The exclusionary rule and suppression hearings

Okeke testified about the backpack at the suppression hearing on September 1. Kwan asked him to describe the stop in his own words, and he did, carefully. Then Marchetti stood up. She asked him what description he had from dispatch. 'Male, tall, gray hoodie, on a bicycle,' he said. She asked whether he knew about anything on the back of the hoodie. He said no; he had seen the logo on the video afterward, but at the time he had not noticed it and dispatch had not mentioned it. She asked how far Crescent Street was from the pharmacy. 'About a kilometer.' She asked whether he believed, when he took the backpack off Brennan's shoulder, that he had grounds to arrest him. Okeke paused. 'I thought he might be the guy. I wanted to see what was in the bag before I decided.' Marchetti said, 'Thank you, Officer. Nothing further.'

Desjardins stops the recording of the testimony at that point and tells the class that the answer was honest, and that it decided the issue. This lesson explains why. It covers the constitutional limits on searches during an investigative detention, how courts decide whether to exclude evidence obtained in breach of constitutional rights, and how that analysis played out in the Bayview case.

Detention, frisks and the limits of a protective search

In Terry v. Ohio (1968), a case from Cleveland, the United States Supreme Court held that police may briefly stop a person based on reasonable suspicion that criminal activity is afoot, and may frisk the person's outer clothing for weapons if they reasonably believe the person is armed and dangerous. The frisk is limited to what is needed to find weapons. In Minnesota v. Dickerson (1993), the Court held that an officer may seize an object felt during a lawful frisk only if its identity as contraband is immediately apparent; manipulating or squeezing it to figure out what it is goes beyond the frisk. Courts have allowed officers to move a bag out of a suspect's reach, or to pat a bag for weapons when it is within reach, but opening and searching a bag requires more: probable cause to arrest, consent, or a warrant.

Okeke's pat-down of Brennan's clothing was lawful. He was alone with a detained suspect at night, near the scene of a break-in where a tool might have been used, and a brief pat-down for weapons was justified. He felt nothing in Brennan's clothing. He then took the backpack off Brennan's shoulder. If he had set it on the hood of the cruiser, out of Brennan's reach, nobody would have objected. Instead he unzipped it and looked inside, and he testified that he did so to see what was in it before deciding whether to arrest. That was a search for evidence, not a protective search.

Was there probable cause to arrest before the search?

Kwan argued that Okeke had grounds to arrest Brennan before he opened the bag, so the search was lawful as a search incident to arrest, even though the arrest was announced afterward. In the United States, probable cause is judged objectively, regardless of what the officer was thinking, and a search can come shortly before a formal arrest if probable cause already existed, as the Supreme Court held in Rawlings v. Kentucky (1980). Kwan argued that a tall man in a gray hoodie on a bicycle, a kilometer from a break-in at 2:30 in the morning, was enough. Judge Abernathy disagreed. She found that the description Okeke had was generic, that it did not include the logo, and that at that hour a man on a bicycle a kilometer away was suspicious but not probably the burglar. Okeke had reasonable suspicion, which justified the stop and the frisk, but not probable cause, which was needed to search the bag.

import math
# How specific was it to find a cyclist 1.1 km from the pharmacy 16 minutes after he left the lane?
left_lane, stopped = 13, 29                 # minutes after 02:00 (laundromat video, in-car video)
minutes = stopped - left_lane
distance_km = 1.1
speed_kmh = distance_km / (minutes / 60)
print("implied average speed to Crescent Street:", round(speed_kmh, 1), "km/h")
for v in (10, 15, 20):                      # ordinary cycling speeds
    r = v * minutes / 60
    print(f"at {v} km/h he could have been anywhere within {r:.1f} km (area about {math.pi * r * r:.0f} square km)")

implied average speed to Crescent Street: 4.1 km/h
at 10 km/h he could have been anywhere within 2.7 km (area about 22 square km)
at 15 km/h he could have been anywhere within 4.0 km (area about 50 square km)
at 20 km/h he could have been anywhere within 5.3 km (area about 89 square km)

The calculation shows why location alone did not amount to probable grounds. A cyclist leaving the lane at 02:13 could have been anywhere within a radius of several kilometers by 02:29, an area of dozens of square kilometers. Finding a man in a gray hoodie on a bicycle a kilometer away was consistent with his being the burglar, which is why it gave reasonable suspicion. But it was not specific enough on its own to make it probable, especially when the officer did not know about the logo that would have linked him much more strongly. Desjardins notes that the missing detail was the dispatcher's, not Okeke's: Mrs. Shaw had mentioned the logo in the first thirty seconds of her call, and it never made it into the broadcast. Lesson 10, on preparing for court, comes back to that.

The exclusionary rule and its exceptions

In Mapp v. Ohio (1961), the United States Supreme Court held that evidence obtained by an unconstitutional search is inadmissible in state courts. The rule extends to derivative evidence, called fruit of the poisonous tree, under Wong Sun v. United States (1963). The Court has created several exceptions, based on the idea that the rule exists to deter police misconduct and should apply only where that purpose is served. Under the good-faith exception from United States v. Leon (1984), evidence is not excluded if officers reasonably relied on a warrant later found invalid, or on binding precedent later overruled. Under the independent source doctrine, evidence is admissible if it was also obtained through a lawful source unconnected to the violation. Under inevitable discovery, from Nix v. Williams (1984), it is admissible if the prosecution proves it would inevitably have been discovered lawfully. Under attenuation, it is admissible if the connection to the violation is remote or interrupted, as in Utah v. Strieff (2016). The accused must also have standing: a personal privacy interest in the place searched.

The ruling on the backpack

Judge Abernathy granted the motion to suppress the pry bar, the gloves and the gum. Kwan argued inevitable discovery: if Okeke had set the bag aside and continued the investigation, he would have developed probable cause and searched it lawfully. The judge rejected this, finding that the prosecution had not proved that Okeke would have developed probable cause during the stop; without the bag's contents, he would most likely have taken Brennan's details and let him go. There was no warrant, so good faith did not apply, and nothing broke the connection between the search and the evidence found in it.

Marchetti also asked the court to exclude the fingerprint identification as derivative of the unlawful search, arguing that Brennan's fingerprints were taken at booking only because he had been arrested on the strength of the bag. The argument failed. Grace Liu had searched the latent print from the glass through the automated fingerprint identification system on March 16, and the candidate it produced, Brennan, was identified from known prints on file from his 2021 conviction, not from the booking prints. The fingerprint evidence had an independent source. Kwan also pointed out that, under United States v. Crews (1980), a person's identity and body are not themselves suppressible fruit of an unlawful arrest. The video, the 911 call, and Okeke's observation of Brennan and his hoodie before the bag was touched were also unaffected.

What exclusion cost

Because the bag's contents were excluded, Brennan was acquitted of possessing criminal tools under Revised Code 2923.24. The tools charge depended entirely on the pry bar. The break-in charge survived because the fingerprint, the video and the 911 call, taken together, proved identity beyond a reasonable doubt. Kwan tells the class that the margin was smaller than it should have been. If Liu had not found a usable print on the glass, the remaining evidence might have left a reasonable doubt, and Brennan would have been acquitted of everything. 'One unzipped bag nearly cost us the case,' he says. 'And if he had just put it on the hood and kept talking to dispatch for two more minutes, he would probably have heard about the logo and had all the grounds he needed.'

Lessons for officers

Desjardins draws three lessons from the ruling. First, know the limits of a protective search and stay inside them; if what you want is evidence, you need grounds and usually an arrest or a warrant. Second, when you are not sure whether you have grounds, the answer is to get more information, not to search to find out. A call to dispatch, a look at the video, or a few more minutes of lawful questioning during the stop often supplies what is missing. Third, if you make a mistake, say so. Okeke's honest answer on cross-examination made the ruling straightforward, but it also meant the judge believed everything else he said, including his description of the hoodie and the bicycle, which was part of the proof of identity. 'A judge who catches an officer shading the truth on one point starts wondering about every other point,' Kwan adds. 'Okeke lost a bag and kept his credibility. That was the right trade.'