[Cite as State v. Gardner, 135 Ohio St.3d 99, 2012-Ohio-5683.]




                THE STATE OF OHIO, APPELLANT, v. GARDNER, APPELLEE.
         [Cite as State v. Gardner, 135 Ohio St.3d 99, 2012-Ohio-5683.]
Criminal law—Arrest warrant—Reasonable expectation of privacy—Mere
        existence of an outstanding warrant does not render a later unjustified
        seizure lawful.
(No. 2011-2134—Submitted September 26, 2012—Decided December 6, 2012.)
            APPEAL from the Court of Appeals for Montgomery County,
                              No. 24308, 2011-Ohio-5692.
                                   ________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we consider whether an individual who is the subject
of an outstanding arrest warrant forfeits all expectations of privacy protected by
the Fourth Amendment to the U.S. Constitution and the Ohio Constitution, Article
I, Section 19. We hold that he does not. We therefore affirm the decision of the
court of appeals, which found error in the trial court’s decision denying a motion
to suppress based solely on the notion that an arrest warrant “cleanses” any error
by police in seizing an individual later found to be subject to the warrant, and we
remand the cause to the trial court to consider whether police properly detained
appellee, Damaad Gardner, before discovering that he was the subject of an active
arrest warrant.
                            RELEVANT BACKGROUND
        {¶ 2} On March 17, 2010, Officer David House of the Dayton Police
Department was in an unmarked cruiser patrolling a neighborhood described as a
high crime area. During his patrol, he observed a pickup truck bearing license
plates that indicated the vehicle was from outside Montgomery County.           He
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followed the truck because he believed that people from outside Montgomery
County came to Dayton to buy illegal drugs.
       {¶ 3} After reviewing computerized motor-vehicle-registration records,
Officer House learned that the truck was registered to someone from Clinton
County who had a drug-related conviction. Officer House followed the truck to
see if the driver was going to an area in which drugs were known to be sold.
       {¶ 4} The truck pulled into the driveway of a residence, and the driver and
his passenger went into the home. Officer House watched the house to see if the
driver would stay for only a brief time, which he believed would indicate that a
drug sale had taken place. After 15 minutes, neither the driver nor the passenger
had returned to the vehicle, and Officer House left the scene. Three hours later,
however, he returned.
       {¶ 5} Upon his return, Officer House saw that the truck was still in the
driveway and that a car was also present. Officer House checked the registration
of the car and learned that it was registered to Richard Easter, a Caucasian male,
approximately six feet tall and weighing 160 pounds. Easter had an outstanding
warrant for his arrest for failing to appear at a trial in Butler County on a drug
case. Officer House began surveillance on the house to determine if Easter was in
it.
       {¶ 6} Soon thereafter, two African-American men emerged from the house
and went to the car. One, appellee, Damaad Gardner, got in the car and sat in the
front passenger seat; the other man got in and sat in the back seat. Both men
appeared younger than Easter.
       {¶ 7} A man who was later identified as Easter then emerged from the
home and took the driver’s seat. As Easter drove away, Officer House followed
him with the intent to call a marked police cruiser to stop Easter’s vehicle,
determine if Easter was the driver, and if so, arrest him on the outstanding




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warrant. Before he could do so, however, Easter pulled into a gas station, parked
the car, and purchased cigarettes.
          {¶ 8} Officer House, wearing a police-issued vest that bore his badge and
“DAYTON POLICE” in large letters, approached Easter. Easter admitted his
identity. While standing near the driver’s door of Easter’s car, Officer House
handcuffed and arrested Easter.
          {¶ 9} As Officer House was arresting Easter, he noticed that Gardner was
moving inside the car, had his hand on the door handle, and appeared to be getting
ready to exit the vehicle. Officer House walked Easter around the car in order to
approach the men inside the car from the passenger side. Officer House saw
Gardner rise from the seat and reach into the back of his shorts. Officer House
shouted to Gardner to place his hands on the dashboard. Gardner complied.
          {¶ 10} After ordering Gardner from the car, Officer House, who was the
only law-enforcement agent at the scene, handcuffed him. He told Gardner that
he was not under arrest, but that he was being handcuffed only for the officer’s
safety.
          {¶ 11} Officer House then patted down Gardner. Although he did not
discover weapons, he did detect something he suspected to be crack cocaine in
Gardner’s buttocks. Officer House placed Gardner under arrest and removed the
contraband. Before Miranda warnings were given, Gardner stated something to
the effect of “He gave it to me to hide it.”
          {¶ 12} After other officers arrived on the scene, Gardner was taken into
custody. Police then determined that he was the subject of an arrest warrant for a
traffic violation.
          {¶ 13} Gardner was indicted on one count of possession of crack cocaine.
He unsuccessfully moved the trial court to suppress the cocaine found in his
possession. In denying the motion, the judge described the arrest warrant as “a
big elephant in the room.” According to the judge, “If there’s an arrest warrant




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for Mr. Gardner, the ballgame’s over, right? Then everything’s cleansed. Even if
I agree totally with the defense up till now.” Ultimately, the judge, citing an
unreported Second District decision, Dayton v. Click, 2d Dist. No. 14328, 1994
WL 543210 (Oct. 5, 1994), stated, “Presuming for a moment * * * there was an
illegal stop or illegal search, it matters not. I mean, because in this case we know
Officer House didn’t discover the arrest warrant until after the stop, search, pat-
down and that had all occurred. But it makes no difference under this authority.”
Based on Click and its progeny, the judge denied the motion to suppress.
       {¶ 14} Gardner then pleaded no contest to one count of possession of
crack cocaine. Upon his conviction, he appealed. After characterizing Click and
its progeny as “labyrinthine, if not desultory,” a divided panel of the Second
District Court of Appeals reversed, noting that it was not bound by the doctrine of
stare decisis to apply Click because this case involves a constitutional question.
State v. Gardner, 2d Dist. No. 24308, 2011-Ohio-5692, ¶ 31. It also found that
there was no evidence showing “when and how the officers discovered Gardner’s
name or that there was a warrant; whether the court found facts justifying—or not
justifying—a Terry patdown; or whether, if such a patdown were justified,
whether the seizure of the drugs was within the plain feel exception.” Id., ¶ 39. It
thus remanded to the trial court for further proceedings.
       {¶ 15} We accepted the state’s discretionary appeal, 131 Ohio St.3d 1483,
2012-Ohio-1143, 963 N.E.2d 824, which presents a single proposition of law:
“When a person is subject to arrest on an outstanding warrant, he or she has no
expectation of privacy that would protect him or her from execution of that
warrant.” We reject the state’s assertion and affirm the appellate court’s decision.
                                   ANALYSIS
       {¶ 16} “ ‘No right is held more sacred, or is more carefully guarded, by
the common law, than the right of every individual to the possession and control
of his own person, free from all restraint or interference of others, unless by clear




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and unquestionable authority of law.’ ” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), quoting Union Pacific Ry. Co. v. Botsford, 141 U.S.
250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). Thus, our constitutions forbid
searches and seizures without warrants, except in a few narrow circumstances.
See generally Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d
576 (1967) (describing Fourth Amendment protections); State v. Buzzard, 112
Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 13 (“If the state wishes to
intrude on the individual’s right to be secure in his person, house, paper, and
effects by searching or seizing him or his things, the state must first secure a
warrant. Section 14, Article I, Ohio Constitution”).
       {¶ 17} As the Supreme Court has explained:


               Implicit in the Fourth Amendment’s protection from
       unreasonable searches and seizures is its recognition of individual
       freedom. That safeguard has been declared to be “as of the very
       essence of constitutional liberty” the guaranty of which “is as
       important and as imperative as are the guaranties of the other
       fundamental rights of the individual citizen * * *.” Gouled v.
       United States, 255 U.S. 298, 304, 41 S.Ct. 261, 263, 65 L.Ed. 647
       (1921); cf. Powell v. Alabama, 287 U.S. 45, 65-68, 53 S.Ct. 55, 62-
       64, 77 L.Ed. 158 (1932).


Ker v. California, 374 U.S. 23, 32-33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Put
another way:


               The fourth amendment protects the privacy and personal
       security of individuals from arbitrary and oppressive interference
       by limiting the search-and-seizure authority of law enforcement




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       officials. The standard against which the fourth amendment
       requires that we judge the validity of a search or seizure is one of
       reasonableness in light of the totality of the circumstances.
       Pennsylvania v. Mimms, 434 U.S. 106, 109-110, 98 S.Ct. 330, 332,
       54 L.Ed.2d 331, 335-336 (1977); United States v. Sink, 586 F.2d
       1041, 1047 (5th Cir.1978), cert. denied, 443 U.S. 912, 99 S.Ct.
       3102, 61 L.Ed.2d 876 (1979). In determining the reasonableness
       of a particular law enforcement practice, a court must weigh the
       public interest promoted by the practice against its intrusion upon
       the personal rights of the individual protected by the fourth
       amendment. Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861,
       1884, 60 L.Ed.2d 447, 481 (1979); Delaware v. Prouse, 440 U.S.
       648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979); United
       States v. Martinez-Fuerte, 428 U.S. 543, 553, 96 S.Ct. 3074, 3081,
       49 L.Ed.2d 1116, 1125 (1976). Some of the factors that the court
       should consider are “the scope of the particular intrusion, the
       manner in which it is conducted, the justification for initiating it
       and the place in which it is conducted.” Bell v. Wolfish, 441 U.S.
       at 559, 99 S.Ct. at 1884.


Wanger v. Bonner, 621 F.2d 675, 681 (5th Cir.1980).             Thus, unless it is
objectively reasonable to do so, no individual may be detained “even
momentarily” by the police. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319,
75 L.Ed.2d 229 (1983); Ker at 33, quoting Go-Bart Importing Co. v. United
States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931).
       {¶ 18} In its arguments here, the state casts aside these core concepts—
embodied in both the federal and state constitutions and explained by the United
States Supreme Court and this court—and insists that an individual who is the




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subject of an outstanding arrest warrant has no privacy interests and thus no
standing to challenge a search by police. In support of its assertions, the state
relies almost exclusively on Click and the line of cases that followed Click. State
v. Hines, 2d Dist. No. 24346, 2012-Ohio-207, ¶ 14 (describing the line of cases
that followed Click as “the tortured history” of that precedent).
       {¶ 19} Click is not good law.
       {¶ 20} Click and its progeny stand for the proposition that an individual
subject to an arrest warrant has “no reasonable expectation of privacy in being
free from being stopped arbitrarily by police” because the warrant is the
embodiment of a court’s command to arrest the individual. State v. Smith, 2d
Dist. No. 22434, 2008-Ohio-5523, ¶ 11; see State v. Williams, 2d Dist. No. 22535,
2008-Ohio-6030, ¶ 21. Under Click, “[t]he mere existence of an outstanding
warrant, in other words, renders a seizure lawful, whether or not the officer is
aware of the warrant at the time of the seizure.” State v. Gray, 2d Dist. No.
22688, 2009-Ohio-1411, ¶ 12.
       {¶ 21} The state asserts that the rationale in Click is consistent with the
Fourth Amendment and that “[b]ecause Gardner was subject to being arrested,
searched, and taken to jail on the warrant, he had no expectation of privacy that
would protect him from an insufficiently justified Terry stop and frisk.” And it
asserts that Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d
38 (1981), and Payton v. New York, 445 U.S. 573, 602, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980), support its contention. We disagree.
       {¶ 22} It is true that a person subject to an arrest warrant does not enjoy
the full panoply of privacy rights that other individuals enjoy. As the state
contends, an arrest warrant authorizes the police to enter into an individual’s
home to seize him.       Payton at 602-603.       But the holding in those cases
presupposes that the police knew that there was a warrant for the individual’s
arrest when entering a home to make an arrest. The state cites no authority, and




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we are aware of none, that supports a conclusion that a person who is the subject
of an arrest warrant has no privacy protection.
       {¶ 23} We will not condone the notion that the unlawfulness of an
improper arrest or seizure always can be purged by the fortuitous subsequent
discovery of an arrest warrant. As one federal court succinctly stated, “This
argument is preposterous; the Fourth Amendment does not countenance such post
hoc rationalization.” Bruce v. Perkins, 701 F.Supp. 163, 165 (N.D.Ill.1988).
       {¶ 24} In so holding, we recognize that Gardner was the subject of an
outstanding warrant (albeit for a traffic violation) and that he had possessed crack
cocaine. But efforts “to bring the guilty to punishment, praiseworthy as they are,
are not to be aided by the sacrifice of those great principles established by years
of endeavor and suffering which have resulted in their embodiment in the
fundamental law of the land.” Weeks v. United States, 232 U.S. 383, 393, 34
S.Ct. 341, 58 L.Ed. 652 (1914). There is always a temptation in criminal cases to
let the end justify the means, but as guardians of the Constitution, we must resist
that temptation. See United States v. Mesa, 62 F.3d 159, 163 (6th Cir.1995).
After all, Fourth Amendment freedoms are not second-class rights; they are
indispensable to all members of a free society. See Brinegar v. United States, 338
U.S. 160, 180-181, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting).
       {¶ 25} Although we have rejected the state’s constitutional claim, we
intimate no opinion about whether suppression was proper. We agree with the
court of appeals that the trial court denied the motion to suppress without finding
whether there was a reasonable, articulable suspicion to justify Officer House’s
patdown of Gardner and whether the contraband seized could be justified. We
thus affirm the appellate court’s judgment, including its order to remand this
cause to the common pleas court to make the necessary findings and for any other
proceedings that may be necessary after those findings are made.
                                                                Judgment affirmed.




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       PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
                             __________________
       Matthias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram and Andrew T. French, Assistant Prosecuting Attorneys, for
appellant.
       Marlow & Neuherz, L.L.C., and Rebekah S. Neuherz, for appellee.
       Lewis R. Katz; Timothy Young, Ohio Public Defender, and Stephen
Hardwick, Assistant Public Defender; and Robert L. Tobik, Cuyahoga County
Public Defender, and John T. Martin, Assistant Public Defender, urging
affirmance on behalf of amici curiae, Professor Lewis R. Katz, Office of the Ohio
Public Defender, and Office of the Cuyahoga County Public Defender.
                          ______________________




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