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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.

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