No!

[T]he short delay in this case did not affect the existence of probable cause so as to render Jordan’s arrest unreasonable.

 

State v. Jordan

2021 – Ohio – 3922

Supreme Court of Ohio

November 9, 2021

On December 12, 2016, an unknown felon broke into James and Emiko Locke’s Cincinnati home through a bedroom window and stole a safe that contained $40,000. Cincinnati Police Detective Mark Longworth, who investigated the burglary, characterized it as “unusual in that really only the safe was taken,” as only a few people knew of the safe’s location and contents. Mr. Locke told Det. Longworth that other than Locke and his wife, only his son Michael and godson Demarco knew about the safe.

The Lockes suspected that Michael had been involved in the burglary. They told Det.  Longworth that they had thrown Michael out of the house but that he had “recently come back around.” They were suspicious of Michael because he had telephoned them around the time of the burglary to determine whether they were home. Michael then arrived at his parents’ home shortly after they discovered the burglary, “fishing around for information about what had happened” and what they knew. When a neighbor stopped by and reported that he had seen a suspicious vehicle—a cream-colored Chrysler 300—parked near the Lockes’ house around the time of the burglary, Michael became upset and told the neighbor to leave.

The Lockes believed that the vehicle the neighbor had described belonged to Michael’s friend “Dre”—appellant, Mr. LeAndre Jordan—whom they described to Det. Longworth and characterized as “trouble.” They told Det. Longworth that Mr. Jordan worked at a barbershop near the Kroger store on Warsaw Avenue. Det. Longworth located a cream-colored Chrysler parked in the Kroger parking lot, across the street from the barbershop; it was registered to Mr. Jordan’s mother.

Det.  Longworth interviewed Michael a couple of days after the burglary, and Michael confirmed that Mr. Jordan drove the car that Det.  Longworth had located in the Kroger parking lot. Michael’s cell-phone call log confirmed calls to his parents at 4:23 p.m. and 4:29 p.m. on December 12, 2016, shortly before the burglary, as well as multiple calls between Michael and Mr. Jordan around the time of the burglary. In common parlance these calls are called a clue.

As a result of his investigation, Det. Longworth believed that Mr. Jordan was involved in the burglary. For several days, he observed Mr. Jordan coming and going between the cream-colored Chrysler, parked in the Kroger parking lot, and the barbershop. On December 20, eight days after the burglary and without an arrest warrant, Det. Longworth and another officer arrested Jordan as he exited a business. The location of the arrest will be of utmost importance when legally evaluating this case.

Mr. Jordan was arrested while exiting a business on Warsaw Avenue in Cincinnati, eight days after he committed a Burglary.  At the moment of the arrest the officers had probable cause but no warrant.  Was Mr. Jordan’s arrest lawful?

At the time of his arrest, Mr. Jordan was carrying his girlfriend’s identification and keys that had an apartment number on them. Det. Longworth determined that Mr. Jordan was staying with his girlfriend at that apartment. Based on that information, Det.  Longworth obtained a warrant to search the apartment for evidence related to the burglary. Obtaining this search warrant is exceptional police work.  The search did not uncover evidence that could be definitively linked to the burglary, but officers found and seized approximately $2,100 in cash, as well as heroin, cocaine, an electronic scale, and a handgun. Mr. Jordan’s drug charges stemmed from the evidence seized.

Mr. Jordan filed a motion to suppress. He argued that his arrest was unconstitutional and that the evidence should be suppressed as the fruit of that constitutional violation. Jordan admitted in his motion, “An arrest without a warrant is constitutionally valid if, at the moment the arrest is made, the arresting officer has probable cause to make it,” but he argued that his arrest was not supported by probable cause. At the suppression hearing, Mr. Jordan’s attorney primarily repeated the argument that the police lacked probable cause to arrest Jordan, but he also stated more broadly that “there was no warrant,” even though eight days had elapsed during which Det. Longworth could have obtained one.

The trial court denied the motion to suppress, and the case proceeded to a jury trial. Mr. Jordan was convicted of trafficking in heroin, aggravated trafficking in drugs, possession of heroin, aggravated possession of drugs, and possession of cocaine. After merging allied offenses, the trial court sentenced Jordan to an 11- year prison term and imposed a driver’s license suspension.

Mr. Jordan appealed to the First District Appellate Court which upheld his conviction. Thereafter he appealed to the Supreme Court of Ohio.  Mr. Jordan’s primary argument was that Det. Longworth had eight days to obtain an arrest warrant, didn’t and therefore the arrest for burglary was unlawful.  The discovery of his pile of narcotics and related felony tools, based on the search warrant, was a fruit of the poisonous tree and therefore should be suppressed.  Specifically, Mr. Jordan argued “[E]ven accepting that the existence of probable cause generally makes a public felony arrest constitutionally permissible [under O.R.C. §2935.03 and §2935.04], Jordan argues that the general rule should not apply when there is an unreasonable delay between the establishment of probable cause and the arrest itself.”.

The Supreme Court of Ohio in a five to two decision held “[T]he short delay in this case did not affect the existence of probable cause so as to render Jordan’s arrest unreasonable.”.

This case was issued by the Supreme Court of Ohio and is binding in the entire State of Ohio.

Information for this article was obtained from State v. Jordan, 2021 – Ohio -3922.

 

Lessons Learned:

  1. Stale Probable Cause Doctrine – Arrest and Search Warrants – Once law enforcement establishes probable cause that probable cause is valid until it becomes stale. The court addressed the Staleness Doctrine in this case when it opined “Jordan likens the probable cause necessary to justify an arrest to that required to justify a search for evidence, and he unpersuasively suggests that any probable cause to believe that he was involved in the burglary of the Lockes’ home had gone stale by virtue of the eight-day delay between the burglary and his arrest. Probable cause to support the issuance of an arrest warrant does not grow stale in the same ways as the probable cause that is necessary to support a warrant to search for particular evidence in a particular place. Probable cause to believe that particular objects exist in a particular place does not last indefinitely because delay in acting upon such probable cause affords opportunities for the evidence to be moved, hidden, or destroyed. On the other hand, there is nothing inherent in a delay that would make a suspect’s involvement in a criminal offense less probable. (“It is the rare case where ‘staleness’ will be relevant to the legality of a warrantless arrest. When there is a reasonable belief that someone has committed a crime, time by itself does not make the existence of that fact any less probable.  Further investigation or circumstances could discredit information that supports the belief that the suspect has committed a felony, but Jordan has identified no facts that came to light between the time of the burglary and the time of his arrest that would have discredited the information that formed the basis of the officers’ probable cause for believing that he was involved in the burglary.”.  Law enforcement should provide heavy weight to the Staleness Doctrine for search warrants as time is an enemy.  But for arrest warrants the court has determined it is less of a concern, unless officers obtain additional, intervening information that diminishes the probable cause.  If an officer learns of information that omits the probable cause then, of course, the probable cause is stale and no arrest or search should be made.
  2. Location of Arrest – Another factor worthy of emphasis is the location of the warrantless arrest. The arrest was completed outside of a cell phone store.  Because the arrest was made with probable cause but without a warrant, it was effected in a public place – outside of the cell phone store.  The court in this case made this critical distinction as entering a structure without a warrant would be unlawful unless there was consent or an exigent circumstance.  Specifically, the court held “Because Jordan was arrested in public, the rule announced in Payton is inapplicable here.”.  The case referenced is Payton v. New York, 445 U.S. 573 (1980) which held that when law enforcement has probable cause to arrest a person, in this case murderer Mr. Teddy Payton, officers cannot enter a building without consent or exigent circumstance.  NYPD did forcibly enter Mr. Payton’s apartment and found evidence used against Mr. Payton at trial, which was ultimately suppressed.  The NYPD officers entered the apartment with only probable cause but no warrant.  Because Mr. Jordan was arrested in a public place the rule established in Payton is not applicable.
  3. Ample Time? Anytime law enforcement can obtain a warrant, search, or arrest, then the conservative approach is to obtain the warrant. In this case Det. Longworth did nothing incorrectly and made the on-view arrest with probable cause that was established eight days prior.  Justice Jennifer Brunner and Justice Melody Stewart believe that law enforcement should not make arrests with probable cause but without a warrant if there is time to obtain the warrant.  Specifically, Justice Stewart opined “I find that the police acted outside of their statutory authority when they made a warrantless arrest of Jordan even though they had ample time to secure an arrest warrant.” [Emphasis added].  This ideology would begin a slide down the slippery slope but quickly have judges gleefully skiing down this legal slope.  Why?  Because what may be ‘ample’ time in the judge’s chambers may be very different to an officer at the scene of a crime or the day after the crime, when he sees the suspect loading his car for long distance travel.

Does your agency train on Arrest Warrants?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.