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Anticipatory search warrants, and some puzzlers from the 8th

Every now and then doing this blog makes me feel dumb.  I like to think of myself as fairly knowledgeable about search and seizure law, but last week I'm preparing the case update and I run across State v. Blevins, a case out of the 3rd District on anticipatory search warrants. 

On what?

Well, with the ordinary warrant, the cops say that there's drugs at such and such a place, the court issues a warrant, the police go out to search, and that's that.  But what happens if the police believe that the drugs aren't there now, but will be soon:  for example, if they have a tip that a big drug delivery is going to be made to that address in a couple of days.  That's what the "anticipatory" search warrant is for.  There's a US Supreme Court decision from 2006 on the subject -- and I apparently didn't get the memo on that, either -- explaining that this breaks the "probable cause" issue into two components: 

It must be true not only that if the triggering condition occurs "there is a fair probability that contraband or evidence of a crime will be found in a particular place," but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination.

Blevins contains a full discussion of the cases and the subject, so if you've got one of these, now you know where to look.

Then again, sometimes doing this makes me feel not-so-dumb, just befuddled.  As I'm going through the 8th District decisions a week or so ago I come across State v. Goza, a child-rape case where, as usual, a nurse and social worker interviewed the victim.  The issue is whether they can testify about what the child told them, and that, of course, raises the question of whether the statements are "testimonial" under Crawford v. Washington.  Just a few months ago, the Ohio Supreme Court, in State v. Siler, cited numerous cases where children's statements to social workers and even nurses had been held to be testimonial on the theory that the latter were serving as agents of the police.

So what does the 8th District do?  It reads Crawford out of the picture by concluding that "Crawford only applies to hearsay statements that are not subject to any hearsay exceptions."  Even ignoring the case law, from a merely logical viewpoint, this makes no sense:  if a hearsay statement doesn't meet a hearsay exception, it's not admissible anyway, so why would Crawford even be needed to exclude them?  As Judge Gallagher from the same court explained in his excellent discussion of Crawford last year in Cleveland v. Colon, which I discussed here, Crawford requires a two-step analysis of hearsay:  if the statement is testimonial, it's kept out, and if it isn't testimonial, you then determine whether it comes in under an exception to the hearsay rule.

In fact, the 8th District's recent forays into the hearsay rule have proven nothing short of bewildering.  In State v. Selinka, it dealt with the issue of a child sex abuse victim's statement to the police and a social worker without even mentioning, let alone addressing, Crawford.  And the decision in State v. Rodriguez was simply bizarre.  The trial court had allowed the witness' statement to be introduced as substantive evidence.  That's permissible under rare circumstances, which weren't present here.  The court of appeals nonetheless affirmed the trial court's actions, holding that defense counsel "opened the door" to admission of the statement by using it in cross-examination.  Is it now the law in this county that anytime a defense lawyer exercises his right under Criminal Rule 16(B)(1)(g) to cross-examine a witness for the inconsistencies contained in his statement, that statement can be introduced as substantive evidence?

The court did come down with some excellent decisions on search and seizure, as it has routinely done over the past few years.  In State v. Fann, it held that the discovery of drugs found behind a speaker during an inventory search was invalid, because nothing in the inventory policy permitted searching behind speakers.  And State v. Daugherty contains an excellent discussion of the "plain feel" exception to the warrant requirement; the court winds up tossing the evidence because the officer had no more than a "hunch" that the item he felt in the defendant's rear pocket was contraband.

So, I guess the moral to this story is that if you come to Cleveland, don't worry about whatever evidence the police find on you, because it'll get thrown out.  But if the case actually goes to trial, anything anybody ever said to anyone else is going to come into evidence.

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