Thread by @OrinKerr

LIKE A LAW SCHOOL EXAM HYPO: If one officer orders a suspect out of car and opens the door to help him out, and a 2nd officer then peers in via the open door and sees drugs, has a 4A search occurred? Ohio SCT rules, 4-2, that there was no search.. supremecourt.ohio.gov/rod/docs/pdf/0… #N

The majority treats the two officers as separate. The first officer didn't conduct a search because, although he opened the door, he lacked the intent to obtain info. The second officer had the intent, but no act. Treating each separately, no officer committed a search.

The dissent says you can't add a subjective intent test to the 1st officer's act, and that it was objectively a search — and then (if I am reading it correctly) suggests perhaps you should look at the conduct of the officers together, not individually.

Lots of thoughts on this one. First, the idea that the is no intent element of searches is wrong, I think. There are a bunch of subjective inquiries in 4A law, and the intent requirement for searches and seizures is one of them. See here: papers.ssrn.com/sol3/papers.cf…

Granted, that doesn't answer whether the intent element was satisfied here. Is intent to get a person out of the car an intent to obtain information? Somewhat tricky: Do you look in isolation, or as part of the broader goal of the traffic stop?

Second, I think it's probably right that you should treat the intent requirement as officer by officer, at least unless there was some shared scheme (which would make the one person's act something they both/all intended).

Off the top of my head, my inclination is to be with the majority for a different reason. Under Mimms, a suspect can be ordered out of the car without suspicion. It's hard for the person to get out of the car without opening the door.

So the door is going to open either way, as the majority notes. A door-opening seems to be inherent in what Mimms approved. And I assume the officer could enforce a Mimms order, which would require the officer to open the door.

Given that, I would tend to think that, if the officer made that order around that time, a driver's side front door opening is part of the Mimms order process. (I can see arguments that Mimms is wrong, but I'm accepting US Supreme Court caselaw as fixed.)

Anyway, just a tentative thought; I don't have strong or fixed feelings about that one. Cool issue, though.