Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

June 23, 2006

Questions that came up this week in the office:

Does a passenger have standing to object to the stop and search of a car?   Yes and no.  He has standing to object to the stop, since it's an invasion of his privacy, but not to a search of the car, unless he's the owner or driving it with the owner's permission, according to State v. CarterA good local case on this is State v. Hill, which holds the same way; it also has a nice result and deals with a few other issues, like filing a motion to suppress out of rule and whether the motion meets the particularity requirement, in a defense-positive way.  If you show it to the trial court, though, you might want to leave out Judge Gallagher's dissent, because he probably gets the better of it on several of those issues.

If you have separate trials, can you get a co-defendant's exculpatory statement admitted under the declaration against interest hearsay exception?  Not automatically; the rule, 804(B)(3), specifically provides that it can't be admitted unless "corroborated by circumstances clearly indicating its trustworthiness."  One of the best cases to have here is the 11th District's decision in State v. Cohen, 1988 Ohio App. LEXIS 1618.  It reversed a murder conviction for refusal to admit the co-defendant's statement, and contains an excellent analysis of the issue and the various considerations that should go into the determination of trustworthiness.

Can the judge increase your sentence if you violate probation above what she gave you when she first sentenced you?  No.  The sentence she hands down originally is the one you get if you violate probation.  In State v. Barr, the judge had announced a sentence of 33 months in prison when she gave the defendant community control sanctions, but increased that to 84 months when the defendant violated them.  Our court said that's a no-no.

A week ago, I mentioned that the US Supreme Court had come down with a decision which had some ominous implications for the continued vitality of the exclusionary rule.  Defense counsel might want to revise their suppression motions to assert a violation of Ohio's search and seizure amendment, Article I, Section 14.  If the Supremes do throw out the exclusionary rule, this allows you to claim that it should be imposed under the state law.  That might not afford much hope; arguing whether the US or Ohio Supreme Court is more conservative is sort of like debating which is the smarter Hilton sister.

Search

Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions