The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Magistrate issues arrest warrants for 17 years but is new to "probable cause"


Here's a remarkable case from the Ohio Supreme Court, State v. Hoffman, involving an unconstitutional arrest warrant. The defendant was arrested for a misdemeanor based on a defective arrest warrant, leading to the discovery of evidence of murder. The remarkable part is why the arrest warrant was defective. For at least 17 years, magistrates in Toledo, Ohio were instructed to issue arrest warrants without ever actually making a probable cause determination. Officers would just say that the suspect had committed an offense, and the magistrates would issue the warrant without ever hearing the factual basis for that conclusion. Here's the testimony of the magistrate who issued the arrest warrant in this case:

Q. And during your 17 years of swearing in criminal complaints with requests for arrest warrants, did you know what probable cause was?
A. No.
Q. Had you ever made a probable cause determination?
A. No.
* * *
Q. Did any of [your] training include making a probable cause determination?
A. No, it did not.

Pretty astonishing, given that the text of the Fourth Amendment says, "no warrants shall issue, but upon probable cause."

In the new decision, the Supreme Court of Ohio recognizes the flagrant constitutional violation but concludes that the evidence in this case should not be suppressed because of the good-faith exception. An intermediate state case, State v. Overton, had involved a similar warrant, and the Overton court had held in a one-paragraph summary that the warrant had established probable cause. The Ohio Supreme Court concludes in Hoffman that Overton was binding appellate precedent under Davis at the time the warrant was issued in Hoffman, essentially trumping the text of the Fourth Amendment for purposes of the exclusionary rule.

I find Hoffman puzzling in two ways. First, I think the scope of the exclusionary rule for a defective warrant is set by United States v. Leon, 468 U.S. 897 (1984), not Davis. Leon lays out the standards for when the good faith exception applies to defective warrants, and it clearly does not apply here: Leon says that the good faith exception only applies if "[s]ufficient information [was] presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." This case involves exactly that mere ratification that Leon says won't suffice. Given the clarity of Leon on this point, coming straight from the U.S. Supreme Court, it seems strange to me to apply Davis instead based on the conclusory decision in Overton.

Second, even if Leon applies instead of Davis, it's not obvious to me that suppression is an available remedy. The problem, it seems to me, is that arrests generally don't require warrants. Unlike searches, they generally require only probable cause. Given that, it's not clear to me that a defective arrest warrant makes a difference. If the police have probable cause, they could make the arrest without a warrant. In such circumstances, I don't see how the arrest violates the Fourth Amendment (as compared to the warrant) if the police also obtain a warrant that is defective. Probable cause authorizes the arrest, not the warrant, so a search incident to arrest should be okay. Granted, in Hoffman, it's not clear that the police actually had probable cause. It looks like the officers relied mostly on the warrant in the suppression hearing rather than making the case for probable cause directly. Either way, probable cause is the real issue.