“Here the container may not have announced its contents by the shape of the container, but didn’t it announce its contents by what was sticking out of the container?”

Justice DeWine to counsel for Burroughs

“In your view what was the single purpose of the backpack?”

Justice Fischer, to the prosecuting attorney 

On October 27, 2021, the Supreme Court of Ohio heard 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 was argued at the University of Akron School of Law. Chief Justice O’Connor was not physically present for the argument but viewed it on streaming and will participate in conference. Justice Kennedy presided in her absence.

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 house, officers found a partially open backpack in plain view in the bathroom with a plastic baggie hanging out of it. Later, a lieutenant, checking the house for weapons, opened the backpack and found marijuana inside 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. The trial court 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.

Read the oral argument preview here.

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 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.)

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.)

*Arkansas v. Sanders, 442 U.S. 753 (1979) (footnote)(“some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”)

*United States v. Ross, 456 U.S. 798 (1982) (Distinguishes between searches of a home and searches of a car.)

*United States v. Jacobsen, 466 U.S. 109 (1984) (There’s a difference between when a seizure is appropriate and when opening a closed container found in a home is appropriate.)

*State v. Halczyszak, 25 Ohio St.3d (1986) (when seizing an item, officers are permitted to use their collective knowledge and training to draw conclusions about the situation they are confronting and make determinations about the item.)

*United States v. Corral970 F. 2d 719 (10th Cir. 1992)(affirming the search of an item first seized in plain view because the officers had knowledge of the container’s contents.)

U.S. v. Yoon398 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.”)

*Cited by counsel at argument.

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. 

At Oral Argument

Arguing Counsel

Craig M. Jaquith, Assistant State Public Defender, Columbus, for Appellant Kennedy M. Burroughs

Raymond A. Grogan, Marion County Prosecutor, for Appellee State of Ohio

Burroughs’ Argument

The state has the burden of proving that the search of Kennedy Burrough’s backpack in her own home without a warrant met one of the established exceptions to the Fourth Amendment’s warrant requirement. No such exception exists in this case.

The state advanced three different rationales in this case to attempt to justify the warrantless search that occurred. None applies. The first rationale was advanced by the lieutenant who searched the bag without a warrant. He claimed that he searched the bag for officer safety purposes. Both lower courts correctly rejected that rationale. The second rationale was provided by the trial court which found that because there was probable cause to seize the bag, there was also probable cause to search the bag. The appellate court correctly distinguished between the propriety of the seizure and the propriety of the search and rejected the trial court’s rationale.

In upholding the search, the Third District majority relied on the single purpose exception to the warrant requirement. That exception, found in a footnote in U.S. v. Sanders, is that if a container can be deemed a single purpose container, then it may be searched without a warrant after it is seized. After Sanders, the U.S. Supreme Court clarified that the opposite is true. If the container does not announce its content by the design of the container, then it may not be searched without a warrant. The example given in the Sanders opinion is a gun case. It’s very unlikely that someone would store something other than a gun in a gun case. So, if a person is subject to a weapon under a disability provision and that person has a gun case the police can open that case without a warrant.

Ms. Burrough’s backpack did not announce its contents by its outward appearance. The officer who saw Ms. Burroughs collecting baggies at the front of her house did not testify that he saw what was in the baggies, or that he saw her put the baggies in the backpack.

Both Lieutenant Elliott and Officer Coburn testified that the baggies could have been empty. Officer Coburn also testified that he did not know who zipped up the bag, who the bag belonged to, how long the bag had been in the bathroom, or what was in the bag. During cross examination at the suppression hearing, he said he suspected that there were drugs in the bag. Even if he had probable cause, he could seize the bag, but he couldn’t search the bag.

A backpack, like a purse or a suitcase, can contain any number of items. To deem it a single purpose container under the narrow exception created by the footnote in Arkansas v. Sanders is simply improper. That exception was intended to cover situations only where the container itself announces its contents so that it could be likened to a situation where the evidence is in plain view. Here the contraband was clearly not in plain view. It was not discovered until the backpack was opened without a warrant.

A fourth approach must be followed in this case. The seizure of the backpack was permissible because of Officer Coburn’s observation at the front of the house and because he observed marijuana and marijuana shake in plain view in Ms. Burrough’s bedroom. That was enough to give the police the right to seize the backpack. And Ms. Burroughs is not contesting Officer Coburn’s after-the-fact protective sweep of the home. As the dissenting appellate judge notes, there’s a sharp distinction between when seizure is appropriate and when opening a closed container found in a home is appropriate.

In sum, the book bag could have been lawfully seized, but then a judge or magistrate had to issue a warrant for the book bag to be searched. Because a warrant was not sought, let alone obtained, the search does not fall under a recognized exception to the Fourth amendment’s warrant requirement.

State’s Argument

This Court should find that the officers of the Marion Police Department were authorized to search the book bag under the single purpose container exception to the warrant requirement. When a container is not closed, when it is transparent, or, as in this case, when its particular configuration proclaims its contents, the container supports no reasonable expectation of privacy, and the contents can then be said to be in plain view.

Lieutenant Elliott testified at the suppression hearing that the home had an odor of marijuana, and that there was marijuana shake in the home as well. In addition to observing the shake and the odor, he also observed marijuana edibles around the house, and he testified that as a result of that he believed there were drugs in the book bag.

The officers had sufficient reason to open the backpack, given the collective knowledge of the officers at the scene, coupled with their training, knowledge and experience, and coupled with the baggies that were literally sticking out of the backpack. The single purpose of the backpack was to hold the baggies of drugs that Officer Coburn had just observed Ms. Burroughs take and then run to the back of the room.

In contrast to this situation, if this bag had been a closed backpack as was the case in State v. Johnson, where Johnson was arrested with a black backpack which he was known to carry, the 7th district stated correctly that the backpack did not reveal its contents, and as a result the exception would not apply.

Ultimately in this case marijuana was found in the backpack. Officer Coburn testified that he recognized the backpack as something people store drugs in. By virtue of the baggies sticking out of the backpack the backpack was not closed. Ms. Burroughs does not enjoy a reasonable expectation of privacy for items that are in plain view. And Lieutenant Elliot testified that while he may have been searching for weapons, he also recognized that there was an odor of marijuana in the air, and marijuana shake and marijuana edibles around the house, so he believed there were drugs in the bag.

Looking collectively at what the officers knew at the time, coupled with the distinctive condition of the backpack with the baggie sticking out of it, the officers were able to draw foregone conclusions about what was in that backpack, and it was clear there were drugs in the backpack. The state is relying on the officers’ education, training and experience coupled with their other observations. And here, the criminal nature of the backpack’s contents was immediately apparent.

By virtue of all of the facts and circumstances in this case-observing Ms. Burroughs grabbing the baggies, running to the back of the house, the odor of marijuana in the house, marijuana shake and edibles  in the house, and the fact that the baggies she was observed grabbing and bringing to the back of the house were now sticking out of the backpack in the back bathroom, the state had the authority to search that bag.

What Was On Their Minds

The Single Purpose Container Exception to the Warrant Requirement  

Here the container may not have announced its contents by the shape of the container, but didn’t it announce its contents by what was sticking out of the container, asked Justice DeWine? Isn’t the state’s argument about the container really part of the plain view doctrine? Under that doctrine the criminal nature of the object has to be immediately apparent. Was the criminal nature of the package’s contents here immediately apparent? He added the way plain view worked in the context of the single purpose container exception is when a container could only have one purpose the criminal nature is immediately apparent and because it can only have one purpose then the police can open it because they already know what is in there. Wasn’t the criminal nature of the backpack immediately apparent here? Ms. Burroughs just happened to have another backpack full of baggies lying around? This was just the sandwich backpack? The other baggies were for drugs?

What was the single purpose of the backpack, asked Justice Fischer? He added that backpacks could contain books or lunch. Isn’t the state relying on 5 to 10 rivets in the zipper of a backpack?

Justice Kennedy suggested the prosecutor was broadening the single purpose container test to say because there is a baggie or the tip of baggies-not marijuana- sticking out from a zipper, that’s now the single purpose container?

That baggie didn’t indicate that this was a container for drugs because you couldn’t see the drugs, noted Justice Brunner. Why should we extend the container doctrine to this situation? What if they had opened the backpack based upon this scenario and found a peanut butter and jelly sandwich?

The Backpack and the Baggies

Didn’t the officer see baggies sticking out of the backpack, asked Justice DeWine? Or at least a baggie? Didn’t that kind of announce that there were baggies in the backpack?

Were all the baggies or just the tip of one baggie sticking out from the zipper, asked Justice Kennedy?

What was the inventory of the backpack asked Justice Brunner? What else was found in the backpack? It could have been books, she added.

Did the officers know what was in the baggies, asked Justice Stewart? She added that a baggie in and of itself could have a sandwich or medication and was not necessarily transport for criminal contraband.

Didn’t Officer Coburn concede under oath at the hearing that he did not know or see what was in the baggies, asked Justice Donnelly?

Officer Safety

The officer testified at the suppression hearing that the main reason he opened the bag was to search for weapons, noted Justice Donnelly. How did the trial court indicate that was going to be disregarded?

Didn’t the Third District reject the officer safety rationale, asked Justice Stewart? She added that once it was determined there was no one else in the house, there was no immediate threat to officer safety.

Burrough’s Behavior

Didn’t the officer see Ms. Burroughs doing something with baggies, asked Justice DeWine?

By the time the officers came to the house they arrested Ms. Burroughs without incident, and she was in the cruiser, observed Justice Stewart. Did the police officers have any reason to do anything else in the house? If she had come to the door and they had said they had a warrant for her arrest and was taken away at the front door isn’t that different than her grabbing some baggies and running to the back of the house? Had she opened the door and been arrested right on the spot would the officers have been justified in doing anything inside the home?

The Seizure

Why not just seize the backpack, asked Justice Fischer?

Need For a Warrant

How is finding a backpack within a home different from finding it on a school bus or something like that, asked Justice Brunner?

Ms. Burroughs was secured, noted Justice Stewart. The officers legitimately did a sweep to ensure no one else was in the house. Then the aura of marijuana and the shake gives probable cause to believe there is contraband in the home. So why not secure a warrant? She added that there was no threat of destruction of whatever was in the baggie. Later she added that it seemed pretty clear that there would not have been any problem in securing a warrant based on the officers’ testimony-what they smelled and what they saw, Ms. Burroughs running with the baggies and then baggies sticking out of the backpack. It seems like getting a warrant would have been a no brainer, she said. Don’t we erode the constitutional protections here where everything was safe and secure by not getting a warrant? Wouldn’t a warrant ensure that everything is legitimate under the constitutional protections of the Fourth Amendment?

Even if it is a foregone conclusion that the officer would have received the warrant does that matter, asked Justice Donnelly? Is that a reason to erode everyone else’s Fourth Amendment protections?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for Burroughs. A majority of the justices simply did not seem convinced that the backpack announced its contents, so they were not buying the single purpose container exception to the warrant requirement. As Justice Brunner wryly noted, the baggies could have contained a peanut butter and jelly sandwich. The defense wisely did not contest the legitimacy of the seizure of the backpack but argued strongly that a warrant was necessary for the search. The prosecutor strongly argued for the warrant exception, but only Justice DeWine seemed to be buying it.

To Student Contributor James Gravely

While the justices were not hostile to either party’s arguments, they appeared to be more skeptical of the State’s position. Justice Stewart focused on the need to search the backpack, even though Burroughs was already in a police car and the scene was secured. There was no danger of evidence being destroyed, and no present danger to officers or the public. She later asked the State whether constitutional protections would be eroded by ruling that a search warrant isn’t required where a scene is otherwise safe and secured. The State relied on the fact that the backpack was partially open, and therefore Burroughs did not have a reasonable expectation of privacy. Justice Donnelly also had constitutional concerns as he questioned whether Fourth Amendment protections would be eroded by granting a warrant solely because it’s likely that one being granted is a foregone conclusion.

There was also discussion around the single purpose container warrant exception. Some justices did not appear to believe that a backpack is a single purpose container, especially akin to the frequently used example of a gun case. Further, because the State provided no caselaw speaking to the issue of a search of a residence, Justice Brunner questioned why the single purpose container doctrine should be extended in this case at all. The State again relied on the fact that Burroughs did not have a reasonable expectation of privacy. Justice Brunner subsequently asked the State if officers conducted the same search and found a baggie with a sandwich (and thus a law-abiding citizen), would this case even have been brought before them.  After taking some time to think, the State conceded that this case likely wouldn’t exist under those circumstances.

In my opinion, the State’s inability to answer Justice Brunner’s sandwich scenario toward the end of its argument, took some legitimacy out of the State’s overall argument. Most of the Justices seemed hesitant to extend the single purpose doctrine to residences in this case. Based on this reluctance and the fact that only Justice DeWine seemed to be agreeable to the State’s position, I think that Burroughs will prevail.