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 »

×

4th Amendment - Good and Bad

A couple of quick notes on recent search and seizure cases.

The 2nd District's decision in State v. Wilson dealt with an unusual set of facts.  The police had observed Wilson sell a handgun to a man at a gunshow; shoftly thereafter, they pulled the man over for a traffic violation and found that he wasn't allowed to have a gun by virtue of a prior felony conviction.  By that time, Wilson had gotten into an SUV as a passenger and left the gun show.  Deciding that they wanted to get Wilson's name as a potential witness, the police stopped the SUV.  They ordered Wilson out of the vehicle, and when he opened a door, the cops saw a baggie of cocaine in the proverbial "plain view."

The trial court tossed out the search, finding that there was no basis for the stop, since the police had testified that they had no reason to believe that Wilson or the SUV driver had violated any local, state, or Federal laws at any point.  The state tried to rescue the stop by arguing that it was similar to the one approved by the US Supreme Court in Illinois v. Lidster back in 2003.  In Lidster, the Court had approved a roadblock set up immediately after a fatal hit-skip accident, holding that since the purpose of the roadblock was merely to determine if anybody had information about the accident, no "individualized suspicion" was necessary for the stop. 

The appellate court didn't buy it, though.  It found first that the state had probably waived the argument by waiting until appeal to raise it.  Even if it had properly been raised, the officer's actions here -- approaching the vehicle Wilson was in at gunpoint and ordering him out of the car -- were far different than those allowed by the Court in Lidster. 

(As an aside, the Supreme Court decisions on checkpoints are something other than a "seamless web."  Checkpoints to weed out illegal immigrants and drunk drivers are okay, and checkpoints to determine whether drivers and cars are properly licensed and registered may be okay -- at least if you stop all the cars, not just some of them -- but checkpoints for narcotics are not.)

While the 2nd District earns some kudos for actually examining the case law before ruling on a 4th Amendment issue, the 3rd District decides that kind of heavy lifting isn't in their job description.  In State v. Blandin, the cops had info that Blandin was a drug dealer.  They followed his car, pulled him over for a turn signal violation, and called in a drug-sniffing dog.  The dog alerted, drugs were found, the police got a warrant for Blandin's house, more drugs were found there, and that was pretty much the story.

But let's go back to the part about the drug-sniffing dog.  The most recent Supreme Court case on that is State v. Batchili, which I discussed back here.  The short version is that police can't prolong a stop beyond its original purpose unless what happens after the stop gives them some reasonable suspicion to believe there's more going than just a traffic violation.  In Batchili, both those tests were met.  The drug-sniffing dog was brought to the scene less than 9 minutes after the stop, while the initial officer was still waiting for the results of the computer check on the driver's license and registration.  What's more, the driver's erratic conduct -- giving conflicting answers, avoiding eye contact, etc. -- might have given a sufficient basis to extend the stop for the purpose of bringing in the dogs.

So what about Blandin?  Although the cops testified that they would have pulled over the vehicle even if they hadn't observed a traffic violation, their basis for doing so is questionable:  their claim of probable cause, or even reasonable suspicion, to believe that Blandin had drugs was based solely upon the informant's uncorroborated tip, and that's not enough.  As for the time lag, the court notes that the dog arrived at the scene anywhere from twenty to thirty-five minutes after the stop, without even discussing the issue of whether that "prolonged" the stop beyond what was permissible.

But hey, the guy had drugs, right?  Sometimes, it seems that's all that matters.

Search

Recent Entries

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it