Update: On November 18, 2021 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here

“You are saying a third party can’t just hand the government its own property?”

Justice Fischer to counsel for LaRosa

“Why wasn’t it reasonable to secure a warrant for the seizure of the items that belonged to LaRosa?”

Justice Stewart, to the assistant county prosecutor

On March 3, 2021, the Supreme Court of Ohio heard oral argument in State of Ohio v. Jacob R. LaRosa, 2020-0337. At issue in this case is whether the seizure of personal items from a suspect’s hospital room without a warrant violates the Fourth and Fourteenth Amendments of the United States Constitution and Art. I, Section 14 of the Ohio Constitution.

Case Background

On March 31, 2015, 15-year-old Jacob LaRosa was released from a juvenile detention center after serving time for a probation violation. Later that day, he began drinking excessively with his friends. Purportedly telling his friends he was going to get more alcohol, LaRosa entered the home of 94-year-old Marie Belcastro, who lived directly across the street from LaRosa. Mrs. Belcastro was later found dead, beaten savagely, and naked from the waist down.

Before Mrs. Belcastro was discovered, LaRosa arrived home, covered in blood and incoherent. He claimed that he had been attacked by other juveniles, and his mother called the police. An officer and paramedics arrived. As LaRosa was being loaded into the ambulance, the responding officer, Officer Mobley, was waved down by one of Mrs. Belcastro’s daughters, who had noticed that her mother’s house had been broken into. Officer Mobley and the daughter discovered Mrs. Belcastro’s body.

At the hospital, LaRosa was examined, and no discernible injuries were found to explain the blood on his person. His blood alcohol level was nearly three times the legal limit for an adult. While LaRosa was in the hospital, another officer collected LaRosa’s clothing from the hospital room to take into evidence. A nurse also gave the officer a bloody washcloth that had been used to clean LaRosa up.

On April 9, 2015, LaRosa was charged in a complaint of delinquency with four counts, including breaking into Mrs. Belcastro’s home, attempting to rape her, and murdering her. The State filed a motion to transfer the case from the juvenile division to the common pleas court, seeking to try LaRosa as an adult. After an amenability hearing, the juvenile court judge found that LaRosa was not amenable to care or rehabilitation, and therefore should be tried as an adult.

Following the transfer to adult court, LaRosa was indicted by a grand jury on four counts: aggravated murder, aggravated burglary, aggravated robbery, and attempted rape. LaRosa filed a motion to suppress various evidence obtained during the investigation, including fingernail scrapings conducted at the hospital, his clothing taken from the hospital room, and a washcloth used to wipe his groin at the hospital. The trial court denied the motion and found that LaRosa had no expectation of privacy in his hospital room or in the items removed after he “voluntarily presented there purporting to be the victim of an assault.” LaRosa entered a plea of no-contest and was sentenced to life in prison without parole for aggravated murder, and a combined 30 years for the other charges, to be served consecutively.

The Appeal

On the issue pertinent to the Supreme Court appeal, LaRosa argued that the trial court had failed to prohibit items seized by the police from his hospital room from being presented at trial, and this had violated his Fourth and Fourteenth Amendment rights under the U.S. Constitution, and his rights under Article I, Section 14 of the Ohio Constitution. In a unanimous decision  the Eleventh District affirmed the trial court’s judgment.

The appeals court held that because LaRosa’s socks, underwear and the washcloth were seized by the nurse, a private person, and not by a police officer, they were not unlawfully seized because there was no governmental action. Additionally, LaRosa had no reasonable expectation of privacy because he came to the hospital purporting to be a victim, and no expectation of privacy in the washcloth, which was the property of the hospital.

As for the fingernail scrapings, the court held that the words “hand swabs,” as written in the warrant, encompasses “fingernail scrapings.” Because the warrant authorized the police to search and retrieve evidence from LaRosa’s hands, this reasonably included his fingernails.

Read the oral argument preview of the case here.

Key Statutes and Precedent

U.S. Constitution, Amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)

US. Constitution, Amend. XIV (“. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

Ohio Constitution, Art. I, Sec. 14. (“The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.”)

Marron v. United States, 275 U.S. 192 (1927) (“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”)

*Katz v. United States, 389 U.S. 347 (1967) (“Searches conducted outside the judicial process, without prior approval by a Judge or Magistrate, are per se unreasonable under the Fourth Amendment subject to only a few specifically established exceptions.”)

*Athens v. Wolf, 38 Ohio St. 2d 237 (1974) (The State has the burden of proving by a preponderance of the evidence that the defendant’s property was not seized illegally.)

*Thompson v. Louisiana, 469 U.S. 17 (1984) (For a search to be valid, it must fall within one of the narrow and specifically delineated exceptions to the warrant requirement.)

Leech v. Ohio State Univ. Hosp., 579 N.E.2d 320 (Ct. of Cl. 1989) (The removal of personal items and placement into a bag at the hospital creates a bailment relationship between the hospital and patient.)

Minnesota v. Olson, 495 U.S. 91 (1990) (The Fourth Amendment is implicated when an accused person “has a legitimate expectation of privacy in the invaded place,” and this “subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.”)

*State v. Drain, Franklin No. 95APA03-351 (10th Dist. 1995) (There is no expectation of privacy that persists in “clothing or personal effects cut away from a purported robbery victim in a hospital emergency room to which he has voluntarily presented himself.”)

*Ferguson v. City of Charleston, 532 U.S. 67 (2001) (Unless the patient consents to the search, a state hospital’s testing of maternity patients for drug use using their urine is an unreasonable search and in violation of the Fourth Amendment.)

*People v. Yaniak, 190 Misc.2d 84 (N.Y.Co.Ct.2001) (A patient retains an expectation of privacy in clothing he or she entrusts to the hospital for safekeeping.)

State v. Dalpiaz, 2002-Ohio-7346 (11th Dist.) (The standard for sufficiency of the description in a search warrant is that “the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.”)

Burneson v. Ohio State Racing Comm., 2004-Ohio-3313 (10th Dist.) (“[I]f a person has no reasonable expectation of privacy in the property searched, then the Fourth Amendment protections do not apply.” Seizure by a private person is not prohibited by the Fourth Amendment because “[t]he Fourth Amendment only provides protection against governmental action.”)

*State v. Funk, 2008-Ohio-4086 (4th Dist.) (People “reasonably expect increased privacy during hospitalization.”)

*State v. Jackson, 2020-Ohio-2677 (12th Dist.) (Even if a hospital patient retains a possessory interest in his or her clothing, the warrantless seizure of the clothing is reasonable under the Fourth Amendment because the officer was lawfully in the room and the clothing was in plain view.)

*Cited by counsel at oral argument.

LaRosa’s Proposition of Law Accepted for Review

The seizure of personal items from a hospital room, without consent and without warrant, violates the Fourth and Fourteenth Amendments to the United States Constitution and Ohio Const., Art. I §14.

At Oral Argument

Arguing Counsel

Lynn Maro, Maro & Schoenike, Co., Youngstown, for Appellant Jacob LaRosa

Ashleigh Musick, Assistant Prosecuting Attorney, Trumbull County, for Appellee State of Ohio

LaRosa’s Argument

Officer Biddlestone was sent to the hospital by his captain to secure Jacob LaRosa and to seize evidence, and that is what he did. The record is clear that Jacob’s pants, shoes, and shirt were removed at his house, and obtained pursuant to a search warrant for the house.  Jacob arrived at the hospital only in his socks and underwear. When Officer Biddlestone got to the hospital, he removed Jacob’s mother and his lawyer from the room, handcuffed Jacob to the bed, and directed the nurse to place Jacob’s socks and underwear into a bag and give the bag to him.  This evidence was used by the prosecutor to support a finding of guilt on the no contest plea Jacob entered. The seizure of these items was unlawful. The hospital violated Jacob’s privacy rights when it turned these items, including a washcloth used to clean Jacob up, over to the police.

Without a warrant, Officer Biddlestone did not have the right to go into Jacob’s area in the emergency room with the purpose of seizing evidence. Thus, the officer wasn’t lawfully entering that room to begin with. He went in there with the intent to seize evidence, not just to engage with Jacob and talk with him.

Bailment law is clear that hospitals have an obligation to maintain the patient’s things for that patient. The washcloth became Jacob’s the moment that his blood and urine were placed on it. The hospital has no possessory interest in things that contain his bodily fluids. The washcloth that was seized contained his bodily fluids.

The hospital does not have the right to turn over syringes, vials, catheters, or anything else to the police just because the police come in and ask for them. The police need to get a warrant. Here, they could have secured the area and made sure things weren’t destroyed and followed the proper procedures to get a warrant.  While they did get a warrant for the hand swabs, it was based on the evidence they improperly seized.

The United States Supreme Court has made clear that there is a heightened expectation of privacy in certain areas. That heightened expectation of privacy is paramount in a hospital, no matter who you are and no matter what you go to the hospital for. A highly intoxicated 15-year-old boy certainly doesn’t know his rights and isn’t coherent enough to assert any rights.

As for the plain view argument, the state never raised that argument below, and thus has waived it. Furthermore, plain view doesn’t apply here when the officer has no right to be there in the first place. The officer should have followed the appropriate protocol in getting a warrant, securing the area and waiting for the warrant.

If the Court finds that there was a privacy interest that was violated, then the officer is not there lawfully.  The privacy interest belongs to Jacob, and the hospital cannot waive that.

Finally, the error in this case was not harmless. There was definitely a reasonable possibility that this evidence contributed to the conviction.

State’s Argument

There is overwhelming evidence of the defendant’s guilt in this case. Many of the claims that have been raised by opposing counsel were never raised below. The defense fails to discuss what relief they are seeking here other than the blanket statement that these items should be suppressed.

The seizure here was not done by the government or by government action. The Fourth Amendment is not implicated.  But even if this Court were to find that there was a reasonable expectation of privacy, which the state does not concede, it was reasonable to seize these items in this instance. And finally, because the evidence was so overwhelming, any error should be deemed harmless beyond a reasonable doubt.

Officer Biddlestone was at the hospital to secure a homicide suspect. He put LaRosa into custody and cuffed him. When the officer arrived, LaRosa had already been disrobed for treatment. The officer did not remove LaRosa’s clothes or ask for them to be removed and given to him. This was property that was removed for treatment purposes. These were blood-covered boxers and socks, which were in plain view. The officer was safeguarding the evidence, securing it, so it was not lost or destroyed. These items were taken before the warrants were issued for the other property—the swabs of his hands and groin area and for the bloody clothing at his house.

The state concedes plain view was not discussed in the trial court entry, nor was bailment argued below by the defense.  What the trial court found here, relying on Drain, is that LaRosa had no reasonable expectation of privacy when he purports to be a victim,and that is what the appellate court found when reviewing the record in this case. They noted that the seizure was not done by government action and did not implicate the Fourth Amendment.

This Court could find there is a reasonable expectation of privacy and that the underwear should have been suppressed, but exclude the socks because the socks weren’t even mentioned as a factual basis for the plea. The underwear is the only piece of evidence that would have been suppressed. And it is disingenuous to think there wouldn’t have been a plea in this case.

There are multiple pieces of evidence that say this defendant was covered in blood. From the time he was discovered by his mother and transported to the ER, every person who came in contact with him said he was covered in blood. The seizure of the boxer shorts and the socks had nothing to do with the basis for securing a warrant for his hand to test for blood or DNA material, or what was taken from his house.

What Was On Their Minds

A whole lot! Questions were many and lengthy.

Expectation of Privacy in ER

What is the foundation for the defendant’s privacy interest, asked Chief Justice O’Connor?

Since we are dealing with a seizure, why does the privacy interest matter, asked Justice DeWine? Isn’t seizure law about ownership, not expectations of privacy? He added that the Fourth Amendment deals with searches and seizures and they have different standards, adding that the government can’t take one’s property whether that person has an expectation of privacy in it or not.

Whose Property Was Whose

Wasn’t the washcloth the hospital’s property, asked Justice Fischer? What’s the argument for keeping that out?

At what point did the washcloth become Mr. LaRosa’s property, asked Chief Justice O’Connor? Does he have to give the hospital permission to wash the linens that he is laying on? Or the clothing they put on him? The hospital gowns? When they take that away from him, does he have the right to object and say, no leave that here, it’s mine now? Where’s the possessory interest in the hospital’s property that is being used? Does any syringe or needle or instrument that was used to treat him becomes his?

The washcloth was not used at the officer’s direction, noted Justice Brunner, adding that Mr. LaRosa accidentally urinated on himself and the nurse took the washcloth and cleaned him up.  She commented that she had never seen a hospital bill for a washcloth and couldn’t see how that washcloth would ever be assigned to him as property. Do we know when the hospital actually tendered that washcloth, she asked?

LaRosa’s Presence in the ER

Mr. LaRosa was never admitted to the hospital, noted Justice Brunner. He was in a curtained, cordoned off area of the ER, with much in plain sight. Is there a difference that he had voluntarily presented himself to the hospital and wasn’t ever fully admitted?

Did Mr. LaRosa have the right to tell the officer to leave, asked Justice Stewart? If so, would he have had to leave? Did that happen? Do we have the officer and the defendant in the room by themselves? 

Officer’s Presence in the ER/ Seizure of Clothing and Washcloth

By whom was the officer directed to seize evidence, asked Justice Stewart? Did anyone ask him to leave? She added that the superior officer’s directive to seize evidence didn’t abrogate any seizure law by which the officer was required to operate. Isn’t the essence of this case whether the seizure of the items taken from the hospital was lawful? Why wasn’t it reasonable to secure a warrant for the seizure of the items that belonged to Mr. LaRosa? Even though he was in the ER, weren’t those items still his? How were the items in danger of being lost or destroyed when the officer was there to secure Mr. LaRosa as a suspect in a crime? So why wasn’t a warrant obtained for his personal items?

Would the officer have been able to go the hospital and ask questions if Mr. LaRosa was willing to speak to him, assuming he had been Mirandized, asked Justice Donnelly? If the officer had the right to be there, wasn’t all this evidence in plain sight?

Why wouldn’t the officer’s entering the room be lawful, asked Chief Justice O’Connor, adding that he was a detective who was working on a murder case and was ordered to secure the defendant, the suspect. Where does it leave the defendant if only the hospital had the right to exclude the officer?

Isn’t it only the hospital which has standing to object to any unlawful entry, asked Justice DeWine? And isn’t the standard here whether or not the defendant had a possessory interest in the property? This was a seizure, and so the issue is whether or not he maintained ownership of the property, he added.   

Where is any testimony in the record that Officer Biddlestone sees blood on the socks or boxers and that is why he asked the nurse to give those to him, asked Justice Kennedy, adding that she had read the testimony and did not see that. Is the hospital without authority to turn over an item that contains a suspect’s bodily fluid without a warrant? By the time the nurse cleaned him up, wasn’t the defendant already handcuffed to the bed?

In this case the bodily fluid was not extracted from the defendant, was it, asked Justice Fischer, adding that for all the hospital knew, LaRosa was a victim who urinated on himself and they washed him with a cloth.

The Warrants that Were Obtained

Wasn’t there a warrant for the hand swabs, asked Chief Justice O’Connor? Was the basis for the other warrants flawed? Was the warrant to take the hand swabs based on the clothing? If the socks and underwear are excluded, was there still a basis for securing the warrant for the hand swabs?

Justice Brunner noted that LaRosa was taken to the hospital between 5 and 6pm and the search warrant was obtained around 10:40pm, and that he became a murder suspect somewhere in between. She noted that it seemed unlikely that the washcloth was the motivation for getting the warrant since there was a 4-5 hour period until the warrant was obtained.  

Plain View

Weren’t the items the officer was asked to collect in plain view, asked Justice Stewart?

Justice Kennedy asked a very long question about plain view. She noted, from her reading of the record, that Patrol Officer Biddlestone was called and told to go the hospital. The individual he was sent to see had already been identified as a murder suspect. According to his own testimony he goes in, he finds long hairs, he takes that evidence out, he then gets his mic pack, puts his body camera on, and goes back into the hospital. At that time the defendant was still clothed on a gurney, but the clothes were later removed. Officer Biddlestone told the hospital to give him the clothing. Now he knows LaRosa is a suspect. There’s no warrant for these items and the officer knows that. He never testifies as to seeing blood on these items and the state never raises plain view below. How does the state get to plain view based on the officer’s own testimony?

Overwhelming Evidence of Guilt

If the state claims the evidence of guilt is overwhelming, why is the state even discussing it, asked Justice Stewart?

 Harmless Error

Why is this not harmless error, asked Justice Donnelly? If these items were taken out and the suppression was granted based on all the other evidence would there likely have been a conviction for murder?

How it Looks from the Bleachers

To Professor Emerita Bettman

This was one of the liveliest, most intense arguments I’ve seen in quite awhile. The justices were at times dissatisfied with answers from both sides and really pressed with lengthy quotes from the record, Justice Kennedy particularly so. Ultimately, the Court may well treat the seizure of the socks and underwear differently from the washcloth and hand swab for the fingernail scrapings. And harmless error looms, if the court excludes the clothing.  

While I think LaRosa made the better argument, I’m going to call this for the state, by a slim margin. I think the state’s best argument is that Officer Biddlestone was lawfully in the hospital room and the items were in plain view, but the state didn’t argue plain view below, although it probably wishes it had.  But Justice Kennedy’s question suggested the record indicated the clothing wasn’t bloody, which would complicate that line of argument.  The basis for the court of appeals decision on this point was that any seizure was done by the nurse, a private person, and not by the police, and therefore the Fourth Amendment was not implicated. The appeals court also held the washcloth was never LaRosa’s property and he had no reasonable expectation of privacy in hospital property. So, those avenues are available for a majority decision. The prosecutor insisted there was otherwise overwhelming evidence of guilt in the case. The state may need it.  

What surprised me the most from the argument was learning that LaRosa’s lawyer was at the hospital and agreed to leave his client alone in the room with the officer. Justice Stewart expressed her surprise at that as well. Justice Stewart seemed the most skeptical of the state’s position.

To Student Contributor Liam McMillin

This oral argument, perhaps more than any of the ones I have observed so far, was all over the place. Each justice seemed to have his or her own individual take on this case, and all seven were keen to ask questions. Aside from Justice Kennedy, all the justices had questions for LaRosa’s attorney, Lynn Maro. Ms. Maro provided an impassioned argument for her client, but at times seemed to be on an entirely different page than the justices. This perhaps was most apparent in her exchange with Justice DeWine, who wanted Ms. Maro to address the difference between the analysis required for “search” and that for “seizure.” In typical DeWine-fashion, he did not mince his words: “you seem to be confused,” he told Ms. Maro, and I believe that he was correct.

For the State, Ashleigh Musick started off on what I personally thought was a strange strategic decision, and I was joined in my confusion by Justice Stewart. Ms. Musick, from her opening words, emphasized that there is “no question of [LaRosa’s] guilt.” While this argument is important, and needed to be included, I was surprised that this was Ms. Musick’s opener; it would seem to be more at home later in the argument, specifically talking about the basis of the warrant. Justice Stewart cut in early to ask if Ms. Musick was conceding the constitutional violations altogether, which is not a good foot to start on.

Amongst all of the various discussions, the real question is how the court will rule. In theory, the legal question at hand here is whether or not the officer’s conduct falls into one of the provided exceptions to warrantless seizure. As for the washcloth, I think it is clear that the Court will find that LaRosa had no possessory interest in the cloth, despite his bodily fluids on it, and therefore the seizure was lawful because it was not LaRosa’s to begin with, and the bodily fluid was on his person, not in his person (distinguishing this case from Ferguson). As for the clothing, while it was not raised below (according to Ms. Maro), I have a hunch that the Court will find that the officer was legally in LaRosa’s room, and the clothing was in plain view, thus falling into one of the exceptions specified for warrantless seizure.

An interesting question addressed only briefly, but I believe of more importance, is in line with what Ms. Musick began her oral argument with: does LaRosa’s plea of no contest change the nature/analysis of the error? With a trial, it is much clearer that evidence that should not have been included due to an unconstitutional search/seizure would influence the factfinder in ways that likely can be verified, is it fair to apply the same analysis when a defendant pleads guilty or no contest?