On November 18, 2021, the Supreme Court of Ohio handed down a merit decision in State v. LaRosa, Slip Opinion No. 2021-Ohio-4060. In a 4-3 decision written by Justice Fischer and joined by Chief Justice O’Connor and Justices Kennedy and DeWine, the Court held that the trial court did not err in denying the motion to suppress the hospital’s washcloth and LaRosa’s fingernail scrapings, and while the trial court did err in denying the motion to suppress LaRosa’s socks and underwear, the error was harmless. Justice Donnelly concurred in part and dissented in part, joined by Justices Stewart and Brunner. The case was argued March 3, 2021.

Case Background

Appellant 15-year-old Jacob LaRosa arrived home in the late afternoon of March 31, 2015, with blood on himself. His mother called the police. When an officer arrived at the house, he found LaRosa seemingly intoxicated, wearing only socks and underwear, with blood on himself but no visible injuries. The officer arranged for LaRosa to go to the hospital by ambulance.

As LaRosa was being placed in the ambulance the police officer was sent to investigate a house across the street, which was the residence of Marie Belcastro, who was discovered dead with blood everywhere.

When LaRosa got to the hospital he still seemed intoxicated and incoherent. Officer Biddlestone was given instructions to secure LaRosa as a suspect in Belcastro’s death. The officer handcuffed LaRosa to the bed.

During a hearing on the motion to suppress,  Officer Biddlestone testified that LaRosa’s socks and underwear had been removed by the hospital staff for the purpose of providing medical treatment to LaRosa. Also, a nurse had wiped LaRosa’s groin with a washcloth belonging to the hospital. A different officer obtained a warrant for the search of LaRosa’s body, and pursuant to that warrant hospital personnel got fingernail scrapings from LaRosa.

LaRosa was charged in juvenile court with delinquency counts related to Belcastro’s death. The case was transferred to adult court for LaRosa to be tried as an adult. LaRosa was indicted on one count each of aggravated murder, aggravated burglary, aggravated robbery and attempted rape.

LaRosa filed a motion to suppress the evidence from his hospital room including his socks and underwear, the washcloth, and the fingernail scrapings. The trial court denied the motion to suppress after a hearing. The court found the fingernails fell within the scope of the search warrant and that as to the socks and underwear LaRosa had no expectation of privacy in clothing removed from him when he voluntarily presented himself for treatment purporting to be a victim and the Fourth Amendment did not apply to the seizure of his removed clothing. Finally, the trial court found LaRosa had no expectation of privacy in the washcloth which belonged to the hospital, and no expectation of privacy in someone else’s blood.

After one day of voir dire, LaRosa pled no contest to all the charges and was sentenced to life without the possibility of parole on the murder count and an aggregate sentence of 30 years on the other counts to be served consecutively. LaRosa was also classified as a Tier III sex offender.

The Eleventh District unanimously affirmed  LaRosa’s conviction and sentence. As for the socks and underwear, the appeals court held that since they were taken by a nurse attempting to treat him there was no state action involved and no Fourth Amendment protection. The appeals court also held that because the washcloth was not LaRosa’s property he had no expectation of privacy in it and its seizure did not violate the Fourth Amendment. And finally, the appeals court agreed with the trial court that the term “hand swabs” in the warrant included fingernail scrapings. 

Read the oral argument preview here and the analysis here.

Key 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.”)

Nix v. Williams, 467 U.S. 431 (1984) (If the state can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, then the evidence should be admitted.)

Steele v. United States, 267 U.S. 498 (1925) (A warrant is sufficient if “the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.”)

Maryland v. Garrison, 480 U.S. 79 (1987) (The purpose of the particularity requirement for search warrants is “to prevent general searches” and to ensure “that the search will be carefully tailored to its justifications and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”)

State v. Freeman, 64 Ohio St.2d 291 (1980) (A defendant has abandoned his property when he “voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question.”)

Washington v. Chrisman, 455 U.S. 1 (1982) (A law enforcement officer may seize clearly incriminating evidence when it is discovered in a place where the officer has a right to be.)

United States v. Leake, 95 F.3d 409 (6th Cir. 1996) (To determine whether a court should apply harmless error to a plea, the court should consider the “degree of success and probability that the excluded evidence would have had a material effect on the defendant’s decision to plead guilty.”)

Merit Decision

Analysis

Propriety of the Seizures

  • Seizure of the Hospital’s Washcloth

LaRosa lumped together his argument about his socks and underwear and the washcloth, arguing that it was his personal property, and he had an expectation of privacy in it. The state argued that the washcloth was the hospital’s property and that it was subject to the inevitable-discovery exception to the warrant requirement.

The majority agreed with the appellate decision regarding the washcloth. It was not LaRosa’s property, and he had no expectation of privacy in it. He cannot claim a possessory interest in his urine that ended up on a washcloth belonging to someone else. As for any blood on the washcloth, the police had a warrant to swab LaRosa’s penis, so it was inevitable that they would have obtained a sample of any evidence on that area of his body.

LaRosa’s challenge to the seizure of the hospital’s washcloth was properly overruled.

  • Fingernail Scrapings

LaRosa argued that because the warrant allowed hand swabbing but did not specifically authorize taking fingernail scrapings the trial court erred in denying his motion to suppress the fingernail scrapings. The state argued that because the warrant authorized a search of LaRosa’s hands, it permitted the scraping of his fingernails. The majority agreed with the state, that the warrant was not general but highly specific, authorizing only a search of certain specific areas, one of which was LaRosa’s hands. LaRosa’s challenge to the admission of the fingernail scrapings was rejected.

  • The Seizure of LaRosa’s Socks and Underwear

LaRosa argued that the police, not the hospital staff seized his socks and underwear, and he had an expectation of privacy in those items. The state argued that there was no state action in the seizure of these items, but even if there had been LaRosa had no expectation of privacy in the items because they were evidence of a crime and he arrived at the hospital claiming to be the victim of a crime.

The majority first found that the police did seize the socks and underwear, which constituted government action. The majority also found that the state failed to establish any exception to the warrantless seizure of LaRosa’s socks and underwear, and that the trial court erred in denying the motion to suppress those items.  But the analysis doesn’t end there. Ultimately, the majority found the failure to suppress LaRosa’s socks and underwear to be harmless error. The majority looked at the burden shifting in Crim.R.52(A) and explained that although the state has the burden of showing that an objected-to error did not affect the defendant’s substantial rights, the burden shifts to the defendant to show that an unobjected-to-plain error affected his substantial rights.

The majority looked at the application of harmless error review in cases involving no-contest pleas in the context of OVI cases and concluded that any error in failing to suppress the results of field sobriety tests is harmless when there is sufficient independent evidence to support the defendant’s arrest. The majority also reviewed harmless error in federal cases involving no-contest pleas and concluded that a trial court’s error in ruling on a defendant’s motion to suppress does not require automatic reversal of a subsequent no-contest plea.  

The majority concluded that even if the trial court had suppressed the evidence of LaRosa’s socks and underwear the suppression of those items would not have had a material effect on his decision to plead no contest as they were largely duplicative of other evidence. Thus, the majority concludes that although the trial court erred in denying the motion to suppress LaRosa’s socks and underwear, the error was harmless. The judgment of the court of appeals was affirmed.

Justice Donnelly’s Dissent

Justice Donnelly agreed with the majority that the seizure of the washcloth and the fingernail scrapings did not violate the Fourth Amendment and agreed that the seizure of the socks and underwear did violate the Fourth Amendment but disagreed that this was harmless error. Donnelly sees the fundamental problem as the absence of any evidence of guilt admitted into the record. The only thing in the record is the testimony and exhibits from the hearing on the motion to suppress and the prosecutor’s unsworn statement of what the state would present if the case went to trial. Donnelly sees the majority’s application of the harmless error analysis as “wholly disruptive to the right to appeal a select category of pretrial rulings following a no-contest plea, and fundamentally incompatible with La Rosa’s right to due process of law.”

The majority properly declined to consider the state’s “plain view” argument because it was not raised below. But the state also failed to raise harmless error below as well, although the majority suggests that LaRosa raised the issue. Donnelly strongly disagrees with the majority on this point. He would find that the state clearly failed to raise harmless error below and thus waived the argument and the Court should not consider it. He would also find that the majority misapplies the harmless error rule in the case. He finds the majority’s application of the harmless error rule “woefully misguided” because of a lack of evidence showing LaRosa’s guilt. The prosecutor’s narrative recitation of what the evidence might show is not evidence. There is no basis on which to conclude that the failure to suppress LaRosa’s socks and underwear did not contribute to his decision to plead no contest, there is no factual or legal basis on which to apply the harmless-error rule to this no contest plea. The majority’s misapplication of the rule is inimical to appellate review and needlessly deprives LaRosa of due process of law.

“In my view the correct disposition of this case would be to reverse the court of appeals’ and trial court’s judgments regarding the suppression of the socks and underwear and remand the case to the trial court for further proceedings,” wrote Donnelly.

Case Disposition

The trial court did not err in denying LaRosa’s motion to suppress the hospital’s washcloth and the scrapings from LaRosa’s fingernails. The trial court did err in denying the motion to suppress LaRosa’s socks and underwear, but the error was harmless.

Trial Court Judge (affirmed in part and reversed in part)

Trumball County Common Pleas Court Judge Wyatt W. McKay

Eleventh District Court of Appeals Panel (affirmed)

Opinion by Judge Timothy Cannon joined by Judges Cynthia Westcott Rice and Mary Jane Trapp

Concluding Observations

Here’s what I wrote after argument:

“This was one of the liveliest, most intense arguments I’ve seen in quite a while. 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.”  

Here is some of what student contributor Liam McMillin wrote after argument:

“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?”