RIGHTS MUST BE READ BEFORE SEARCH

Ohio High Court Throws Out Drug Evidence

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.