State v. Willis , 2006 Ohio 5754 ( 2006 )


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  • {¶ 35} I respectfully dissent from the decision of the majority.

    {¶ 36} The Fourth Amendment protects persons from unreasonable searches and seizures by government officers. Therefore, a search performed by a private person for purposes independent of any governmental function does not implicate the Fourth Amendment's protections, notwithstanding the fact that the search *Page 373 yields evidence subsequently used in a criminal prosecution by the government of the person whose premises were searched.

    {¶ 37} This "private search" exception to the Fourth Amendment is itself subject to an exception. When the conduct of a private person or entity is "essentially a public function," Marsh v. Alabama (1946), 326 U.S. 501, 506,66 S.Ct. 276, 90 L.Ed. 265, state action can exist. ThoughMarsh involved the First Amendment, its rationale has been extended to application of the Fourth Amendment to hold that private searches undertaken "to assist criminal prosecutions may be * * * an inherently governmental task."Stapleton v. Superior Court (1968), 70 Cal.2d 97, 104,73 Cal.Rptr. 575, 447 P.2d 967. Then the government's subsequent use of evidence obtained by a private person for the purpose of aiding a criminal prosecution is suppressed under a "ratified intent" theory. See LaFave, Search and Seizure (4th Ed.2004) Section 1.8(f). Even then, however, the rule does not apply when the evidence was obtained by the private person for that purpose without any prior involvement of government officials. Id. at fn. 229.

    {¶ 38} In the present case, the search was proposed and executed by a private person, White, and though she was motivated by a desire for retribution, the search was not performed for a private purpose. Rather, its expressed purpose was to obtain evidence implicating defendant in committing drug offenses. There was no other purpose for the search independent of that goal. Further, unlike in the cases cited in the majority opinion, White's purpose was made known to Officer Berry prior to the search, and his instruction to her was to report back to him any observations she made that could implicate defendant in the drug offenses alleged. Under those circumstances, the search White performed was essentially a public function, not a private function, and the search is subject to the prohibitions imposed by the Fourth Amendment. Lacking a prior warrant or any exception to the warrant requirement, the search was unreasonable and therefore illegal.

    {¶ 39} The observations that White made in her warrantless search of defendant's home were presented as probable cause for the warrant police obtained to perform the search that yielded the evidence that defendant sought to suppress. Any illegality in obtaining the facts upon which a search warrant is issued taints the warrant as well as the legality of the search and seizure performed pursuant to the warrant. Nevertheless, suppression may yet be avoided on the good-faith exception explained in United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. I would reverse the judgment and remand the cause for that determination. *Page 374

Document Info

Docket Number: No. 2005-CA-116.

Citation Numbers: 169 Ohio App. 3d 364, 2006 Ohio 5754

Judges: BROGAN, Judge.

Filed Date: 10/27/2006

Precedential Status: Precedential

Modified Date: 1/13/2023