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

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case