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Two unspoken words trigger appeal
YOUNGSTOWN
The failure of Boardman police to say “search warrant” before they broke down an apartment door led a trial judge to exclude the heroin and other items they seized from evidence and propelled the matter into the 7th District Court of Appeals.
The prosecution appealed the decision of Judge John M. Durkin of Mahoning County Common Pleas Court to exclude from evidence the small amount of heroin, car, TV and gaming console police seized Nov. 2, 2012.
After the occupants of an Applecrest Court apartment failed to comply with a police order to open the door, officers broke down the door and arrested Sherri A. Bembry and Harsimran Singh, according to the prosecution’s appeal brief.
Bemby was later indicted on a charge of permitting drug abuse.
Singh was indicted on charges of heroin possession and trafficking and receiving stolen property, with a forfeiture specification.
A three-judge appeals panel, consisting of Judges Mary DeGenaro, Gene Donofrio and Cheryl Waite, heard oral arguments this week and will rule at a later date.
Ralph M. Rivera, the assistant county prosecutor arguing the appeal, conceded the police violated Ohio law by not announcing they had a search warrant after identifying themselves as police and before breaking down the door.
Rivera said, however, excluding evidence from a criminal case shouldn’t be the remedy.
The purposes of the law, known as “knock and announce,” are to protect police by discouraging occupants from violently defending their homes, and to give occupants a chance to properly clothe themselves before police enter their homes, Rivera explained.
In response to Judge Waite’s question as to what should be the remedy for violating the “knock and announce” law, Rivera suggested a civil remedy.
“The whole purpose of the exclusionary rule is to deter police misconduct, so the police do not break the law,” observed Judge Donofrio. “All the police had to do was say: ‘It’s the police. We have a search warrant,’” Judge Donofrio added.
The only remedy that will motivate police to follow the “knock and announce” law is exclusion of the evidence they seize if they violate it, said Atty. Louis M. DeFabio, who represented Bembry and Singh.
“The rights that are protected are the dignity and privacy of the home,” DeFabio said.
“Why have this rule in Ohio if we’re not going to enforce it?” he asked.