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Published: Thursday, 7/13/2006

Rights must be read before search

BY JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - The Ohio Supreme Court ruled yesterday that the state constitution provides greater protection against self-incrimination than the U.S. Constitution as it threw out evidence that helped to convict a motorist of possessing drug paraphernalia.

In reversing two lower-court rulings, the high court split 4-3 in finding that evidence obtained from the search of a vehicle's trunk could not be used against the driver when the search was based on questioning begun before the suspect had been read his constitutional rights.

"In cases like this one, where possession is the basis for the crime and physical evidence is the keystone of the case, warning suspects of their rights can hinder the gathering of evidence," wrote Justice Paul Pfeifer for the majority. "When physical evidence is central to a conviction and testimonial evidence is not, there can arise a virtual incentive to flout Miranda."

The decision, based on the court's interpretation of the Ohio Constitution, goes beyond the U.S. Supreme Court's interpretation of the Fifth Amendment of the U.S. Constitution. The nation's high court has held that, although an improperly obtained statement cannot be used against a suspect, physical evidence garnered as a result of a volunteered statement could.

Justice Pfeifer noted that the U.S. Constitution sets a civil liberties minimum that states are free to exceed.

He wrote that while an odor of marijuana from the vehicle was probable cause for a search of the passenger compartment, it was insufficient to expand that search to the trunk. A highway patrolman stopped Stephen F. Farris, then 21, for speeding on U.S. Route 30 in Wooster when the trooper detected a light odor of marijuana. The trooper did not immediately arrest Mr. Farris, but placed him in the police cruiser.

The officer did not initially advise Mr. Farris of his rights under the U.S. Supreme Court's Miranda decision. When the trooper informed Mr. Farris he was going to search the car, the driver admitted he had a marijuana pipe in a bag in his trunk. The trooper then read him his rights, asked the same questions, and got the same responses.

He then proceeded to search the trunk, finding the pipe and cigarette papers. Mr. Farris ultimately pleaded no contest to the charge after the trial court refused to suppress the evidence.

The full state Supreme Court agreed that statements made by Mr. Farris before and after he was read his rights on Dec. 18, 2002 were essentially the results of a single interrogation that was tainted from the start. But they were divided on whether that also spoiled the evidence garnered from the search.

Writing for the minority, Justice Alice Robie Resnick argued that the trooper didn't need the statement to justify the search.

"Our precedent makes clear that the smell of marijuana alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search an automobile ...," she wrote. "Therefore, it is unquestionable that when the officer in this case smelled the odor of burnt marijuana coming from the appellant's vehicle, he had sufficient probable cause to search the automobile, including the trunk ..."

"Obviously, the Ohio Constitution carries its own weight, so long as it doesn't provide less protection than the federal constitution," Assistant Wayne County Prosecutor Jason B. Desiderio said. "The ramifications going forward aren't something we've had time to hash out."

Joining Justice Pfeifer in the majority were Chief Justice Thomas Moyer and Justices Maureen O'Connor and Judith Lanzinger. Justices Evelyn Lundberg Stratton and Terrence O'Donnell joined Justice Resnick in the minority.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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