Update:  The merit decision in this case was handed down on January 17, 2012. Read the analysis of the decision here. 

In State v. Gould, to be argued before the Ohio Supreme Court on Sept. 7, the state will argue that the exclusionary rule should only apply in circumstances involving “deliberate, reckless or grossly negligent” police conduct or in cases of “recurring or systemic negligence.”  This line of argument follows recent U.S. Supreme Court decisions cutting back on the application of the exclusionary rule to police misconduct.  The state is appealing from the suppression of evidence of child pornography found on the defendant’s computer hard drive.

In recent years, the U.S. Supreme Court has been cutting back on the application of the exclusionary rule to police misconduct.  In 2007 in Hudson v. Michigan the Court ruled that even though the police had admittedly violated the knock and announce rule in seizing drugs and guns from Hudson’s house, the exclusionary rule did not need to be applied to suppress the evidence.  Majority opinion author Scalia wrote the connection between the improper entry and the later discovery of the evidence was too attenuated.  He also wrote that the benefit of the exclusionary rule—deterring future police misconduct—was far outweighed by the costs of suppression to society, which he described as giving many defendants a “get-out-of-jail-free card.”

In 2009, in Herring v. United States, the defendant was arrested based on a warrant from a different county.  The warrant had been recalled, but that information did not make it into the computer database.  A clerk from the arresting county sent the warrant to law enforcement, which relied on it to arrest Herring. As in Hudson, the parties agreed that there had been a Fourth Amendment violation, but once again, the majority refused to invoke the exclusionary rule.

In Herring, a 5-4 Court drew a distinction between an inadvertent police mistake, which should not warrant exclusion of evidence, and deliberate police misconduct, which should.   Chief Justice Roberts, the author of the Herring opinion, would limit application of the exclusionary rule only to police conduct that is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price that is paid by the justice system.”

In the Gould case, the prosecution is relying on the Herring decision.

In September 2006, Dennis Gould’s mother, Sharon Easterwood, brought a hard drive to the Toledo Police. Easterwood informed Detective Gina Lester that Gould had given her the hard drive and that he had instructed Easterwood not to allow anyone else to have it. Easterwood told the detective that she suspected the hard drive contained child pornography and that she believed Gould had abandoned the hard drive.  After the detective tried unsuccessfully for months to contact Gould, Gould’s mother gave her consent to search the hard drive, which was found to contain child pornography.  Easterwood later changed her story about how she came to possess the hard drive.

At a suppression hearing, the trial court refused to suppress evidence of the materials found on the hard drive, finding that Gould had abandoned the hard drive and had no expectation of privacy in it.  Gould was convicted of a number of sexual and child pornography offenses.

On appeal, the 6th District Court of Appeals found that, in light of Easterwood’s testimony, the state had not met its burden of proving Gould’s clear intent to abandon the hard drive. In addition, it explained that Detective Lester could have easily gathered more information about how Easterwood had obtained the hard drive, and should have sought a search warrant.

In the sole proposition of law accepted for review by the Ohio Supreme Court, the state argues that the exclusionary rule should only apply in circumstances involving “deliberate, reckless or grossly negligent” police conduct or in cases of “recurring or systemic negligence”—a direct quote from Chief Justice Roberts in State v. Herring. The state argues that the Ohio Supreme Court has yet to interpret and apply Herring, and that this case provides the perfect opportunity. Parroting the U.S. Supreme Court, the state argues that “application of the exclusionary rule may occur only when the benefit of deterring future comparable conduct by law enforcement outweighs the high cost to society in allowing a guilty party to go free.”

Gould responds in his merit brief that Herring did not establish a new test for courts to apply. Instead, it merely synthesized prior case law and was limited to the facts of that case. Herring addressed “isolated negligence attenuated from the Fourth Amendment violation resulting from that error.” The negligent conduct leading to the search was done by a completely different police department from the one that actually conducted the search, which meant that the deterrent objectives of the exclusionary rule would not have much effect. In distinguishing Herring, Gould argues that in his case the police misconduct was not attenuated—the misconduct was the unlawful search, and the officer who engaged in the misconduct also conducted the unlawful search. Thus, he contends, the deterrent objectives of the exclusionary rule would have a material effect here.

Gould also argues that in spite of Herring’s stringent requirements, the police misconduct here rises to the level of “deliberate, reckless or grossly negligent,” because Detective Lester relied on her own conclusions regarding the abandoned status of Gould’s hard drive rather than deferring to a judicial determination. In addition, Detective Lester did not use all available means of contacting Gould to obtain his consent.

Student contributor: Greg Kendall