State v. Sears , 2020 Ohio 4654 ( 2020 )

[Cite as State v. Sears, 2020-Ohio-4654.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 19AP-372
v. : (C.P.C. No. 18CR-2374)
Randolph M. Sears, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 29, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellant.
On brief: Yeura R. Venters, Public Defender, and Ian J.
Jones, for appellee.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from a decision and entry of the
Franklin County Court of Common Pleas that granted the motion to suppress filed by
defendant-appellee, Randolph M. Sears. For the following reasons, we affirm the trial court
judgment.
I. Facts and Procedural History
{¶ 2} On December 23, 2017, Columbus Police Officers were dispatched to a
residence on Atcheson Street regarding a report of a stolen white vehicle and that the
suspect had an outstanding felony warrant for a probation violation. The officers were
given a description of the suspect as an African American male wearing a gray hoodie and
his approximate height and weight. The officers knew they were looking for Alvie Fryar and
they were able to view a mugshot picture of the suspect briefly while traveling to the
No. 19AP-372 2
location. Officers Alexander Rilling and David Gitlitz were the first officers to arrive. Officer
Rilling testified that, as they were in the alley behind the house, he saw the stolen car and
three men in the back yard. Officer Rilling stated he exited his vehicle and immediately
approached the man in the gray hoodie, Sears, but Officer Rilling believed the man was the
suspect, Alvie Fryar. Officer Rilling did not recall whether he spoke to the men or asked
them for identification. Officer Rilling did tell Sears to put his hands behind his back.
Officer Rilling stated that almost "immediately" Sears told the officers he had a gun and
Officer Gitlitz recovered the gun from the front pocket of Sears' hoodie. (Tr. at 11.) The
officers then placed Sears in the back of the cruiser to verify his identity. Officer Rilling
testified they determined that Sears was not Fryar but they believed the two men looked
alike, although Officer Rilling commented that Sears looks younger than Fryar.
{¶ 3} Officers Gitlitz and Matthew Jenkins were wearing body videocams that day
and the footage was introduced as State's Exhibit B. Officer Rilling testified regarding the
events captured on tape. Officer Jenkins also testified he responded to the stolen vehicle
call. He knew the suspect's name, Alvie Fryar, and had a prior mugshot of him, along with
the report number for the stolen vehicle. Officer Jenkins realized the officers had arrested
someone other than Fryar, however, the officers subsequently did arrest Fryar at the same
location.
{¶ 4} Sears testified he was at a Christmas party at his brother's house and was
standing in the back yard when officers arrived. Sears testified that, as he approached,
Officer Rilling asked his name and he replied "Randolph Sears." (Tr. at 34.) Officer Rilling
then asked him who was driving the white car and Sears told them the man was inside the
house. Sears believed Officer Rilling was going to walk by him, but the officer then pulled
Sears' hands behind his back and asked if he had any weapons. On the video, Sears can be
seen telling the officers he had a gun. Sears stated he told the officers his name as they
approached.
{¶ 5} Sears was indicted on one count of carrying a concealed weapon, a violation
of R.C. 2923.12, and one count of having a weapon under a disability, a violation of R.C.
2923.13. Sears filed a motion to suppress. After a hearing, the trial court determined the
arrest of Sears was not objectively reasonable in light of the totality of the circumstances
and granted the motion to suppress.
No. 19AP-372 3
II. Assignments of Error
{¶ 6} The state appeals and assigns the following four assignments of error for our
review:
[I.] THE TRIAL COURT ERRED WHEN IT GRANTED THE
MOTION TO SUPPRESS DESPITE CONCEDING THAT A
VALID TERRY STOP COULD HAVE TAKEN PLACE.
[II.] THE TRIAL COURT ERRED IN APPLYING A LEAST-
INTRUSIVE-MEANS APPROACH TO THE FOURTH
AMENDMENT QUESTION OF WHETHER THE POLICE
COULD ARREST DEFENDANT BASED ON PROBABLE
CAUSE.
[III.] THE TRIAL COURT ERRED IN RESTRICTING THE
MISTAKEN-IDENTITY DOCTRINE TO CASES IN WHICH
THE EVIDENCE WILL BE USED AGAINST THE INTENDED
TARGET OF THE ARREST.
[IV.] THE TRIAL COURT ERRED WHEN IT FAILED TO
APPLY THE GOOD-FAITH EXCEPTION.
III. Discussion
A. Standard of review
{¶ 7} An appellate court's review of a trial court's decision on a motion to suppress
presents a mixed question of law and fact. State v. Castagnola, 145 Ohio St.3d 1, 2015-
Ohio-1565, ¶ 32, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The
trial court is the finder of fact in evaluating a motion to suppress; therefore, it is in the best
position to resolve factual questions and evaluate the credibility of witnesses. Burnside at
¶ 8. The trial court's findings of fact must be accepted by an appellate court if they are
supported by competent, credible evidence. Id. "Accepting these facts as true, the appellate
court must then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard." Id.B. Constitutional protections
{¶ 8} The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
No. 19AP-372 4
supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized." The Ohio Constitution includes a very similar provision.
Article I, Section 14 Ohio Constitution.
{¶ 9} "The touchstone of the Fourth Amendment is reasonableness." Florida v.
Jimeno, 500 U.S. 248, 250 (1991), citing Katz v. United States, 389 U.S. 347, 360 (1967).
"The Fourth Amendment does not proscribe all state-initiated searches and seizures; it
merely proscribes those which are unreasonable." Id., citing Illinois v. Rodriguez, 497 U.S.
177 (1990). Both the Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution prohibit the government from conducting warrantless
searches and seizures as per se unreasonable, unless an exception applies. Katz at 357.
{¶ 10} "When a motion to suppress evidence obtained in a warrantless search is
filed, the state has the burden of establishing that one of the exceptions applies." State v.
Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 39. See also Columbus v. Ellyson,
10th Dist. No. 05AP-573, 2006-Ohio-2075, ¶ 5, citing Athens v. Wolf, 38 Ohio St.2d 237,
241 (1974) ("Upon a motion to suppress evidence on Fourth Amendment grounds, the state
has the burden of showing, by at least a preponderance of the evidence, that the search
and/or seizure fits within one of the defined exceptions to the Fourth Amendment's
requirement of a warrant.").
{¶ 11} "An appellate court reviews the propriety of an investigative detention in light
of the totality of the surrounding circumstances." Columbus v. Beasley, 10th Dist. No.
17AP-629, 2019-Ohio-719, ¶ 44, citing State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph
one of the syllabus, approving and following State v. Freeman, 64 Ohio St.2d 291 (1980),
paragraph one of the syllabus.
C. Analysis
{¶ 12} The trial court determined the officers would have been permitted to conduct
a Terry stop, based on their reasonable, articulable suspicion that Sears had committed
receiving stolen property and had an outstanding warrant. Terry v. Ohio, 392 U.S. 1, 19
(1968). However, the trial court found Officer Rilling did not conduct a limited pat-down
or briefly investigate suspected criminal behavior but, rather, immediately pulled Sears'
arms behind his back, began a pat-down and asked him if he had any weapons. Thus, the
trial court found that at that time, instead of a Terry stop, the encounter became an arrest.
No. 19AP-372 5
The trial court then found the arrest was not objectively reasonable in light of the totality of
the circumstances because the officers did not conduct any investigation and cross-check
the information regarding Sears' identity prior to making an arrest.
{¶ 13} In the first assignment of error, the state argues the trial court erred when it
granted the motion to suppress despite conceding that a valid Terry stop could have taken
place. Sears argues the state is arguing for the first time on appeal that the arrest was
permissible under Terry and, generally, issues not raised by a party during a suppression
hearing cannot be raised for the first time on appeal. State v. Bing, 134 Ohio App.3d 444,
449 (9th Dist.1999). The state argued to the trial court that given the totality of the
circumstances, the arrest, search and detention of Sears was based on a reasonable mistake
of the officers believing Sears was Fryar. In response, the state contends the argument is
permissible for the first time because the trial court addressed the issue. The state contends
that since the trial court found the officers would have been permitted to conduct a Terry
stop based on their reasonable, articulable suspicion that Sears had committed receiving
stolen property and had an outstanding warrant, such Terry stop would have led to the
same discovery of the evidence.
{¶ 14} Pursuant to Terry, an investigatory stop and a frisk or pat-down for weapons
may be conducted without violating the Fourth Amendment's ban on unreasonable
searches and seizures if two conditions are met. First, the investigatory stop must be lawful.
A stop is lawful where an investigating officer "reasonably suspects that the person
apprehended is committing or has committed a criminal offense." Arizona v. Johnson, 555
U.S. 323, 326 (2009). The second condition requires the investigating officer to "reasonably
suspect that the person stopped is armed and dangerous" and if so, then the officer may
conduct a pat-down for weapons. Id. at 327. Under the Fourth Amendment, a seizure
occurs "[w]henever a police officer accosts an individual and restrains his freedom to walk
away." Terry at 16. "[W]hen the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has
occurred." Id. at 19, fn. 16.
{¶ 15} However, despite the fact the trial court found the officers could have
conducted a valid Terry stop based on their reasonable, articulable suspicion that Sears had
No. 19AP-372 6
committed receiving stolen property and had an outstanding warrant, the trial court found
the officers did not conduct a Terry stop but proceeded directly to arrest Sears.
{¶ 16} "An arrest occurs when the following four requisite elements are involved:
(1) an intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual
or constructive seizure or detention of the person, and (4) which is so understood by the
person arrested." Beasley at ¶ 58, citing State v. Darrah, 64 Ohio St.2d 22, 26 (1980).
" '[A]n officer need not state, "You are under arrest." ' " Id., quoting Columbus v. Clark,
10th Dist. No. 14AP-719, 2015-Ohio-2046, ¶ 34, quoting State v. Carroll, 162 Ohio App.3d
672, 2005-Ohio-4048, ¶ 14 (1st Dist.). " 'Rather, arrest "signifies the apprehension of an
individual or the restraint of a person's freedom in contemplation of the formal charging
with a crime." ' " Id., quoting Clark at ¶ 34, quoting Darrah at 26. "Ultimately, 'the point
at which an arrest occurs depends on the circumstances of the particular case.' " Id. at ¶ 59,
quoting Columbus v. Galang, 10th Dist. No. 02AP-1441, 2003-Ohio-4506, ¶ 16, citing State
v. Finch, 24 Ohio App.3d 38, 39 (12th Dist.1985).
{¶ 17} We recognize that officers with probable cause to arrest a suspect who
mistakenly arrest an individual matching the suspect's description, does not render the
seizure or an accompanying search of the arrestee unlawful. See Hill v. California, 401 U.S.
797, 802-05 (1971). However, "the mistakes must be those of reasonable men." Brinegar
v. United States, 338 U.S. 160, 176 (1949). Thus, a " 'police officer's mistake of fact will not
lead to the suppression of evidence where the mistake was "understandable" and a
reasonable response to the situation facing the police officer.' " State v. Kinzy, 7th Dist. No.
09 MO 7, 2010-Ohio-6499, ¶ 23, quoting State v. Fain, 9th Dist. No. 18306 (Jan. 21, 1998),
and citing Hill at 804 (officer mistakenly believed driver was Dwayne Fain, whose license
was indefinitely suspended, rather than the true driver whose last name was also Fain). If
the officer uses physical force or a show of authority to restrain a person's liberty so that a
reasonable person would not feel free to decline the officer's requests or otherwise
disengage from the encounter, such can make an encounter non-consensual. United States
v. Mendenhall, 446 U.S. 544, 553-54 (1980).
{¶ 18} In this case, the trial court determined the officers' mistake was not
reasonable. The officers immediately began to arrest Sears by pulling his arms behind his
back, conducting a pat-down and asking him if he had weapons. In addition, the trial court
No. 19AP-372 7
watched the officers' body videocam footage and determined Sears believed he was being
arrested at the time. During the search incident to the arrest, Sears volunteered that he had
a gun in his pocket which became the basis of the charges against him. The trial court found
the facts were similar to Fettes v. Hendershot, S.D.Ohio No. 06-CV-429 (Sept. 8, 2008),
rev'd in part and remanded, Fettes v. Hendershot, 375 Fed.Appx. 528 (6th Cir.2010). In
Fettes, the court stated:
Under the reasonable mistake test, an officer's good faith is
insufficient to cleanse an otherwise unconstitutional arrest.
See Yancey v. Carroll Cty., 876 F.2d 1238, 1243 (6th
Cir.1989). Rather, the Court must determine whether the
arrest was objectively reasonable in light of the totality of the
circumstances.
{¶ 19} As Officer Rilling approached Sears, Sears told him his name was Randolph
Sears and offered his identification in his pocket multiple times. The officers had the name
and a photograph of the suspect, but they failed to determine whether Sears was actually
the suspect, Fryar. The trial court found it unreasonable that given there were three men
in the back yard of the location that matched the general description of Fryar, the officers
did not hesitate and approached Sears. The trial court found it unreasonable that the
officers did not engage in a limited investigation and verify Sears' identity before arresting
him.
{¶ 20} The trial court determined Sears was credible and noted that "[d]efendant
told Officer Rilling his name and repeatedly requested that the Officers check his
identification; the Officers just failed to do so." (Decision at 12.) The court further found
"the Officers arrested Sears within seconds and even after he told them his name and
offered to provide identification." (Emphasis sic.) (Decision at 14.) We are required to
accept the trial court's findings of fact if they are supported by competent, credible
evidence. Here, we find the trial court's conclusions are supported by competent, credible
evidence as Sears' testimony supports the finding that the arrest occurred after Sears told
the officers his name. Therefore, we cannot say the trial court erred in concluding the
officers' mistake was not objectively reasonable under all the facts of the case. Despite the
fact the trial court stated that the officers could have conducted a Terry stop, the trial court
found a Terry stop did not occur but, rather, found that the officers immediately moved to
arrest Sears. The state attempts to argue that if the officers had conducted a Terry stop,
No. 19AP-372 8
the stop would have led to the discovery of the weapon. However, given the facts in this
case support that the officers did not conduct a Terry stop but moved immediately to arrest
Sears, the state cannot argue fictional facts to reach a different outcome
{¶ 21} Moreover, Sears argues the trial court did not set forth that the officers could
have conducted a Terry search and found the weapon while doing so. The trial court stated
"[d]uring the course of a Terry stop, the officers would have been permitted to conduct a
limited pat-down of Defendant, if they believed he was armed and dangerous" following
Terry. (Decision at 10.) Here, the record does not demonstrate the officers suspected Sears
was armed and dangerous until Sears told them he had a weapon. The state's first
assignment of error is overruled.
{¶ 22} In its second assignment of error, the state contends the trial court erred in
applying a least-intrusive-means approach to the Fourth Amendment question of whether
the officers could arrest Sears based on probable cause. The state contends the trial court
requiring a less-intrusive alternative than arrest does not mean the challenged action
violated the Fourth Amendment because reasonableness under the Fourth Amendment
does not require employing the least intrusive alternative, citing Bd. of Edn. of Indep.
School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 837 (2002).
{¶ 23} Although the state characterizes the trial court's decision as one requiring the
least-intrusive alternative, the trial court's determination was actually that the alternative
the officers used was not reasonable under the totality of these circumstances. The trial
court properly considered whether the officers made an objectively reasonable mistake in
arresting Sears and found the mistake was not reasonable under these circumstances. The
trial court did not apply an incorrect test or standard.
{¶ 24} Sears argues the facts of this case are similar to In re [V.W.], 10th Dist. No.
01AP-563 (Dec. 27, 2001). In V.W., police officers observed a white substance in the
appellant's mouth and then "shook appellant's jacket and a bag, of what appeared to be
crack, fell out from the bottom of appellant's jacket." Id. This court found the observation
of a substance in the appellant's mouth gave officers a reasonable and articulable suspicion
of criminal activity to warrant a Terry stop and an investigation but did not provide
probable grounds for an arrest. Finding no probable cause to arrest, this court found the
arrest invalid. Those facts are similar to the facts of this case in which the arrest was not
No. 19AP-372 9
based on a reasonable mistake and was invalid. The state's second assignment of error is
overruled.
{¶ 25} In its third assignment of error, the state contends the trial court erred in
restricting the mistaken-identity doctrine to cases in which the evidence will be used against
the intended target of the arrest. The trial court distinguished Hill by finding that the
evidence the officers used in Hill was against the defendant, Hill, not the mistaken arrestee
Miller. However, in this case, the evidence produced in the search was used against the
mistaken arrestee Sears, in separate charges.
{¶ 26} However, the court determined in Hill that the arrest based on a mistaken
identity was valid and therefore, "neither the seizure nor an accompanying search of the
arrestee would be unlawful." Heien v. N. Carolina, 574 U.S. 54, 61 (2014). But in this case,
the trial court determined that the arrest based on a mistaken identity was not reasonable
and valid, thus, the seizure and accompanying search of the arrestee were unlawful. With
an unreasonable arrest, the trial court properly determined the evidence should be
suppressed and not used against Sears. The state's arguments fail to acknowledge this
finding. The state's third assignment of error is overruled.
{¶ 27} By its fourth assignment of error, the state contends the trial court erred
when it failed to apply the good-faith exception. The exclusionary rule operates to bar the
state's use of evidence obtained in violation of a person's Fourth Amendment rights. Weeks
v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that
"all evidence obtained by searches and seizures in violation of the Constitution is, by that
same authority, inadmissible in a state court"). The exclusionary rule "is a judicially created
remedy designed to safeguard Fourth Amendment rights generally through its deterrent
effect, rather than a personal constitutional right of the party aggrieved." United States v.
Calandra, 414 U.S. 338, 348 (1974). However, there are exceptions to the application of
the exclusionary rule, one of which is the good-faith exception. United States v. Leon, 468
U.S. 897 (1984), and adopted by the Supreme Court of Ohio in State v. Wilmoth, 22 Ohio
St.3d 251 (1986).
{¶ 28} The good-faith exception to the exclusionary rule provides that "the
exclusionary rule should not be applied to bar use of evidence obtained by officers acting in
objectively reasonable reliance on a search warrant issued by a detached and neutral
No. 19AP-372 10
magistrate but ultimately found to be unsupported by probable cause." State v. Hoffman,
141 Ohio St.3d 428, 2014-Ohio-4795, ¶ 29, citing Leon at 918-23, 926. The good-faith
exception is supported by the rationale that, generally, "when an officer acting with
objective good faith has obtained a search warrant from a judge or magistrate and acted
within its scope. In most such cases, there is no police illegality and thus nothing to deter."
Leon at 920-21.
{¶ 29} In State v. Wintermeyer, 10th Dist. No. 16AP-381, 2017-Ohio-5521, ¶ 38, this
court stated that "underlying Leon and its progeny is the general principle that the
exclusionary rule's purpose, i.e. deterrence of police conduct in violation of the Fourth
Amendment, is not achieved by punishing an officer for acting in objectively reasonable
reliance on information or authority that, unbeknownst to the officer, was erroneous." In
this case, Officer Rilling was not acting in objectively reasonable reliance on information
that later was revealed to be erroneous. Rather, he personally made the mistake without
verifying Sears' identity. In State v. Simon, 119 Ohio App.3d 484, 488 (9th Dist.1997), the
Ninth District found that "[i]t is significant that the mistake * * * was not made by a third
person, but by the officers themselves." Such conduct is precisely what the exclusionary
rule is meant to deter. Herring v. United States, 555 U.S. 135, 144 (2009) ("To trigger the
exclusionary rule, police conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid
by the justice system."). Therefore, because the officers were not acting in objectively
reasonable reliance on erroneous information, we conclude the good-faith exception is
inapplicable. See also State v. Dickman, 10th Dist. No. 14AP-597, 2015-Ohio-1915, ¶ 26;
State v. Forrest, 10th Dist. No. 11AP-291, 2011-Ohio-6234, ¶ 17-18.
{¶ 30} The state makes several arguments as to why the good-faith exception applies
in this case. However, in Dickman, this court explained why the good-faith exception is
inapplicable to these facts:
[T]he state cites broad language from Davis [v. United States,
564 U.S. 229, 131 S.Ct. 2419 (2011)] regarding the deterrent
aims of the Fourth Amendment as justification for urging us
to go further and hold that the "good faith exception" should
act as a balancing test in all cases. The state urges us to give
broad application to what it calls the "Herring–Davis test,"
citing the windfall to defendants when the exclusionary rule is
applied. (State's Brief, 49.) However, we have interpreted
No. 19AP-372 11
that an exception to the exclusionary rule as enunciated in
[United States v.] Leon [468 U.S. 897 (1984)] and recognized
in Davis is that, error for applying the exception to the rule
" 'rests with the issuing magistrate, not the police officer, and
"punish[ing] the errors of judges" is not the office of the
exclusionary rule.' " State v. Thomas, 10th Dist. No. 14AP-185,
2015-Ohio-1778, ¶ 43, quoting Davis at 2428. We explained
further in Thomas that Ohio courts have declined to apply the
exception to the rule "in cases in which officers, conducting
warrantless searches, relied on their own belief that they were
acting in a reasonable manner, as opposed to relying upon
another's representations." Id. at ¶ 46, citing State v. Forrest,
10th Dist. No. 11AP-291, 2011-Ohio-6234. We continue to
recognize and hold that " 'Leon's good-faith exception applies
only narrowly, and ordinarily only where an officer relies, in
an objectively reasonable manner, on a mistake made by
someone other than the officer.' " Id. at ¶ 47, quoting United
States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006). * * *
Consistent with Thomas, we find that there is no good-faith
exception here.
The exclusionary rule has existed for a century to broadly
protect our rights to be free from unlawful search and seizure.
We find no basis for applying a good-faith exception under
these admittedly subjective circumstances. " '[G]ood faith on
the part of the arresting officers is not enough.' " [Beck v.
Ohio, 379 U.S. 89, 97 (1964)], quoting [Henry v. United
States, 361 U.S. 98, 102 (1959]. If subjective good faith
created an exception to the exclusionary rule, enforcement of
the Fourth Amendment for people to be "secure in their
persons, houses, papers, and effects," would be at the
discretion of the police. Id.Id. at ¶ 26.
{¶ 31} Dickman cites and follows State v. Thomas, 10th Dist. No. 14AP-185, 2015-
Ohio-1778, in which this court recognized that Ohio courts, including this court, have
declined to apply the Leon good-faith exception in cases in which officers, conducting
warrantless searches, relied on their own belief that they were acting in a reasonable
manner, as opposed to relying on another's representations. Thus, this court has repeatedly
found the good-faith exception does not apply where an officer does not rely, in an
objectively reasonable manner, on a mistake made by someone other than the officer. Thus,
No. 19AP-372 12
the good-faith exception does not apply to these facts. The state's fourth assignment of
error is overruled.
IV. Conclusion
{¶ 32} For the foregoing reasons, on the facts of this case, we overrule the state's four
assignments of error and affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
BRUNNER and NELSON, JJ., concur.
NELSON, J., concurring in judgment only.
{¶ 33} I agree with the majority that the trial court found, as the evidence entitled it
to do, that the arrest of Mr. Sears was not based on a reasonable mistake and was not
justified. I consequently agree that the trial court's judgment should be affirmed (even
while noting that had the identification and resulting arrest been found to be reasonable,
evidence would not properly be excluded regardless of against whom it was offered).
{¶ 34} Indeed, it is because the trial court found the police conduct unreasonable
that the good faith exception is inapplicable here. I respectfully suggest that is all we need
say on that score, and I would simply leave exposition of the good faith exception to other
cases in which it might have greater relevance.