Read the analysis of the oral argument here.

On October 27, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Kennedy M. Burroughs, 2020-1304.  At issue in this case is whether law enforcement officers can search a partially open backpack, found in plain view inside an individual’s home, without a search warrant.  This case will be argued at the University of Akron School of Law.

Case Background

On January 27, 2019, Marion Police Department officers executed a warrant for Kennedy Burrough’s arrest at her home for misdemeanor obstruction of justice.  After officers announced their presence, Burroughs quickly shut and locked the door and was seen through a window picking up plastic baggies and hurrying to the back of the house.  When officers entered the house, they could smell marijuana and saw various contraband around the house. During a search of the home, officers found a partially open backpack in plain view with a plastic baggie hanging out of it in the bathroom. Later, a lieutenant, checking the house for weapons, opened the backpack and found marijuana inside of it.  Burroughs was subsequently indicted on one count of possession of marijuana in violation of R.C. 2925.11(A)(C)(3), a fifth-degree felony. 

At trial, Burroughs filed a motion to suppress evidence, and alleged that law enforcement unlawfully searched the backpack they found in her home.  Marion County Common Pleas Court Judge Jason Warner found that the police were lawfully permitted to open the backpack since it was both found in plain view and officers had probable cause to believe that it contained contraband. Burroughs pled no contest, was found guilty, and sentenced to two years of community control.  Burroughs appealed.

The Appeal

In a decision written by Judge William Zimmerman, joined by Judge Stephen Shaw, the Third District affirmed the trial court’s decision.  Judge John Willamowski dissented. 

The appeals court majority recognized that while the plain view exception may support the warrantless seizure of a container believed to hold contraband, any subsequent search of the contents either requires a search warrant or another exception to the warrant requirement, here the single-purpose container exception to the Fourth Amendment. 

A single purpose container is a container that allows its contents to be inferred from its outward appearance and therefore no reasonable expectation of privacy could be derived from it. Such a container proclaims its own contents. This decision should be made by considering the facts and circumstances under which the container was found.  Here, when considering the circumstances under which the bag was discovered coupled with the knowledge and experience of law enforcement officers, the criminal nature of the backpack was immediately apparent, and the search was authorized under the single purpose container exception. 

Judge Willamowski dissented by reasoning that the majority failed to consider that it wasn’t the search of the baggies, but rather the search of the backpack that was the question since the backpack was the closed container.  Judge Willamowski reasoned that while the bookbag was in plain view, its contents were not, nor were the contents readily apparent. Therefore, the Marion Police officers properly seized the backpack as suspicious but should have then obtained a warrant to open and search it. 

Key Statutes and Precedent

U.S. Const. Amend. IV– (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search 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.)

Smith v. Maryland, 442 U.S. 735 (1979) (Whether an individual can expect to enjoy the protections of the Fourth Amendment depends on (1) whether or not the individual exhibited a subjective expectation of privacy; and (2) whether that expectation is one that society is prepared to recognize as reasonable.)

U.S. v. Yoon, 398 F.3d 802 (6th Cir. 2005) (“Courts have imputed collective knowledge about criminal investigations to law enforcement officials.”)

State v. Johnson, 2017-Ohio-5708 (7th Dist.) (“It is well established that an individual has a heightened expectation of privacy in the contents of a closed container.”)

State v. Parsons, 2017-Ohio-1315 (3rd Dist.)  (“it’s well established that law enforcement officers don’t need a search warrant to seize incriminating evidence found in a place where they have a right to be under the plain-view exception to the search warrant requirement.”)

Votes to Accept the Case

Yes: Justices Kennedy, Fischer, Donnelly, and Stewart

No: Chief Justice O’Connor, Justices DeWine and Brunner

Burrough’s Proposition of Law Accepted for Review

When law enforcement officers seek to search a lawfully seized backpack, purse, or similar item in a person’s home, they must obtain a search warrant issued by a neutral, detached magistrate, if officer-safety concerns or exigent circumstances are not present. 

State’s Proposed Counter Proposition of Law

When law enforcement officers are lawfully in a room and properly seize a partially closed backpack protruding from which is a plastic baggie of the sort generally used to contain drugs, those officers may lawfully search the backpack in question if, in the view of the totality of the circumstances surrounding its discovery, including officer’s training and experience, those officers have probable cause to believe that the bag’s contents are a foregone conclusion such that the bag can be searched. 

Burrough’s Argument

Throughout the case there have been three different rationales presented as to why the warrantless search of Burrough’s backpack did not violate her Fourth Amendment rights.  First, the Marion Police Lieutenant who searched the backpack testified that he searched the bag to make sure it didn’t contain weapons.  This was rejected by the trial court.  Second, the trial court determined that the Lieutenant was lawfully permitted to open the backpack because it was found in plain view and he had probable cause to presume that it contained contraband.  The Third District didn’t rely on this finding for its decision.  Third, the Third District determined that law enforcement was lawfully permitted to search the bag under the single-purpose container exception to the warrant requirement. 

The Third District erroneously came to its conclusion as to single-purpose containers by failing to consider the fact that unless a container’s contents can be said to be in plain view, those contents are protected by the Fourth Amendment. What’s more, the Third District failed to realize that a backpack, unlike a labeled pill bottle, is the quintessential multiple-purpose container, since it’s used to hold a variety of personal items. It should also be noted that the Third District reached its erroneous conclusion despite correctly identifying guidance from the Ohio and United States Supreme Courts holding that law enforcement officers may have the right to seize a container in plain view, but that doesn’t automatically give them the right to search that container.   Therefore, here, even if the seizure of the bag was lawful, the warrantless search of it was unjustifiable. 

All the testimony given by Marion Police Department officers indicates that the officers didn’t know what was in the bag; they only suspected it contained marijuana.  This points to the conclusion that the criminal nature of the bag wasn’t a foregone conclusion.  The dissent was correct in asserting that the Fourth Amendment permits the “the seizure of the property, pending issuance of a warrant to examine its contents[.]”.  Because the trial court rejected the Lieutenant’s officer-safety rationale, there were no other exigent circumstances that would have permitted the warrantless search of Burrough’s backpack in her home.  The Third District’s decision should be reversed. 

State’s Argument

The Supreme Court has enacted a two-part test when considering Fourth Amendment privacy issues: (1) Has the individual exhibited an actual expectation of privacy? (2) Is that expectation reasonable and justifiable?  If the state wishes to intrude upon an individual’s privacy, then the state must have a warrant based on probable cause.  The Sixth Circuit has defined probable cause as a “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.”

The U.S. Supreme Court has recognized instances where the plain-view exception to the warrant requirement has applied to searches as well as seizures.  These are instances where the contents of a container in question are a foregone conclusion because the contents can be inferred from the outward appearance of the container.  Containers with contents that are a foregone conclusion are typically those that are transparent, not closed, or are distinctively configured to announce its contents.  Such containers are permitted to be searched under the plain view doctrine because, the Fourth Amendment doesn’t “draw the blinds the occupant could have drawn but did not.”  Because Ms. Burroughs left the backpack in plain view and partially open, she did not have a subjective expectation of privacy in the contents of the backpack.

Contrary to the finding by the court of appeals, there is not a split in how jurisdictions apply the single purpose container doctrine, because courts typically consider a law enforcement officer’s knowledge and experience when contemplating the totality of the circumstances surrounding the discovery of a container and its contents.  In a case regarding the hearsay testimony of an officer, the U.S.Supreme Court implicitly declared that the totality of the circumstances must be considered when determining which containers are single purpose containers  whose contents are a foregone conclusion. 

The totality of the circumstances approach is the most logical one for the search as well as the seizure. Marion Police Department officers had probable cause to believe that evidence would be destroyed, so entering the residence without a warrant was proper.  They witnessed Burroughs rushing to the back of the house with baggies that were common repositories for narcotics.  Using their experience and considering the surrounding factors, officers searched the bathroom to determine if evidence had in fact been destroyed.  There, they found a backpack, partially open with a baggie hanging out of it.  Considering what the officers saw and smelled while serving the warrant and their past experiences in law enforcement, the officers determined that the contents of the backpack were a foregone conclusion.  Having found this backpack in plain view, it would be illogical to hold that the police could use the totality of the circumstances for every part of this investigative experience except the search of the bag.  A determination of the contents of a container are rarely made in a contextual vacuum, and courts in multiple states (including Ohio), have permitted officers to rely on their experiences when making determinations on what a container holds. The Third District’s decision should be affirmed. 

Student Contributor: James Gravely