Mimesis Law
13 December 2019

Ohio Courts Follow Meth Lab Law, Not The Constitution

June 3, 2016 (Mimesis Law) — So there’s this language you read from time to time in court opinions. “The Constitution,” yada, yada, yada, “shall be the supreme law of the land.” What that means, in theory, is that if there’s a conflict between a law and a constitutional provision, we follow the Constitution.

For instance, if the State passes a law that says “any insult to a police officer shall constitute ‘fighting words,’” that doesn’t mean that courts just read the statute and check their discretion at the door. You can’t legislate a constitutional finding.

Unless you’re Ohio, who did just that when it created this rule:

(A) If a law enforcement officer has probable cause to believe that particular premises are used for the illegal manufacture of methamphetamine, for the purpose of conducting a search of the premises without a warrant, the risk of explosion or fire from the illegal manufacture of methamphetamine causing injury to the public constitutes exigent circumstances and reasonable grounds to believe that there is an immediate need to protect the lives, or property, of the officer and other individuals in the vicinity of the illegal manufacture.

So let’s say you’re a police officer and you suspect that a home contains methamphetamine. There are a lot of facts that might provide probable cause—discarded and discolored propane tanks, the smell of acetone, suspicious character coming in and out at all hours of the night. You want to go ahead and look inside. Now in most states, you would either get a search warrant or conduct a knock and talk and claim that the owner gave you permission to search.

But in Ohio, you can just assume that the meth lab was just about to blow up, search the place, and no court will gainsay you. As Russ Bensing points out in his blog, this can be a real problem, as in State v. Maust.

In Maust, the defendant was living with (and possibly abusing) his “medically ill” father. The defendant’s grandfather, worried about the situation, called the police to intercede. Police had signed permission to search the house from the father and grandfather, but no particular permission to search Maust’s room.

So they tell Maust to step out of the room, arrest him (he had two warrants outstanding), and then immediately perform a “protective sweep,” which is a specialized warrantless search so that officers can confirm no one is hiding in a closet getting ready to shoot them as they calmly walk the arrestee to the patrol car.[1]

While they’re walking around the room “looking for people,” the police spot some stuff that seems consistent with a meth lab. Interestingly, once police realized that the place might be dangerous (the exact justification for a protective sweep), they immediately backed out of the room (exactly what people do when they think something might be dangerous).

Now you would think at this point that police would go ahead and get a warrant. They’ve got probable cause in spades, after all. But, relying on Ohio law, they instead call in a hazmat team and the fire department to sweep the room for contraband to make sure it isn’t dangerous and they find, unsurprisingly, some meth.

Under these circumstances, a court could have looked carefully at the circumstances and figured out if the meth lab was by itself, an exigency. For instance, was the “one-pot” method that the defendant was using to brew his meth any more or less dangerous than usual? If the fire department was being called in, was there time to also get a warrant?

But instead, the court just referred to the statute and shrugged its shoulders. If the evidence was good enough to show there was a meth lab, it was good enough to dispense with the warrant requirement.

Laws like these are dangerous precisely because they encourage courts to abdicate their role in looking at the evidence on its own. As one member of the Supreme Court of Ohio put it:

[T]he General Assembly cannot legislate what constitutes exigent circumstances with respect to methamphetamine labs, any more than it can direct a court of law as to what constitutes exigent circumstances in some other context.

And of course, there are plenty of times that seeing what might be a meth lab won’t be “exigent,” requiring immediate action. If officers knock on the front door of a rural home and find the owner on vacation, the fact that the house reeks of nail-polish removal shouldn’t, by itself, justify knocking down the door in a spurt of testosterone.

Laws like Ohio’s create a dangerous precedent. There’s a reason we have a separation of powers. We don’t want legislators judging from the chambers any more than we want judges litigating from the bench. However guilty Maust was (and it doesn’t look like a hard decision on that front) he was entitled to something more than a shrug when authorities decided not to get a warrant.


[1] The defendant didn’t raise this, but the protective sweep probably doesn’t pass constitutional muster either. You can’t dig around looking for a hidden assailant without at least some evidence—a cough from the closet or an extra car out front, for instance, that there are other people to find.

4 Comments on this post.

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  • Jeff Gamso
    3 June 2016 at 10:32 am - Reply

    Not to be nitpicky, I say being nitpicky, but Armbruster is an intermediate appellate court in Ohio, not the Ohio Supreme Court.

    That’s not to suggest that OSC would have found anything wrong with the statute, but Armbruster didn’t even seek discretionary review there, so we don’t know.

    • Andrew Fleischman
      3 June 2016 at 10:40 am - Reply

      Damn. Thanks for catching that. Not at all nitpicky, and I hope any time I write about Ohio that you chime in.

  • Richard G. Kopf
    3 June 2016 at 4:08 pm - Reply


    Do you know how the law came into being? Did anyone think to ask the Ohio Attorney General for an opinion prior to enactment?

    Although I was born and raised in Toledo, and much of my family lives in northern Ohio (Cleveland and related environs) I don’t much pay attention to Ohio except for (1) Jeff Gamso or (2) while wishing that Woody Hayes would return to coach the OSU football team. (I loved Woody especially because he slugged Clemson’s backup nose guard,Charlie Bauman,who had intercepted the ball against OSU in the 1978 Gator Bowl.)

    All the best.


    • Jeff Gamso
      3 June 2016 at 6:33 pm - Reply

      Ohio has no formal legislative history. A quick look at what is readily available indicates that the originally introduced bill (Senate Bill 53, 126th General Assembly (2005-2006)), did not include that provision but that it was added while the bill was in the Senate Judiciary Committee. Trying to dig out how that happened is maybe possible but beyond what I have the time to try and do right now.

      The formal language of bills is typically provided by the Legislative Service Committee which also does bill summaries and “analysis.” There’s no obvious indication that anyone raised or even considered a constitutional question – though it’s certainly possible that someone (perhaps OACDL or OPD) did at a Judiciary Committee Hearing.

      My guess, and it’s no more than a guess, that any question was blown off without any actual investigation or even serious consideration.