Ohio v. Robinette/Concurrence Ginsburg

Justice Ginsburg, concurring in the judgment.

Robert Robinette's traffic stop for a speeding violation on an interstate highway in Ohio served as prelude to a search of his automobile for illegal drugs. Robinette's experience was not uncommon in Ohio. As the Ohio Supreme Court related, the sheriff's deputy who detained Robinette for speeding and then asked Robinette for permission to search his vehicle "was on drug interdiction patrol at the time." 73 Ohio St. 3d 650, 651, 653 N. E. 2d 695, 696 (1995). The deputy testified in Robinette's case that he routinely requested permission to search automobiles he stopped for traffic violations. Ibid. According to the deputy's testimony in another prosecution, he requested consent to search in 786 traffic stops in 1992, the year of Robinette's arrest. State v. Retherford, 93 Ohio App. 3d 586, 594, n. 3, 639 N. E. 2d 498, 503, n. 3, dism'd, 69 Ohio St. 3d 1488, 635 N. E. 2d 43 (1994).

From their unique vantage point, Ohio's courts observed that traffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. One Ohio appellate court noted: "[H]undreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to ‘practice' his drug interdiction technique." 93 Ohio App. 3d, at 594, 639 N. E. 2d, at 503 (footnote omitted).

Against this background, the Ohio Supreme Court determined, and announced in Robinette's case, that the federal and state constitutional rights of Ohio citizens to be secure in their persons and property called for the protection of a clear cut instruction to the State's police officers: An officer wishing to engage in consensual interrogation of a motorist at the conclusion of a traffic stop must first tell the motorist that he or she is free to go. The Ohio Supreme Court described the need for its first tell then ask rule this way:

"The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. . ..

. . . ..

"Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him.

. . . ..

"While the legality of consensual encounters between police and citizens should be preserved, we do not believe that this legality should be used by police officers to turn a routine traffic stop into a fishing expedition for unrelated criminal activity. The Fourth Amendment to the federal Constitution and Section 14, Article I of the Ohio Constitution exist to protect citizens against such an unreasonable interference with their liberty." 73 Ohio St. 3d, at 654-655, 653 N. E. 2d, at 698-699.

Today's opinion reversing the decision of the Ohio Supreme Court does not pass judgment on the wisdom of the first tell then ask rule. This Court's opinion simply clarifies that the Ohio Supreme Court's instruction to police officers in Ohio is not, under this Court's controlling jurisprudence, the command of the Federal Constitution. See ante, at 5-6. The Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule. The ambiguity in the Ohio Supreme Court's decision renders this Court's exercise of jurisdiction proper under Michigan v. Long, 463 U.S. 1032, 1040-1042 (1983), and this Court's decision on the merits is consistent with the Court's "totality of the circumstances" Fourth Amendment precedents, see ante, at 5. I therefore concur in the Court's judgment.

I write separately, however, because it seems to me improbable that the Ohio Supreme Court understood its first tell then ask rule to be the Federal Constitution's mandate for the Nation as a whole. "[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." Oregon v. Hass, 420 U.S. 714, 719 (1975). But ordinarily, when a state high court grounds a rule of criminal procedure in the Federal Constitution, the court thereby signals its view that the Nation's Constitution would require the rule in all 50 States. Given this Court's decisions in consent to search cases such as Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and Florida v. Bostick, 501 U.S. 429 (1991), however, I suspect that the Ohio Supreme Court may not have homed in on the implication ordinarily to be drawn from a state court's reliance on the Federal Constitution. In other words, I question whether the Ohio court thought of the strict rule it announced as a rule for the governance of police conduct not only in Miami County, Ohio, but also in Miami, Florida.

The first tell then ask rule seems to be a prophylactic measure not so much extracted from the text of any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations of textually guaranteed rights. In Miranda v. Arizona, 384 U.S. 436 (1966), this Court announced a similarly motivated rule as a minimal national requirement without suggesting that the text of the Federal Constitution required the precise measures the Court's opinion set forth. See id., at 467 ("[T]he Constitution [does not] necessarily requir[e] adherence to any particular solution" to the problems associated with custodial interrogations.); see also Oregon v. Elstad, 470 U.S. 298, 306 (1985) ("The Miranda exclusionary rule . . . sweeps more broadly than the Fifth Amendment itself."). Although all parts of the United States fall within this Court's domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister States. The very ease with which the Court today disposes of the federal leg of the Ohio Supreme Court's decision strengthens my impression that the Ohio Supreme Court saw its rule as a measure made for Ohio, designed to reinforce in that State the right of the people to be secure against unreasonable searches and seizures.

The Ohio Supreme Court's syllabus and opinion, however, were ambiguous. Under Long, the existence of ambiguity regarding the federal or state law basis of a state court decision will trigger this Court's jurisdiction. Long governs even when, all things considered, the more plausible reading of the state court's decision may be that the state court did not regard the Federal Constitution alone as a sufficient basis for its ruling. Compare Arizona v. Evans, 514 U. S. ___, ___ (1995) (slip op., at 4-7), with id., at ___ (slip op., at 10-11) (Ginsburg, J., dissenting).

It is incumbent on a state court, therefore, when it determines that its State's laws call for protection more complete than the Federal Constitution demands, to be clear about its ultimate reliance on state law. Similarly, a state court announcing a new legal rule arguably derived from both federal and state law can definitively render state law an adequate and independent ground for its decision by a simple declaration to that effect. A recent Montana Supreme Court opinion on the scope of an individual's privilege against self incrimination includes such a declaration:

"While we have devoted considerable time to a lengthy discussion of the application of the Fifth Amendment to the United States Constitution, it is to be noted that this holding is also based separately and independently on [the defendant's] right to remain silent pursuant to Article II, Section 25 of the Montana Constitution." State v. Fuller, ___Mont. ___, ___, 915 P. 2d 809, 816, cert. denied, 519 U. S. ___ (1996).

An explanation of this order meets the Court's instruction in Long that "[i]f the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [this Court] will not undertake to review the decision." Long, 463 U. S., at 1041.

On remand, the Ohio Supreme Court may choose to clarify that its instructions to law enforcement officers in Ohio find adequate and independent support in state law, and that in issuing these instructions, the court endeavored to state dispositively only the law applicable in Ohio. See Evans, 514 U. S., at ___ (slip op., at 8-12) (Ginsburg, J., dissenting). To avoid misunderstanding, the Ohio Supreme Court must itself speak with the clarity it sought to require of its State's police officers. The efficacy of its endeavor to safeguard the liberties of Ohioans without disarming the State's police can then be tested in the precise way Our Federalism was designed to work. See, e.g., Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N. Y. U. L. Rev. 1, 11-18 (1995); Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379, 392-396 (1980).

Note
Formerly, the Ohio Supreme Court was "reluctant to use the Ohio Constitution to extend greater protection to the rights and civil liberties of Ohio citizens" and had usually not taken advantage of opportunities to "us[e] the Ohio Constitution as an independent source of constitutional rights." Arnold v. Cleveland, 67 Ohio St. 3d 35, 42, n. 8, 616 N. E. 2d 163, 168, n. 8 (1993). Recently, however, the state high court declared: "The Ohio Constitution is a document of independent force. . . . As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups." Id., at 35, 616 N. E. 2d, at 164 (syllabus).