Just when you thought it was safe to go back into the water…  So this morning I check my email, and there’s a few letters that have gotten through my spam-blocker, promising me instant wealth or a larger penis or all the xanax I need — and, thanks anyway, but if I have the first two I won’t be needing the third — when I come across one from CPMKE@cuyahogacounty.us.  It had a memo attached, which you can read here.  Basically, if you get appointed on a criminal case, you have to submit a certification — like this one — when you submit bill if it’s more than $500. 

What’s it all about, Alfie?  Well, it seems that the state legislature passed a law, RC 3517.13, prohibiting state agencies from awarding contracts to persons who’ve given more than $1,000 to the holder of the office who’s responsible for awarding the contract, either within the two years before the contract is awarded, or within a year after.

Now, this isn’t going to affect me, because the chances of my giving a judge — or anyone else, for that matter — a campaign contribution of $1,000 are slim and none, and Slim just rode out of town.  On the other hand, the law is written so that contributions are conglamerated, not only on an individual basis, but on a group basis is well: if you give $250 five times, that’s the same as giving $1,250, but if you and each of your four partners gives $250, that’s the same as each of you giving $1,250.  And that means that the judge you gave it to can’t you assign you a case involving more than $500.

Maybe.  But maybe not, because you’ll notice that the sections which impose the certification requirement also specify that they’re “subject to divisions (K), (L), (M), and (N) of this section,” and division (M) provides

(1) Divisions (I) and (J) of this section do not apply to contracts awarded by the board of commissioners of the sinking fund, by the supreme court or courts of appeals, by county courts consisting of more than one judge, courts of common pleas consisting of more than one judge, or municipal courts consisting of more than one judge, or by a division of any court if the division consists of more than one judge. This division shall apply to the specified entity only if the members of the entity act collectively in the award of a contract for goods or services.

I’m checking with the court administrator’s office now to see whether this does indeed apply to us.  In the meantime, make sure to include the certification with fee bills over $500 starting on Monday.

The safety and welfare of the Republic was further ensured last week by the Supreme Court’s decision in the famous “Bong Hits” case, Morse v. Frederick, in which a group of students had unfurled a banner, as shown at left, during a school outing to watch the Olympic Torch relay.  The outraged principal had immediately demanded that it be taken down, and all but one student had complied.  He wound up being suspended for ten days.

As students are wont to do these days, he filed a suit for violation of his civil rights.  The district court dismissed it on summary judgment, but the 9th Circuit reversed, holding that the school had failed to show that the banner was sufficiently “disruptive” of school activities so as to warrant disciplinary action.

The Supreme Court this term has issued opinions in 19 cases arising from the 9th Circuit.  It has reversed in 17 of them.  This wasn’t one of the lucky two.

Chief Justice Roberts wrote the opinion for the 5-4 majority — joined, as you might guess, Scalia, Thomas, Kennedy, and Alito — upholding the school’s actions.  Breyer wrote an opinion concurring in the judgment, but on the grounds that the Court didn’t need to reach the 1st Amendment issue, and dissented from the opinion on that basis.  Ginsberg, Stephens, and Souter of course dissented.  Thomas concurred in an opinion expressing his belief that the 1st Amendment didn’t apply to students at all.

This all started, of course, with Tinker v. Des Moines, the 1968 case in which the Court had upheld students’ rights to wear black armbands as an expression of opposition to the Vietnam War, finding that student expression couldn’t be suppressed unless it would “materially and substantially disrupt the work and discipline of the school.”  That was the high-water mark of student freedom, though; the Court backed off that test the next time it confronted the issue, 18 years later, in Bethel School District v. Fraser.

Fraser involved a student’s speech to an assembly, in which the student employed what the Court called an “elaborate, graphic, and explicit sexual metaphor.”  (Similar to what can be found on any episode of Friends during its last few seasons.)  The Court had little trouble upholding the school’s suspension of the student, although, as Roberts confesses in the Bong Hits case, “the mode of analysis employed in Fraser is not entirely clear.”  Clear enough, apparently, for the majority in Morse to distill two basic holdings from Fraser:  first, that “the constitutional rights of students in public school arenot automatically coextensive with the rights of adults in other settings,” something that not even Tinker had disputed, and second that Tinker’s “substantial disruption” requirement was DOA.

What’s particularly interesting about Morse is the Court’s handling of the drug issue.  After rejecting the dissent’s claim that the banner was mere “gibberish,” the majority concludes that it was actually advocating drug use.  Roberts’ explanation for this conclusion borders on the hilarious:

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could beinterpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating druguse—”bong hits [are a good thing],” or “[we take] bonghits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.

The opinion then veers off into a discussion of why “deterring drug use by schoolchildren is an ‘important — indeed, perhaps compelling’ interest,” in terms vaguely reminiscent of the 1950’s “demon weed” drug-ed movies. 

Somewhat puzzling is the majority’s conclusion that “this is plainly not a case about political debate over the criminalization of drug use or possession,” but about restricting speech that “is reasonably viewed as promoting illegal drug use.”  I say “puzzling” because I don’t sense that the majority would have come to a different conclusion if the kids had held up a sign saying “Legalize Drugs.”

Perhaps Justice Alito would, because his concurrence, in which Kennedy joined, starts this way:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

Superficially, that’s a narrower base than the majority’s opinion adopts, and thus Alito’s views are controlling.  But the same inconsistency exists:  doesn’t advocating drug usage implicity carry a message about ”the wisdom of the war on drugs”?  What’s the distinction?

This might be one of those cases that’s hailed in conservative circles, only to come back to haunt them later.  Earlier this week, as this story tells us, a student was disciplined for wearing a t-shirt that said “homosexuality is shameful.”  Could the school ban this on the grounds that a “reasonable observer would interpret it” as advocating hostilitity toward homosexuals, or is it permissible on the grounds that it can be “plausibly interpreted” as commenting on the wisdom of homosexuality and its behaviors?

Stay tuned.

I’d mentioned a couple of months back that many courts, the 8th District for one, have been very particular in demanding that trial courts advise defendants of post-release controls during plea hearings; generally, they’ve held that failure to completely advise the defendant of post-release controls voids the plea.  An appellate lawyer came up with an interesting twist on that argument last week in State v. Reed. 

The case is straight out of Bad Decisions, Volume 36.  Reed was charged with burglary, a 2nd degree felony.  The state offered to drop it down to a 4th degree felony, pretty much of a sweetheart deal.  The judge even brought Reed into the courtroom, and explained that if he took the deal, he could only get a maximum 18 months, versus the 8 years he was looking at if he went to trial and was convicted.  Reed acknowledged that his attorney had told him the same thing, but he insisted on going to trial anyway.  You’ve seen this movie, and you know how it ends:  Reed was convicted of the burglary, and the judge gave him six years.

On appeal, Reed’s attorney urged that the judge’s failure to inform Reed of post-release control rendered Reed’s rejection of the plea offer “unknowing and unintelligent.”  The “unintelligent” part was pretty much of a given.  As for the unknowing part, the defense acknowledged that the judge was under no obligation to inform him of the consequences of rejecting the state’s plea offer, but since the judge had voluntarily assumed that obligation, he had the duty to inform Reed of post-release controls as well.

The 6th District didn’t buy it, needless to say, finding that while Criminal Rule 11(C) requires a trial judge to inform the defendant of various rights and penalties before accepting a plea of guilty, it has no such obligation when the defendant pleads not guilty.  Plus, the court rightly noted,

Appellant openly insisted on risking the possibility of an additional 78 months incarceration and preserved his right to a jury trial. Even if the trial judge had informed appellant of post-release control issues, there is no reason to believe that appellant would have decided any differently.

While we’re on the subject of post-release controls, the 6th District also had a reminder last week in State v. Holt that the failure of the trial court to mention post-release controls in both the sentencing entry and in the sentencing hearing means that the controls weren’t properly imposed, and the defendant has to be resentenced.  If he’s not, then the imposition of post-release controls isn’t valid.

The Supreme Court’s long-awaited decision in Rita v. United States finally came out last week.  Rita was the Court’s first Federal sentencing decision since it declared the Federal Sentencing Guidelines advisory in Booker v. United States back in 2005.  That decision, needless to say, caused a tumult in Federal sentencing, particularly with regard to the question of what role the Guidelines should continue to play.  The fear was that the Guidelines, while now “advisory” in theory, were still viewed as mandatory in practice; that fear has only grown with the experiential realization that, since Booker was handed down, not a single within-Guidelines sentence has been reversed by a circuit court.

The Federal courts of appeals have far more power to review sentences than do Ohio courts by comparison, and Rita was supposed to establish some parameters for that power.  In Booker, the Court had declared that the appellate courts could still review a sentence for “reasonableness,” and the specific question in Rita was whether a sentence within the Guidelines is presumptively reasonable.  As anticipated in most quarters, the Court held that it was, by an 8-1 vote, with only Justice Souter dissenting.  In fact, the Court didn’t even go that far, holding merely that a circuit court could employ that presumption, not that it had to.

While the Court stressed that this was a “nonbinding” presumption on appeal, rather than a presumption the district court should employ in determining the sentence, it’s hard to see how that’s going to make much difference in real life.  Justice Breyer’s opinion for the Court spends a fair amount of time talking in laudatory terms about all the research that went into the Guidelines.  In recent years, some courts (and defense counsel) have argued that the sentencing provisions of 18 USC 3553, and especially that section’s “parsimony provision” – that a sentence should be “sufficient, but not greater than necessary” to achieve the section’s purposes — offers in itself a basis for variance from a Guidelines.  Breyer, though, cuts that argument off at the knees by concluding that “the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)’s objectives.”  In other words, don’t bother looking at 3553, because the Guidelines already take that into consideration.

As I’d mentioned in the past few weeks, Rita was supposed to be decided along with Claiborne v. US, which presented the flip side of the question:  whether a sentence outside the guidelines was presumptively unreasonable.  That case died with Claiborne, who was killed a month ago in a botched robbery attempt, but the Court has granted cert in a case presenting the same question, and that decision will come out next year.  If the Court finds for the government in that one, too, then it’s hard to see how a fiction that the Guidelines are merely advisory can be maintained.  If a district judge knows that a within-guidelines sentence will be reviewed on the presumption that he did the right thing, and a sentence outside the guidelines will be reviewed on the presumption that he did the wrong thing, that’s going to be a powerful incentive to choose a within-guidelines sentence.  As Justice Souter noted in his dissent:

What works on appeal determines what works at trial, and if the Sentencing Commission’s views are as weighty as the Court says they are, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the  unorthodox factfinding necessary to justify a sentence outside the Guidelines range.

At any rate, the opinion is a lot more involved than the cursory treatment I’ve given it here.  As always, Doug Berman, over at the Sentencing Law & Policy blog, is the go-to guy on sentencing issues.  He’s got some interesting and thought-provoking comments on Rita here, here, and here.  And I’m sure he’ll have more.  If you do a lot of Federal criminal work, this is stuff you should be reading.

Although there was nothing of significance in the Ohio Supreme Court this week, there were some interesting decisions from the US Supreme Court and 6th Circuit Court of Appeals on criminal questions.  I’ll discuss them tomorrow.  Meantime, in the courts of appeals…

The 1st District concludes that minor-misdemeanor disorderly conduct is a lesser-included offense of assault, but the 4th-degree misdemeanor disorderly conduct is not, because it has the additional element of persisting in the conduct.  There are a couple of districts — the 10th and 2nd — which hold that either degree of disorderly conduct is not a lesser-included of assault.  The 8th District would probably agree with the 1st on this; a couple of years back, they held that the minor misdemeanor was a lesser-included of domestic violence, but the 4th degree misdemeanor was not, for the same reason….  The 1st District also did something you don’t see very often:  it reversed a trial court’s denial of a motion to withdraw a guilty plea, finding that the trial court concentrated too much on the fact that the plea had been knowingly made, and not enough on the reasons for allowing withdrawal. 

The 6th District affirmed the trial court’s grant of a motion to suppress, holding that a homeowner’s consent to search his house didn’t extend to a backpack left there by another person….  The 8th District holds that a kidnapping conviction should have merged with an aggravated robbery conviction; the case has a good discussion of the “separate animus” requirement for allied offenses.

Some civil stuff:  the 8th District continues the line of cases holding that a union employee does not have a right to claim wrongful discharge in violation of public policy, because his remedies for discharge are specified in the union contract….  And the 8th also gives a pointed — and painful — reminder that voluntary dismissals are self-executing.  Summary judgment on been granted against their client on one of his claims, and he filed a voluntary dismissal of the other claims on June 29, 2006, so he could appeal.  The court journalized the voluntary dismissal on July 10, and he appealed on August 9.  Too bad; the dismissal becomes effective upon filing, not acceptance by the court, and the appeal wound up being dismissed for lack of jurisdiction….  The 12th District affirmed a trial court’s grant of a civil protection order for a mother and child against the father, despite an Illinois order giving the father visitation rights, because the child had never lived in Illinois and thus that state’s order wasn’t entitled to full faith and credit.

Last, one more cautionary note, again out of the 8th District:  don’t assume that a late filing of an answer will be automatically accepted.  That’s what the lawyer figured in a case with the ungodly name of Ear v. Phnom Penh, and he got hammered for it.  Civil Rule 6(B)(2) requires a showing of “excusable neglect” for a late filing.  While this is less stringent than the showing under 60(B)(1), you still have to demonstrate something.  The first time the lawyer filed it, he didn’t specify anything, and when the judge called him on it, he put something together which wasn’t quite true or helpful to his situation:  he claimed that he’d been come on the case only recently, when in fact he’d been retained two months earlier, and asserted that he couldn’t check service because the Internet in his office was down.  Boo hoo.  The judge threw out his pleading and gave the plaintiff a default judgment, and the appellate court affirmed.

Yesterday we talked about the Ohio Supreme Court’s forthcoming decision in State v. Siler, which was argued a couple of weeks ago.  Siler involves the statements of 3-year-old Nathan Siler to a police officer investigating his mother’s death; the court of appeals reversed the conviction of the defendant — the boy’s father — on the basis that Nathan’s statements were “testimonial,” and their admission at trial violated the defendant’s rights under Crawford v. Washington.

I watched the oral arguments on the Siler case (you can, too:  you can find the case here, under the June 5, 2007, date; you’ll need RealPlayer).  There are three basic ways the Court could go.

Follow Stahl:  In Stahl, the Court keyed on Crawford’s definition of a testimonial statement as one made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” and expanded on that by holding that “courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant’s expectations.”  As I mentioned yesterday, the Court didn’t really explain why the expectations of the declarant should control the question of admissibility, and the problems inherent in that formulation become manifest in Siler:  while one might debate whether the victim in Stahl expected her statement to be used at trial, there’s no question that Nathan Siler had no idea what a trial was, let alone gave any thought to whether his statement would be admitted at one.

Needless to say, that’s the stance the prosecutor urged the Court to adopt, and in fact went further:  she urged that the age of the child should play an important role in making that determination, sort of a “de facto” rule that a child under a certain age was inherently incapable of giving a testimonial statement.  Where this would wind up going was posed in a question by Justice O’Connor:  what about an adult who was mentally retarded?

And this is where it all unravels.  It’s bad enough that you’re trying to divine a person’s expectation; now you’re trying to define their ability to formulate those expectations.  It may well be that a child of five or six (or even three or four) has no understanding of how the judicial process works, but many have an understanding of right and wrong, and the concept of consquences and punishment.  If they know that if they say somebody did bad things, that person will be punished, isn’t that the functional equivalent of believing that the statement “would be available for use at a later trial”?

What’s more, it’s going to be a lot harder this time to reconcile Stahl’s holding with the more objective test employed in Davis and Hamdan.  In Stahl, the Court distinguished those two cases on the basis that they involved statements to police officers, and the statement in Stahl was made to a nurse.  They can’t do that with Siler.  That, of course, leads us to the second possible course for the Court to take…

Distinguish Stahl:  In fact, that’s exactly what the defense urged in oral argument:  this is different from Stahl.  The defense argued for a flat rule that any statement made in response to a police interrogation about “past facts” is testimonial.  That contention is certainly logical, and results from a fair reading of Davis and Hamman; what’s more, it avoids the problem of trying to persuade the court to overrule a decision it made just last year, which isn’t going to happen.

The validity of such a distinction isn’t so clear, though.  It would obviously mean excluding the child’s statements, and it would be difficult to reconcile that result with Stahl: an adult didn’t have an expectation that the statement would be used at trial, but a 3-year-old did?  What’s more, there are some serious ramifications of that holding as well.  In a child abuse case, does that mean that the “testimonial” issue can be avoided by having a social worker talk to the child instead of the police?  In Davis, the court held that statements to “agents” of the police — the 911 operator in that case — were evaluated in the same light as statements to the police themselves.  But it’s not difficult to foresee problems with a rigid application of a “police interrogation” model.

Avoid the testimonial question entirely:  This was the escape route offered by Judge Patrick McGrath of the 10th District, sitting in for Justice Cupp, who’d recused himself.  During the prosecutor’s argument, McGrath lobbed up a softball question about whether the police officer even knew that he was investigating a homicide, rather than a suicide, when he first talked to the boy.  The prosecutor promptly swatted it out of the park, claiming that the officer was simply trying to determine what had happened.  This, arguably, would remove the “interrogation” aspect from the case, and thus eliminate the whole issue of whether the statement was testimonial.

Obviously, I haven’t reviewed the entire record, but there are various comments in the appellate court opinions which seem to undercut that theory:  the garage door had been forced open, the mother’s body had bruises, and the officer’s questions to the child almost immediately focused on his father.  If the Court did follow this tack, it wouldn’t be the first time a court ignored the facts to reach the result it wanted, and it wouldn’t be the last.  Still, the facts here are a little too prominent, and the case far too important, to fluff the issue off on that basis.

What should the Court do?  The most important function of an appellate court is to give guidance, to harmonize the law, as much as possible.  The problem with Stahl is the reason that the law rarely employs “subjective” tests:  there’s no clear standard to guide the lower courts (or juries) in making their determinations.  Use of an objective standard, especially a “bright-line” test that statements made as a result of police interrogations as to past events are testimonial, would go a long way toward clarifying some of the post-Crawford confusion.

What will the Court do?  I’d bet on a 4-3 decision following Stahl and reversing the 5th District’s decision excluding the statements.

On August 20, 2001, the police went to the home of Barbara Siler, alerted by a call from her father that she hadn’t appeared for work.  They found her body hanging in the garage, and her three-year-old son Nathan asleep in his room.  The police officer, who’d received training in interviewing children, took the boy out on the lawn and, over a forty-five minute period, elicited the fact that “Daddy” had come to house and knocked loudly on the door, that “Mommy and Daddy were fighting,” and that “Daddy tied something around Mommy’s neck.”  The police went to the home of Barbara’s estranged husband, Brian Siler, and found he had scratch marks on his knuckles and on his chest, near his neck.

Siler was charged and convicted of the murder of his wife.  The officer who’d interviewed Nathan testified to what the boy told him.  The court of appeals upheld the conviction, finding that the child’s statements were admissible under the “excited utterance” exception to the hearsay rule.  The Ohio Supreme Court denied review, and that was that.

Until Siler appealed to the US Supreme Court, which vacated the conviction and remanded the case back to the court of appeals for consideration in light of Crawford v. Washington, the 2004 decision which held that admission of out-of-court “testimonial” statements, without the opportunity to cross-examine the declarant, violates a defendant’s confrontation rights.  The 5th District took another look at it, decided that the child’s statements were testimonial, and reversed the conviction.

The case is now before the Ohio Supreme Court, and promises to provide an interesting followup to the court’s first foray into post-Crawford jurisprudence last summer in State v. Stahl.  In Stahl, the Court upheld the admission of a rape victim’s detailed statement to a nurse in a rape crisis unit, keying on Crawford’s definition of a testimonial statement as one “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”  According to the slim 4-3 majority, the victim made the statement in the “reasonable belief” that it was for purposes of medical diagnosis and treatment, not for use at trial; this despite the fact that a policeman took her to the nursing unit and sat in the room during the entire interview, that the form she signed before giving the statement specifically indicated that the information she gave “would be used in the investigation and prosecution of this crime,” and that no medical treatment was provided.

In addition to the questionable result, Stahl’s focus on the expectation of the maker of the statement as determinative of whether it was testimonial presented some additional problems.  First, it contemplated a binary process — either the maker of the statement expected it to be used at trial, or expected it to be used for some other purpose — with no explanation of why that should be true; why couldn’t the maker anticipate that it would be used for both?  Nor does the case provide any explanation of why the expectation of the maker should be determinative.

Indeed, that formulation seemed to run counter to the US Supreme Court’s follow-up to Crawford.  In the summer of last year, it decided two companion cases, Davis v. Washington and Hammon v. Indiana.  In both cases, the police had responded to a domestic violence call.  In Davis, the court held that the victim’s statements to the 911 operator weren’t testimonial, because they were made in response to an ongoing emergency.  In Hammon, the court held that the victim’s statements in response to the officers’ questioning, after they’d arrived and separated the parties were testimonial, because at that point the emergency had ceased and the police were simply attempting to gather information on past events.  But perhaps the most significant part of the opinion was Justice Scalia’s formulation of what constituted a “testimonial” statement:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

To be sure, Scalia acknowledged that the definition wasn’t intended to be exhaustive.  Still, it’s hard to square that with Stahl’s syllabus:

In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant’s expectations.

Although that discrepancy was easy to pass off in Stahl – the Court distinguished Davis and Hammon on the basis that those involved statements to the police, while Stahl involved a statement to a nurse — it can’t be dismissed on a similar basis in Siler.  In fact, as was clear in the oral arguments on Siler two weeks ago, Siler reveals the central problem in Stahl:  the expectations of the declarant are supposed to determine whether or not a statement is testimonial, but no one could seriously contend that 3-year-old Nathan Siler ever contemplated what use would be made of what he told the police officer that afternoon on the day his mother died.

Tomorrow we’ll discuss how the arguments went in Siler, and what the Court might do with the case.

Sometimes I think that the easy answer to the question, “How does the 4th Amendment apply to car searches?” is, “It doesn’t.”

That’s a bit cycnical, but you’d be excused from coming to that conclusion after reading the 8th District’s decision last week in State v. Beavers.  Beavers had decided to spend the night with his girlfriend at the house she shared with her brother and mother.  Unfortunately, the brother apparently was a drug dealer, and when the police executed a search warrant, they found drug paraphernalia throughout the house, and some marijuana under the bed Beavers and the sister were sleeping in.  They found Beavers’ car parked illegally outside, and a quick flashlight scan of the interior showed marijuana and some joints lying on the console.  The police squad’s drug-sniffing dog with the definitely-not-man’s-best-friend name of “Boss” alerted to the vehicle.  After obtaining Beavers’ keys, the cops found ammo in the glove compartment and a gun in the trunk, leading to Beavers’ prosecution for having a weapon under disability.

Beavers raised a number of objections to the search, including his arrest inside the house, but the court ignored that and focused on the search of his car.  Rightly so; whether Beavers was properly arrested, or even whether his car was illegally parked, was irrelevant — case law holds that there’s no constitutional barrier to the police shining a flashlight into a car, and the question then became what could the officers do after they saw marijuana in the car.

Quite a lot, actually.  There’s also a bunch of cases which hold that observing marijuana in a vehicle gives probable cause to search the vehicle.  That includes the trunk; back in 1982, in US v. Ross, the US Supreme Court held that probable cause to search a vehicle under the automobile exception to the warrant requirement allowed the search to extend to everything that a warrant would have permitted:  an officer may search the entire vehicle, and any containers in the vehicle, which could contain the item for which cause exists to search.

Actually, Beavers gives a good demonstration of how screwed up search and seizure law is in this area.  Just last year, in State v. Farris, the Ohio Supreme Court held that the officers’ detection of the smell of burnt marijuana in a car couldn’t justify a search of the vehicle’s trunk.  (I discussed Farris here.)  This, despite the fact that just six years earlier, in State v. Moore, they’d held that the smell of marijuana did give probable cause to search the vehicle, and the Farris court makes no effort to explain why Ross and Moore should shouldn’t be read to allow a search of the trunk in that situation.  In fact, Farris relies primarily for that on an Ohio Supreme Court decision which holds that a search of the trunk can’t be conducted pursuant to an arrest, but that’s not the same thing.  A search incident to an arrest of an automobile driver or passenger is limited to the interior of the automobile, but searches incident to arrest have always been much more limited:  you can’t search the trunk of a car under those circumstances for the same reason that you can’t search the upstairs bedroom simply because you arrest someone in his kitchen.

The Beavers court distinguished Farris on the basis that the case there involved the smell of burnt marijuana, while here it involved the actual discovery of the contraband.  Arguably, the court overlooked the question of whether finding “contraband” which does not even constitute an arrestable offense — possession of less than 100 grams of marijuana is a minor misdemeanor — creates probable cause to search the car.  Then again, the court noted that an inventory search of the vehicle would have discovered the weapon, and search of the trunk is permissible for an inventory search.

I’m not the most enthusiastic supporter of expanded rights to searches, as you might have gathered, but I can understand the frustration of police officers with all this.  I make a fair part of my living studying this stuff, and it can take a while to sort all of it out.  How cops do it in the couple of seconds or minutes they have to make a decision is beyond me.

Although most states, including Ohio, give a passenger standing to assert the illegality of a stop of the vehicle, a few states don’t.  California joined them last year.  The case involved a stop of a vehicle to check the registration, the state admitting that there was no basis for the stop.  Drugs had been found on the passenger, though, and the California Supreme Court narrowly upheld his search, saying that he was free to leave after the stop, and therefore wasn’t “seized” for 4th Amendment purposes. 

Yesterday, the US Supreme Court unanimously reversed that determination in Brendlin v. California.  The reversal was widely predicted, so it didn’t come as much of a surprise.  And if you’re a passenger in a vehicle that’s pulled over, you exit the vehicle, give the nice police officers a friendly wave and say, “I guess this is my stop,” and stroll off, it shouldn’t come as much of a surprise if they beat you stupid with their truncheons.  I have no idea what the California court could have been thinking on this one.

The spate of unanimous decisions, though — there were five last week — shouldn’t obscure the fact that the Supreme Court is much more narrowly divided, especially in the area of criminal decisions.  More typical was the decision in Bowles v. Russell, a case with a local flavor.  A Cleveland attorney had intended to appeal from a habeas denial here in Federal court, and the judge put on his entry denying relief that the appeal had to be filed within seventeen days.  Turns out that the rules provide for only a fourteen-day period, and the 6th Circuit dismissed the appeal on jurisdictional grounds.  The Supremes affirmed that last week by a 5-4 vote, over Justice Souter’s dissenting observation that, “It is intolerable for the judicial system to treat people this way.” 

In fact, Professor Dorf over at the blog Dorf on Law posits the theory that we’re seeing the “Karl Rovification of the Supreme Court.”  Rove is famous for his theory that winning elections depends not on reaching out to the center but on maximizing the support of the base.  (How’s that working for you now, Karl?)  Dorf suggests that, similarly, when the four conservative justices — Scalia, Thomas, Roberts, and Alito — can corral Kennedy, they don’t care what Souter, Ginsberg, Breyer, and Stevens think.  There’s no longer any effort to reach a consensus, but merely to grab the five votes necessary to form a majority.

In that light, Jeffrey Toobin wrote an article for the recent New Yorker which does a good job of pointing out the political stakes in the presidential election next year:

At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.

I’d talked about the US Supreme Court decisions earlier in the week.  As most lawyers know, Monday is the day that opinions are announced, and there are a number of big ones left in the term.  I’ll discuss any that are announced today later in the week.  The Ohio Supreme Court didn’t have any major decisions last week, unless you count In re SJK, in which the court held that payment of a traffic fine didn’t moot the case for appeal purposes, since the imposition of points on the drivers license constituted a collateral disability which preserved the case for review.  So that’s good news if a lot of your practice is dependent on appeals of traffic cases.  And if a lot of your practice is dependent upon traffic case appeals, you could probably use some good news.

Can a defendant be convicted of a carrying a concealed weapon with ammunition at hand — a felony — if he has the gun and the codefendant next to him has the ammo?  The 1st District says yes.  It also affirmed summary judgment for an employer in a sexual harassment case, although acknowledging that the offending employee’s acts were “creepy.”  Those acts included placing a condom on the desk of a female employee, apparently in heed of the observation that not all poems are written with the pen. 

Rara avis: the 2nd District reverses a conviction for ineffective assistance of counsel in failing to object to a hearsay statement.  It also rules that the one-year limitations period in a defamation case begins to run from date of publication, not the date when the plaintiff discovers the defamation. 

Around here, the 8th District affirms summary judgment in another slip-and-fall case, holding that the open and obvious doctrine isn’t defeated by a claim that the color of steps and floor were uniform, making the steps harder to pick out.  The 9th District holds that the trial court’s failure to instruct on an element of a crime — in this case, the intent to commit an offense, the last element of burglary — is not a “structural error”; if the defense doesn’t object, it’s analyzed under the plain error standard. 

Last, if you’re going to base your appeal of your conviction of a drunk driving conviction on the basis that there was no evidence at trial that you were the one that the cop actually arrested, it’s probably a good idea if your attorney hasn’t asked the officer questions like, “That would have been after you already arrested my client, after you made a decision in your mind that he was under the influence of alcohol, correct,” “After you stopped my client you go up to the vehicle and at that point you have personal contact with him, is that correct,” and “When you asked my client to perform these field sobriety tests, uh, he had a legal right to refuse, he did not have to do these tests for you, did he?”