By Ralph C. Buss

COURT RULES TO EXPAND POLICE SEARCH POWER

Ohio Justices Allow Looking for Drugs, Guns during Traffic Stops

The Ohio Supreme Court has ruled that police have the authority to search vehicles for illegal drugs or firearms during routine traffic stops if the driver behaves suspiciously. According to the Columbus Dispatch newspaper, in a 4-3 decision on March 28th, the state’s highest court found in the case of Blue Ash v. Kavanaugh that suburban Cincinnati-area police did not violate an Ohio man’s rights by having a police dog sniff his car while he was being detained to be issued tickets for expired license and registration.

When the dog alerted police to the odor of marijuana, a search of the car turned up a gun, which the defendant notified police of. Lawyers for the driver had argued that police had no reasonable suspicion to have the dog sniff the car, a violation of their client’s Fourth Amendment protection against unlawful search and seizure because police had no valid reason to suspect he was intoxicated or armed.

Lawyers for the city of Blue Ash, Ohio argued that the driver’s nervous behavior and long-expired driver's license constituted grounds to conduct further investigation.

The court’s decision opens the door for police throughout Ohio to detain drivers and impound vehicles for routine traffic violations, claims one of the defendant’s attorneys. "Essentially, the decision stands for the proposition that any citizen who’s stopped for anything other than a minor moving violation can now be detained and have their vehicle impounded and searched," attorney Paul M. Laufman told the Dispatch. "That’s scary."

Prosecuting Attorney for the City of Blue Ash, David P. Fornshell, said police did not overstep their bounds in searching and impounding the accused’s car.

The Ohio State Highway Patrol uses drug-sniffing dogs around the periphery of vehicles when there is reason to suspect drug use, said Lt. Tony Bradshaw, patrol spokesman. Bradshaw said that after the Oklahoma City bombing and Sept. 11 terrorist attack, the patrol has stressed using routine traffic stops to uncover criminal activity. "Those little indicators can lead to something more," he said.

An appeals court had ruled that Blue Ash police illegally searched and seized the defendant’s car because they had no grounds to detain him after issuing tickets for the expired license and registration. The Supreme Court decision reversed the appellate court ruling.

Justice Evelyn Lundberg Stratton, writing for the majority, said police acted properly in examining the car because they had planned to tow it and needed to inventory its contents. "This decision was based on the fact that defendant could not lawfully operate any vehicle because his driver’s license had been expired for nearly three months, and the vehicle itself could not be legally driven by any driver because the license plates had been expired for nearly three months," she wrote.

Chief Justice Thomas J. Moyer, Justice Maureen O’Connor and appeals Judge Donna J. Carr, who sat in for retired Justice Alice Robie Resnick, agreed with Stratton. Justices Terrence O’Donnell and Judith Lanzinger said the court should not have accepted the case.

Justice Paul E. Pfeifer, who also said the court should have rejected the appeal, argued that police overreacted to a minor violation. "In a simpler time, a person who forgot to renew his license or registration was given a warning and expected to renew the license or registration as soon as possible," he wrote. "But now, this court would have the state treat forgetful people as hardened criminals."

Legal observers noted that the ruling is in line with other state courts’ decisions to grant police broader authority to search for criminal violations when they stop someone for a traffic violation, and did not represent a major change in Ohio law.

"I think the potential for abuse has always been there," said Ric Simmons, an Ohio State University law professor and former assistant prosecutor in New York. "In this case you could make the argument that (police) took the powers they had and maybe used them too much."

While this ruling applies only to the particular set of facts presented in this case, it will surely be cited in future cases involving the duration and nature of traffic stops, and could contribute to a further erosion of our Constitutional protections.

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