The Ohio Supreme Court in 2017 addressed this question and held that even when the police violate Ohio’s “Knock and Announce” rule, law enforcement may still be able to validly arrest a person or search that person’s residence if initiated with a warrant. The case, State v. Bembry, began when the police obtained a search warrant for a suspected drug dealer’s home. When the police arrived at this person’s home, they knocked on his door and the person asked who it was. Law enforcement identified themselves, waited fifteen seconds, and knocked the door down.

Upon entering the person’s home, the police found drugs in his apartment and placed the person under arrested for possession of drugs. The person filed a motion to suppress, arguing that the police did not comply with Ohio’s knock-and-announce rule. The trial court granted this motion, finding that the police had violated R.C. 2935.12 without any exigent circumstances justifying the violation. The State appealed, arguing that the exclusionary rule is not the appropriate remedy for a failure to follow the knock-and-announce rule.

The Exclusionary Rule

The exclusionary rule is a fairly recent remedy for evidence obtained in a manner that violates the accused’s constitutional rights. Prior to Mapp v. Ohio, application of the exclusionary rule was inconsistent. The majority of courts in the United States had held such evidence “admissible on the basis that if it is pertinent to the main issue in the case, a court need not concern itself with the collateral issue of how it was gotten.” See State v. Lindway.

This, obviously, was ridiculous. It permitted law enforcement to obtain evidence in a multitude of manners we would now deem unlawful. Essentially, the police were allowed to conduct an unlawful search and use the fruits of that search against the accused.

However, the United States Supreme Court reserved the exclusionary remedy in Mapp for evidence produced by “brutal” or “offensive”’ physical force” violating the Fourteenth Amendment, which makes the Bill of Rights applicable to the states.

The exclusionary rule, however, is “applicable only where its deterrence benefits outweigh its substance social costs.” See Pennsylvania Bd. Of Probation & Parole v. Scott. Those social costs “sometimes include setting the guilty free and the dangerous at large. See Michigan v. Hudson. Before a court sanctions the exclusion of evidence, it must consider whether exclusion will actually remedy and deter future wrongdoing.

What is the “Knock and Announce” Rule in Ohio?

Pursuant to R.C. 2935.12, law enforcement may break down a door or window if refused admittance to a residence if the officer makes his presence known and states his intention. The principle requires “police officers executing a search warrant at a residence to first knock on the door, announce their purpose, and identify themselves before they forcibly enter the home.” See Wilson v. Arkansas.

The problem, however, is that the United States Supreme Court held in Hudson that suppression is the wrong remedy when police, with a valid search warrant, violate the knock-and-announce rule. First, the Court argued that the warrant requirement protects a person’s privacy interests and, thus, the exclusionary rule restores the private nature of the evidence. The knock-and-announce rule protects “human life and limb” that could be jeopardized by “self-defense by the surprised resident.”

Second, the Court stated that there is minimal incentive to violate the knock-and-announce rule and there is a danger that law enforcement would be dissuaded from risking a knock-and-announce violation in exigent circumstances, even though they already have the benefit of that exception.

In Bembry, the person filed a motion to suppress, arguing that the evidence obtained was done so in violation of the Fourth Amendment to the United States Constitution and the Ohio Constitution. Furthermore, the appropriate remedy was the exclusion of the evidence as law enforcement waited only fifteen seconds before knocking the door down, did not give sufficient warnings, and did not state that they were executing a search warrant.

Ohio Supreme Court Permitted the Unlawful Search and Seizure

The Court concluded that the person did not submit any arguments that he was entitled to have the evidence suppressed based on the knock-and-announce violation. The Court held that R.C. 2935.12 permits law enforcement to enter a residence by breaking down a door or window after the police give notice of their intention to make an arrest or execute a search warrant after being refused admittance. The exclusionary rule was designed to protect against unconstitutional warrantless or illegal searches and seizures. The purpose of the knock-and-announce rule is to protect safety and property of those on the premises “that can be destroyed by a sudden entrance.”

The Court felt that suppressing evidence found during a search based on a valid search warrant would not heal or undo the damage to the residence or the shock that followed. Furthermore, the suppression of evidence would not deter the police from failing to follow the law, because law enforcement could still claim an emergency situation and bypass the law.

However, the inherent problem with the Court’s decision is that the Fourth Amendment is a floor, not a ceiling, for protection. The Ohio Supreme Court is permitted to grant more expansive protections than the Fourth Amendment permits under Article I, Section 14 of the Ohio Constitution. Thus, the argument that the exclusionary rule cannot be used to remedy a knock-and-announce violation is absurd as the Court is well within its power to permit the use of the exclusionary rule in these types of cases.

Second, the argument that the exclusionary rule should not be used to deter future “knock and announce” violations is equally laughable. What other rule would better deter unlawful police behavior than the threat of excluding any evidence found as a result of that unlawful behavior? Furthermore, if the police had a valid reason for believing that evidence may be destroyed, it can still be argued that exigent circumstances existed that justified the knock-and-announce violation.

Columbus and Delaware, Ohio Criminal Defense Attorney

If you have been charged with a criminal offense in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your criminal offense case.

Johnson Legal, LLC serves the following cities in the central Ohio area for Criminal Defense:

Westerville, Worthington, Columbus, Polaris, Reynoldsburg, Grandview Heights, Shawnee Hills, Bexley, Pickerington, Gahanna, Sunbury, Powell, Upper Arlington, New Albany, Dublin, Hilliard, Lewis Center, Galena, Clintonville, Huber Ridge, Blacklick, Grove City, Delaware, Marysville, Groveport, Newark, Canal Winchester, Obetz, Marion, Mt. Gilead, Pataskala, Granville, Whitehall, Franklin County, Morrow County, Licking County, Knox County, Union County, Madison County and Delaware County