The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bembry, Slip Opinion No. 2017-Ohio-8114.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-8114
THE STATE OF OHIO, APPELLEE, v. BEMBRY ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Bembry, Slip Opinion No. 2017-Ohio-8114.]
Criminal law—Once a warrant has been issued, the exclusion of evidence is not the
appropriate remedy under Article I, Section 14 of the Ohio Constitution for
a violation of the knock-and-announce statute, R.C. 2935.12.
(No. 2016-0238—Submitted March 1, 2017—Decided October 10, 2017.)
APPEAL from the Court of Appeals for Mahoning County, Nos. 14 MA 51 and
14 MA 52, 2015-Ohio-5598.
_________________
O’NEILL, J.
{¶ 1} In this appeal, we take up whether the exclusionary rule is the
appropriate remedy when police executing a valid search warrant violate the
requirements of the knock-and-announce statute, R.C. 2935.12. We conclude that
the exclusion of evidence is not the proper remedy for a violation of the knock-and-
SUPREME COURT OF OHIO
announce statute. We therefore affirm the judgment of the Seventh District Court
of Appeals and remand the cause to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Boardman police supervised two “controlled buys” in October 2012,
during which a confidential informant purchased heroin from appellant Harsimran
Singh near the apartment where Singh lived. Based upon the two incidents during
which Singh sold heroin and upon his prior arrest for a crime of drug abuse,
Boardman police sought and acquired a search warrant for Singh’s apartment.
{¶ 3} Singh lived with his girlfriend, appellant Sherri A. Bembry. Seven
Boardman police officers executed the warrant at her apartment at 8:30 a.m. on
November 2, 2012. Officers knocked several times. Thirty seconds after police
knocked on the door, someone in the apartment asked, “[W]ho is it?” An officer
replied, “Police. Open the door.”
{¶ 4} After more time went by, police officers forced the door open with a
battering ram. Detective Michael Dado claimed that the officers waited 15 seconds
to enter the apartment after announcing their presence. Singh claimed that the entry
was more immediate and that he was not sure that it was the police at his door.
Detective Dado admitted that the police never stated their purpose, which was to
execute a search warrant. Singh was taken from the apartment and thrown on the
ground.
{¶ 5} The search turned up contraband in the form of drugs, instruments of
drug trafficking, and a stolen weapon. Officers found marijuana, two digital scales
coated with drug residue in the bedroom, and eight bindles of heroin packaged for
sale in a dresser. They found a .38-caliber pistol that was registered in the Law
Enforcement Automated Data System database as a stolen weapon. And they found
a semiautomatic AK-47 and two loaded magazines under the mattress, although the
state ultimately charged no crimes regarding the rifle. After the search, officers
learned that three children under the age of seven lived in a nearby apartment.
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{¶ 6} A grand jury indicted Singh on one count of trafficking in heroin in
the vicinity of a juvenile, R.C. 2925.03(A)(2) and (C)(6)(b); one count of
possession of a controlled substance, R.C. 2925.11(A) and (C)(6)(a); and one count
of receiving a stolen firearm, R.C. 2913.51(A) and (C). Bembry was indicted on
one count of permitting drug abuse, R.C. 2925.13(B) and (C)(1) and (3).
{¶ 7} Bembry and Singh jointly moved to suppress all evidence obtained
during the search. They claimed that “the search itself did not comport with the
reasonableness requirement” of the Fourth Amendment to the United States
Constitution and Article I, Section 14 of the Ohio Constitution. The state responded
that the suppression of evidence is not the appropriate remedy when police
executing a search warrant fail to comply with the knock-and-announce statute,
R.C. 2935.12. The trial court granted the motion to suppress, finding that the
Boardman police had violated R.C. 2935.12 without any exigent circumstances
justifying the violation.
{¶ 8} The state appealed pursuant to R.C. 2945.67(A), raising the following
assignment of error: “ ‘The trial court should have denied defendants’ motion to
suppress, because the law is well-settled that the exclusionary rule does not apply
to violations of the knock-and-announce rule.’ ” 2015-Ohio-5598, ¶ 7. The court
of appeals explained that the facts of Bembry and Singh’s case were “virtually
identical” to the facts in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 156
L.Ed.2d 56 (2006). 2015-Ohio-5598, at ¶ 11. Applying the logic of Hudson, the
court of appeals reversed the judgment of the trial court, vacated the suppression
order, and remanded the matter. 2015-Ohio-5598, at ¶ 11-19.
{¶ 9} Bembry and Singh appealed, and we accepted jurisdiction over the
following proposition of law: “The exclusionary rule is the appropriate remedy
under Article I, Section 14 of the Ohio Constitution for a violation of R.C.
2935.12.” See 145 Ohio St.3d 1470, 2016-Ohio-3028, 49 N.E.3d 1313.
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DISCUSSION
{¶ 10} The court of appeals made no mention of the independent protection
provided by Article I, Section 14 of the Ohio Constitution. Generally, we will not
consider any issue “that was not raised in any way in the Court of Appeals and was
not considered or decided by that court.” Toledo v. Reasonover, 5 Ohio St.2d 22,
213 N.E.2d 179 (1965), paragraph two of the syllabus. We have justified this rule
in no uncertain terms:
Any other rule would relieve counsel from any duty or
responsibility to the court, and place the entire responsibility upon
the trial court to give faultless instructions upon every possible
feature of the case, thereby disregarding entirely the true relation of
court and counsel, which enjoins upon counsel the duty to exercise
diligence and to aid the court, rather than by silence mislead the
court into commission of error.
State v. Driscoll, 106 Ohio St. 33, 39, 138 N.E. 376 (1922). It is therefore
appropriate to address whether the foregoing proposition of law is properly before
us before reaching the merits.
{¶ 11} The record before us shows that the issue was raised at the trial level
and fully briefed at the appellate level. Bembry and Singh devoted much of their
brief below to this court’s decisions holding that in some circumstances, Article I,
Section 14 of the Ohio Constitution affords greater protection than the Fourth
Amendment; to the decisions of other state courts regarding suppression as a
remedy for knock-and-announce violations; and to the significance of the General
Assembly’s knock-and-announce enactment, R.C. 2935.12. They submitted their
brief more than a year before the court of appeals issued its judgment. Although
the decision of the court of appeals does not offer any discussion regarding Article
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January Term, 2017
I, Section 14 of the Ohio Constitution, it appears from the record that the court of
appeals considered and rejected the arguments asserted in Bembry and Singh’s only
brief below. For those reasons, we hold that Bembry and Singh adequately
preserved their proposition of law.
{¶ 12} We find further support from the Rules of Appellate Procedure,
which permit an appellee “who does not seek to change the judgment or order” of
a lower court to defend that judgment, even “on a ground other than that relied on
by the trial court,” without “[filing] a notice of cross appeal or [raising] a cross-
assignment of error.” App.R. 3(C)(2). Bembry and Singh therefore met their duty
to raise the issue to the court of appeals by briefing it there in detail. Accordingly,
we will proceed to the merits of this appeal presuming that the lower court’s
decision stands for the proposition that the United States Supreme Court’s decision
in Hudson governs the appropriate remedy for a violation of the knock-and-
announce principle under both the Fourth Amendment to the United States
Constitution and Article I, Section 14 of the Ohio Constitution.
{¶ 13} Turning to the proposition at hand, we must answer whether Ohio’s
independent provision of the “right of the people to be secure * * * against
unreasonable searches and seizures” in Ohio Constitution, Article I, Section 14
requires the suppression of evidence when police fail to comply with the knock-
and-announce principle while executing a valid search warrant. We hold that it
does not.
THE EXCLUSIONARY RULE
{¶ 14} The exclusionary rule is a fairly recent legal development, and its
rise is inextricably entwined with the incorporation of the Bill of Rights within the
Fourteenth Amendment. More than 100 years ago, the United States Supreme
Court recognized the federal suppression remedy for warrantless searches and
seizures, in Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652
(1914). The court held that a federal district court in Missouri committed error
5
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when it denied a criminal defendant’s pretrial application to return seized property
on the grounds that the property was taken from his home during a warrantless
search. Id.
{¶ 15} Prior to 1936, Ohio courts sometimes excluded evidence resulting
from search-and-seizure violations in criminal investigations, but application of the
exclusion remedy was inconsistent. See State v. Lindway, 131 Ohio St. 166, 172-
180, 2 N.E.2d 490 (1936). When this court squarely took up whether illegally
obtained evidence should be barred from trial, it noted that courts in the majority
of other states had “[held] such evidence admissible on the basis that if it is pertinent
to the main issue in the case, a court need not concern itself with the collateral issue
of how it was gotten.” Id. at 173. Joining the courts of those states, this court held
that the Fourth Amendment had “no application to the various states” and that “[i]n
a criminal case, evidence obtained by an unlawful search is not thereby rendered
inadmissible.” Id. at paragraphs one and four of the syllabus. This court later
reserved the exclusion remedy in Ohio courts to evidence produced by “ ‘ “brutal”
or “offensive” ’ physical force” violating the Fourteenth Amendment. State v.
Mapp, 170 Ohio St. 427, 430-431, 166 N.E.2d 387 (1960), rev’d sub nom. Mapp v.
Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), quoting Breithaupt v.
Abram, 352 U.S. 432, 436, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957).
{¶ 16} In deciding State v. Mapp, this court relied on Wolf v. Colorado, 338
U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). Justice Frankfurter wrote for the
court in Wolf that “[t]he notion that the “due process of law” guaranteed by the
Fourteenth Amendment is shorthand for the first eight amendments of the
Constitution and thereby incorporates them has been rejected by this Court again
and again, after impressive consideration. * * * The issue is closed.” Id. at 26. On
that basis, the United States Supreme Court held that the Fourth Amendment
exclusionary rule announced in Weeks required the exclusion of “evidence obtained
by an unreasonable search and seizure” from a federal court but that the Fourteenth
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Amendment did not require the same remedy for the same illegally obtained
evidence in “a prosecution in a State court for a State crime.” Id. at 34. On the one
hand, the court was able to recognize that “one’s privacy against arbitrary intrusion
by the police—which is at the core of the Fourth Amendment—is basic to a free
society” and “therefore implicit in ‘the concept of ordered liberty’ and as such
enforceable against the States through the Due Process Clause.” Id. at 27-28. But
on the other hand, the court was unwilling to choose a remedy on behalf of every
jurisdiction in our nation because the law in the various states had already
developed a number of mechanisms besides suppression to protect privacy in the
home. Id. at 28-33; id. at 30, fn. 1. As this court was not bound to impose in a state
case the specific remedy the Supreme Court determined is required by the Fourth
Amendment, it chose to retain the rule of Lindway that “evidence obtained by an
unlawful search and seizure is admissible in a criminal prosecution.” State v. Mapp
at 430.
{¶ 17} That ruling did not stand for long. In Mapp v. Ohio, the United
States Supreme Court overruled its decision in Wolf and reversed this court’s
decision in State v. Mapp. In overruling Wolf, the court adopted the reasoning of
the California Supreme Court that the “other remedies” developed by the states for
protection of the right to privacy “[had] been worthless and futile.” Mapp v. Ohio
at 652, citing People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955). Left with only
inadequate alternative remedies, the court held that the Fourth Amendment’s
exclusionary remedy must be “enforceable against the States through the Due
Process Clause of the Fourteenth [Amendment]” just the same as the Fourth
Amendment’s right to privacy against arbitrary intrusion by the police. Id. at 655.
The court remarked:
Were it otherwise, then just as without the Weeks rule the assurance
against unreasonable federal searches and seizures would be “a form
7
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of words”, valueless and undeserving of mention in a perpetual
charter of inestimable human liberties, so too, without that rule the
freedom from state invasions of privacy would be so ephemeral and
so neatly severed from its conceptual nexus with the freedom from
all brutish means of coercing evidence as not to merit this Court’s
high regard as a freedom “implicit in the concept of ordered liberty.”
Id. Put most simply, there can be no meaningful right to privacy in the home if the
right has no meaningful remedy. And so, through operation of the Fourteenth
Amendment, the Fourth Amendment applies in Ohio courts, it protects our right to
privacy, and it may require the suppression of evidence gained in violation of that
right.
{¶ 18} Although the exclusionary rule is undoubtedly available to remedy
a violation of the Fourth Amendment, it is an entirely separate question “[w]hether
the exclusionary sanction is appropriately imposed in a particular case.” United
States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The
exclusionary rule is “applicable only where its deterrence benefits outweigh its
‘substantial social costs.’ ” Pennsylvania Bd. of Probation & Parole v. Scott, 524
U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998), quoting Leon at 907. Those
social costs “sometimes include setting the guilty free and the dangerous at large.”
Hudson, 547 U.S. at 591, 126 S.Ct. 2159, 156 L.Ed.2d 56. At the very least,
exclusion prevents “consideration of reliable, probative evidence,” which
“undeniably detracts from the truthfinding process.” Scott at 364. And so, before
a court sanctions the exclusion of evidence, it must consider whether exclusion will
actually remedy the wrong and deter future wrongdoing.
THE KNOCK-AND-ANNOUNCE PRINCIPLE
{¶ 19} The knock-and-announce principle is much older than the
exclusionary rule, finding its roots in the ancient common law. Wilson v. Arkansas,
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January Term, 2017
514 U.S. 927, 932, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), fn. 2. The United
States Supreme Court has explained that by virtue of its place in the common law
before and during the founding era, the knock-and-announce principle “is an
element of the reasonableness inquiry under the Fourth Amendment.” Id. at 934.
In Ohio, the principle was more recently codified in R.C. 2935.12. State v. Oliver,
112 Ohio St.3d 447, 2007-Ohio-372, 860 N.E.2d 1002, ¶ 9. The principle requires
“police officers executing a search warrant at a residence to first knock on the door,
announce their purpose, and identify themselves before they forcibly enter the
home.”1 Id. at ¶ 9; accord Wilson at 931-932. Ohio’s codified version of the knock-
and-announce principle provides the same basic rule: police executing a warrant
must give notice of their presence and purpose and may enter a home only after
refusal of admission. R.C. 2935.12(A) (“when executing a search warrant, the
peace officer * * * executing the warrant * * * may break down an outer or inner
door or window of a dwelling house or other building, if, after notice of his intention
to * * * execute the warrant * * * he is refused admittance”). The knock-and-
announce principle becomes relevant only after a warrant has issued, for if a
warrant has not issued, a search or seizure inside the home is “presumptively
unreasonable” whether or not police give notice of their presence and purpose.
Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980);
see also State v. Carr, 2d Dist. Montgomery No. 19121, 2002-Ohio-4201, ¶ 13
(“The statute sets forth requirements to be followed when police are entering a
residence to execute a warrant. The police in this case were not executing a warrant.
Therefore, we conclude that R.C. 2935.12 is inapplicable to this case”).
{¶ 20} Despite the fact that the knock-and-announce principle is “an
element of the reasonableness inquiry under the Fourth Amendment,” Wilson at
1
Although there are exceptions to the knock-and-announce rule, they are not relevant here, because
the state has admitted that the officers did not comply with the rule while conducting their search.
See Hudson at 589-590.
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934, the United States Supreme Court held in Hudson that suppression is
categorically the wrong remedy when police armed with a valid warrant violate the
knock-and-announce principle. Hudson at 594, 599. The court gave two related
reasons why “the massive remedy of suppressing evidence of guilt is unjustified.”
Id. at 599.
{¶ 21} First, the knock-and-announce principle protects different interests
than those protected by the warrant requirement and vindicated by the suppression
remedy. Id. at 590-594. The warrant requirement protects the privacy of one’s
home and its contents, while the suppression of evidence found during a warrantless
search of the home appropriately restores the private nature of that evidence. Id. at
593. The knock-and-announce principle, however, protects “human life and limb”
placed in jeopardy by “supposed self-defense by the surprised resident,” assures
“the protection of property” that may be destroyed during a forced entry, and
safeguards “elements of privacy and dignity that can be destroyed by a sudden
entrance.” Id. at 594. Suppressing evidence found during a warranted search of a
home will not heal a physical injury, fix a door, or undo the shock of embarrassment
when police enter without notice of their presence and purpose.
{¶ 22} Second, suppression will not effectively deter knock-and-announce
violations. Id. at 594-596. There is minimal incentive to violate the knock-and-
announce principle in the first place, and the rule gives way in the name of safety,
investigative necessity, or futility. Id. at 596. There is a danger that the risk of
suppression would dissuade police from risking a knock-and-announce violation in
exigent circumstances, when they would have the benefit of an exception to the rule
anyway. Id. at 594-596.
ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION
{¶ 23} Shortly after the United States Supreme Court decided Hudson, we
heard oral argument in Oliver, 112 Ohio St.3d 447, 2007-Ohio-372, 860 N.E.2d
1002. Id. at ¶ 11. In Oliver, we considered the state’s appeal from an order granting
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January Term, 2017
a motion to suppress evidence on the basis of a knock-and-announce violation. Id.
at ¶ 6-10. We noted in our decision that “Hudson present[ed] a significant and
arguably new interpretation of the exclusionary rule,” and we remanded the matter
for the trial court to consider Hudson in the first instance. Id. at ¶ 13. In Oliver,
we did not comment on the question at issue in this matter: whether Article I,
Section 14 of the Ohio Constitution provides greater protection from knock-and-
announce violations than the Fourth Amendment as interpreted in Hudson. See id.
at ¶ 13.
{¶ 24} Now that the precise question has percolated through the lower
courts in the wake of Hudson, we take it up today. We are, of course, bound to
treat the exclusionary rule developed in Weeks and Mapp v. Ohio and the knock-
and-announce principle developed in Wilson and Hudson as “a floor below which
state court decisions may not fall.” Arnold v. Cleveland, 67 Ohio St.3d 35, 616
N.E.2d 163 (1993), paragraph one of the syllabus. We will generally “harmonize
our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth
Amendment, unless there are persuasive reasons to find otherwise.” (Emphasis
added.) State v. Robinette, 80 Ohio St.3d 234, 239, 685 N.E.2d 762 (1997). Given
“persuasive reasons” to find more expansive constitutional protections within the
Ohio Constitution, we are entitled to do so. Id; see also State v. Mole, 149 Ohio
St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 20 (plurality opinion).
{¶ 25} Bembry and Singh advance three arguments in support of more
expansive constitutional protection under Article I, Section 14 of the Ohio
Constitution than under the Fourth Amendment for those who suffer a knock-and-
announce violation. First, they offer several trial- and appellate-court decisions that
sanctioned suppression of evidence as a remedy for violating the knock-and-
announce principle and that predate the United States Supreme Court’s decision in
Wilson. See State v. Vuin, 89 Ohio Law Abs. 193, 198-199, 185 N.E.2d 506
(C.P.1962); State v. Furry, 31 Ohio App.2d 107, 112-113, 117, 286 N.E.2d 301
11
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(6th Dist.1971); State v. DeFiore, 64 Ohio App.2d 115, 119, 411 N.E.2d 837 (1st
Dist.1979); State v. Valentine, 74 Ohio App.3d 110, 113, 118, 598 N.E.2d 82 (4th
Dist.1991). Singh and Bembry argue that these decisions prove that Article I,
Section 14 of the Ohio Constitution required suppression as a remedy for a knock-
and-announce violation because the United States Supreme Court had not yet
formally recognized in Wilson that the knock-and-announce principle comprised
part of the Fourth Amendment reasonableness inquiry.
{¶ 26} We are never bound by prior decisions of inferior courts. But these
decisions fail even as persuasive authority for the argument advanced by Bembry
and Singh. Each of the decisions offered by Bembry and Singh expressly rely upon
the Fourth Amendment as the constitutional authority for suppressing evidence or
affirming an order suppressing evidence. Vuin at 195, 200; Furry at 111-112;
Defiore at 119-120; Valentine at 113-114. To the extent that any of these decisions
mention Article I, Section 14 of the Ohio Constitution, the courts said nothing about
whether that provision offers any greater protection than the Fourth Amendment.
Vuin at 195, 200.
{¶ 27} Second, Bembry and Singh point to our decisions that have extended
the protections of Article I, Section 14 of the Ohio Constitution beyond the
protections of the Fourth Amendment in cases where police have stopped or
arrested an individual for a minor misdemeanor without a warrant. State v. Jones,
88 Ohio St.3d 430, 727 N.E.2d 886 (2000); State v. Brown, 99 Ohio St.3d 323,
2003-Ohio-3931, 792 N.E.2d 175 (“Brown I”); State v. Brown, 143 Ohio St.3d 444,
2015-Ohio-2438, 39 N.E.3d 496 (“Brown II”). They argue that there is no reason
not to apply the reasoning used in those cases to the question presented in this one.
{¶ 28} We are not convinced. Jones, Brown I, and Brown II are all
distinguishable in an important way from the present case because they all turned
in part on the lack of a valid warrant. When police stop or arrest an individual
without a warrant, the individual has liberty and privacy interests in his or her
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person and property prior to the arrest. See Jones at 438-439. We held that the
arrests in Jones and Brown I were unreasonable in light of the less serious minor-
misdemeanor violations at issue, and we restored the privacy the police violated
during the arrests of the individuals in those cases by affirming orders to suppress
evidence. Jones at 440-441; Brown I at ¶ 25. In Brown II, we held that the state’s
interest in conducting a traffic stop for a minor misdemeanor outside of a police
officer’s territorial jurisdiction was “outweighed by the intrusion upon the
individual’s liberty and privacy that necessarily arises out of the stop.” (Emphasis
added.) Id. at ¶ 25. Accordingly we affirmed the order of the court of appeals
holding that suppression was required. Id. at ¶ 8, 26-27. In Jones, Brown I, and
Brown II, suppression was the appropriate remedy because there was a privacy
interest to vindicate. In the present case, a magistrate decided to subject the
contents of Bembry and Singh’s home to state scrutiny by issuing a warrant before
the search occurred. Because the warrant issued, Bembry and Singh’s privacy
interest in their apartment abated within the scope of the search warrant. It makes
no sense then to restore the privacy interest that existed prior to the issuance of the
warrant by suppressing evidence merely because police executed the valid warrant
in an unlawful manner.
{¶ 29} Finally, Bembry and Singh argue that pursuant to the discussion of
the “new federalism” in Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d
368, at ¶ 14-22, we should take the decisions of other state courts as persuasive
authority on the question at hand. The authorities Bembry and Singh offer are
simply not persuasive. Several of these decisions provide for suppression as a
remedy for a violation of another state’s knock-and-announce statute or a criminal
rule rather than a constitutional provision. State v. Cable, 51 So.3d 434, 441-443
(Fla.2010); Berumen v. State, 182 P.3d 635, 641-642 (Alaska 2008);
Commonwealth v. Chambers, 528 Pa. 403, 410, 598 A.2d 539 (1991). The plain
language of R.C. 2935.12 provides no remedy for its violation, and we cannot
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“brazenly ignore the unambiguous language of a statute” simply because another
state would do so under its own law. Jacobson v. Kaforey, 149 Ohio St.3d 398,
2016-Ohio-8434, 75 N.E.3d 203, ¶ 8. In still other states, the law in this area is as
undeveloped as it is in Ohio. E.g., State v. Jean-Paul, 2013-NMCA-032, 295 P.3d
1072, 1077 (“Our Supreme Court has not had the occasion since Hudson to
reconsider [State v. Attaway, 117 N.M. 141, 1994-NMSC-011, 870 P.2d 103] or
the application of the exclusionary rule for knock-and-announce violations under
the state constitution. * * * Therefore, Attaway controls, and the remedy for any
violation of [the New Mexico Constitution’s] knock-and-announce requirement
continues to be suppression of the evidence”).
{¶ 30} We find the United States Supreme Court’s reasoning in Hudson to
be far more persuasive than the arguments made by Bembry and Singh. The knock-
and-announce principle applies only when police execute a valid warrant. To
acquire a valid warrant, police must first convince a neutral magistrate that there is
probable cause to believe that a crime has been committed, sufficient to justify
pulling aside the veil of privacy from the contents of a home. It makes fundamental
sense that we would not restore privacy to the contents of a home to remedy the
violation of a rule that applies only after the interest in privacy in the home has been
overridden. To do so would be to make an end run around the authority of the
magistrate that issued the warrant. There is a basic conceptual disconnect between
the interests protected by the knock-and-announce principle and those vindicated
by the suppression remedy. For the foregoing reasons, we are persuaded to
“harmonize our interpretation of Section 14, Article I of the Ohio Constitution with
the Fourth Amendment,” Robinette, 80 Ohio St.3d at 239, 685 N.E.2d 762, with
regard to the appropriate remedy for a violation of the knock-and-announce
principle as codified in R.C. 2935.12.
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January Term, 2017
CONCLUSION
{¶ 31} Accordingly, we hold that once a warrant has been issued, the
exclusionary rule is not the appropriate remedy under Article I, Section 14 of the
Ohio Constitution for a violation of R.C. 2935.12.
Judgment affirmed
and cause remanded.
O’CONNOR, C.J., and KENNEDY and DEWINE, JJ., concur.
O’DONNELL and FISCHER, JJ., concur in judgment only.
FRENCH, J., dissents and would dismiss the cause as improvidently granted.
_________________
Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellee.
Louis M. Defabio, for appellants.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Peter T. Reed and Hannah C. Wilson, Deputy Solicitors, urging affirmance for
amicus curiae Ohio Attorney General Michael DeWine.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,
Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin
County Prosecutor Ron O’Brien.
Timothy Young, Ohio Public Defender, and Katherine Ross-Kinzie,
Assistant Public Defender, urging reversal for amicus curiae Ohio Public Defender.
_________________
15