State v. Yates , 20 Ohio Op. 3d 236 ( 1981 )

Potter, J.,

dissenting. The majority does not find the egregious state conduct shocking or offensive; suffice it to say I do and cannot judicially condone it. Historically the exclusionary rule is invoked where evidence is obtained in violation of the Fourth Amendment, where confessions or identification testimony are obtained in violation of the Fifth and Sixth Amendments and where, as in the case subjudice, evidence is obtained by methods which so violate concepts of fundamental fairness as to also constitute a violation of due process. The United States Supreme Court in United States v. Lovasco (1977), 431 U. S. 783, at page 790, stated the following applicable legal principle:

“We are to determine only whether the action complained of* * * violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’*** and which define ‘the community’s sense of fair play and decency’ * * *.”

The Court of Appeals in the case sub judice phrased the violation of due process as follows:

“We agree with the trial court’s conclusion that the County Welfare Department promised welfare recipients who signed the release ‘that it would not utilize the information in proceedings outside of the Welfare Department.’ We find that the County Welfare Department’s subsequent transfer of the information to the Cuyahoga County Prosecutor’s Office violates fundamental conceptions of justice and offends the community’s sense of fair play and decency, thereby violating the due process clause of the United States Constitution.”

It has not been challenged that the conduct of the welfare department was not state action. The fact that the state has or had a constitutionally accepted procedure to obtain evidence does not authorize the use of a constitutionally offensive procedure. While I do not condone the action of the defendants, nevertheless I look first to the state to be fair in its dealing with its citizens.⁵ It was not, and it cannot now take advantage of its own duplicity. I would therefore affirm.

W. Brown, J., and Locher, J., concur in the foregoing dissenting opinion.

5 See Mapp v. Ohio (1961), 367 U. S. 643, at 659, 660, as Mows:

“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U. S. 438, 485 (1928): ‘Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example .... If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ ”

“The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest.”