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 »

×

The good, the bad, and the ugly

The good...  The 8th district's decision last week in State v. LeeLee was driving a car that got stopped at a traffic checkpoint where "cars would be randomly selected, and directed to a designated location for further investigation."  Lee never made it to the designated location; as soon as the officers approached, they smelled PCP.  Their suspicions of drug activity were confirmed when Lee's passenger spat out a bag containing crack cocaine.  A search of the car turned up a bag of marijuana, and Lee was charged with transporting marijuana in a motor vehicle, a misdemeanor.

The arresting officer warned Lee to 'fess up to any other drugs he might have before they got to the jail, because bringing them into a detention facility was a felony.  This apparently took a while to sink in, because Lee waited until he was being booked to tell the officer that "I got weed on me," specifically, four bags of the stuff.

The 8th District affirmed the trial court's dismissal of the case, though, holding that the offense required a "voluntary act," and since the defendant was arrested, his going to the facility wasn't voluntary; nor was he required to surrender his 5th Amendment rights by admitting to being in possession of illegal drugs.  It's become somewhat common for defendants to be charged with this crime in these circumstances, so this is a nice one to have.

The bad...  The same court, in State v. CobbsThe cops staked out a gas station in a "high crime area," and saw a van pull up, Cobb get into it, then get out a couple of minutes later.  As Cobb was walking away, the officer approached him and asked what was going on.  Cobb said that he'd just gotten some money he was owed, but the officer insisted he believed that drug activity was going on.  According to the cop, he asked to search Cobb, and Cobb agreed.  The search turned up a rock of crack.

The trial court found that the officer had reasonable suspicion to make the stop, but the appellate panel found that it wasn't necessary to get into that:  this was a "consensual encounter," and that Cobbs had consented to the search. 

With all due respect, that seems to depend upon a somewhat unrealistic view of exactly how these "consensual" encounters go down.  As the dissent noted,

When [Cobbs] offered an explanation, he was not believed, and the officer continued the detention and the investigatory interrogation. Under these circumstances a reasonable person could conclude that he was not free to leave.  To take any other approach would result in what is becoming a commonplace thought; that thought is so long as the officer does not show force, the encounter is casual, and if the suspect does not walk away, the encounter is consensual.

The ugly... But Cobbs pales in comparison to the 1st District's decision in In re Jones, a juvenile case involving -- who woulda guessed? -- a drug possession case.  The police stopped a minivan when they saw it run into a curb and hit a telephone poll.  Jones was sitting alone in the third row of the van, and a search of the van turned up a small bag of crack in the closed compartment of the armrest next to Jones.  The van didn't belong to Jones, and the police didn't see him make any movements or do anything else to indicate that he knew the dope was there.  No matter; according to the majority, because he was closest to it, "he could easily have rested his arm on the compartment in which it was found, and he could have easily placed the cocaine in the compartment."

That's my italics, not the court's, presumably because the court didn't feel like emphasizing the absurdity of its decision.  Judge Painter does a good enough job of that in his dissent, taking note of the magistrate's explanation for his decision -- "And it might be a case of, let's say, being in the wrong place at the wrong time, but from a technical point of view, the prosecutor has proven his case" -- and correctly observing,

I have heard of being acquitted on a technicality, but this is the first time I have seen someone convicted on a technicality.

Search

Recent Entries

  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech
  • March 28, 2017
    What's Up in the 8th
    Pro se motions, pro se defendants, and advice for deadbeat dads