association of Criminal Defense Lawyers filed a brief supporting the petition. The U.S. Supreme Court will now decide whether to request Ohio’s response to the petition and then whether to accept it. For the Court to take up the petition, four justices must vote to accept the petition for full briefing and a decision. FEDagent will report on further developments.
You can read the full petition to the U.S. Supreme Court in Jackson v. Ohio here: https://www.supremecourt.gov/DocketPDF/22/22-978/263842/20230418124859426_Filed%20-%20amicus%20brief%20-%2022-978%20State%20v%20Jackson.pdf.
For over forty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.