June 16, 2006
I share office space with six other lawyers, and one of the consequences of being pretty good at research is that I'm the guy they'll come to for resolution of weird questions. Several times a week, one of them will trudge into my office and tell me, "You know, there's got to be a case that says..."
So, that's going to be the new Friday Feature at the Briefcase. Saturdays is for the Weekly Roundup, Sundays is for the Rant, and now Fridays will be for There's Gotta Be a Case. (Note to several readers: your suggestion for another weekly feature at the Briefcase is appreciated, but Dirty Picture Wednesday is pretty much of a nonstarter.)
So, let's get to it. There's gotta be a case that says:
An aider and abettor can't be convicted of a greater offense than the principal. No, there isn't. In fact, there's an 1889 Ohio Supreme Court case, State v. Goins, 46 O.St. 467, which says the exact opposite, and there are several court of appeals cases along the same lines. The theory is that each case -- principal and abettor -- has to be decided on its own merits. There is a case, though, out of the 8th District from 1981, State v. Cartellone, 3 Ohio App. 3d 145, which held that an accomplice couldn't be convicted of any more counts than the principal offender was.
You can't be convicted of obstructing justice for hindering an illegal search. There is: in 1991, the 4th District, in State v. Howard, 75 Ohio App. 3d 760, held that a defendant couldn't be convicted of obstructing justice for refusing to permit the police to enter his home to conduct a warrantless search for a suspect, even though it turned out the suspect was in the home at the time. And keep in mind that if the charge is obstructing official business, the defendant is in even better shape, because that statute requires the state to prove that the defendant was "without privilege" to do the act hampering the investigation, and the 4th Amendment clearly gives a privilege to refuse an illegal search.
If the police wait more than the 3 days provided in Crim. Rule 41 to execute a warrant, the search is no good. Nope. There's no Ohio case law on this point, but the Federal case law interpreting their rule (which is identical, except for providing a 10-day time limit) holds that the evidence can't be suppressed unless the defendant shows prejudice, i.e., that probable cause grew stale after the time period specified in the rule had elapsed. Considering that there are cases which hold that a ten-month delay in executing the warrant wasn't unreasonable, good luck on that.
Speaking of excluding evidence, the US Supreme Court ruled yesterday that the exclusionary rule wasn't appropriate for evidence seized in violation of the "knock and announce" requirement the Court had previously said was part and parcel of the 4th Amendment. The decision can be found here, and for those of you unwilling to slog through Justice Scalia's opinion, the story on the case from the New York Times can be found here. Although I've generally found the Times reports on Supreme Court decisions to be top-notch, after reading Scalia's opinion, I think the reporter's concerns about the continued vitality of the exclusionary rule are slightly exaggerated. But only slightly; with another conservative judge or two on the Court, I could envision a situation where the exclusionary rule is abolished.