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Searching purses and fleeing the police

Every now and then, you come across a case where the only opinion is a dissent.  That happened in the Ohio Supreme Court's decision last week in State v. Mercier.  The case was pretty cut and dried:  the police had searched the purse of an occupant of a motor vehicle, and the Court's opinion, in its entirety, states, "The judgment of the court of appeals is affirmed on the authority of Wyoming v. Houghton (1999), 526 U.S. 295."  That case, which you can read here, established a bright-line rule that if the police have probable cause to search a car, they may also search containers found in the car, even if the containers belong to a passenger, and even if the police don't have any basis for believing that the passenger committed a criminal act.

There's a key difference between Mercier and Houghton, though, which Justice Lantzinger hones into in her dissent:  in the latter case, the police came across the purse during the search; its owner was outside the car, and didn't even admit ownership of it until the police found her ID in it.  In Mercier, on the other hand, the passenger was holding the purse at the time the police officer told her to get out of the car, and also told her to leave the purse in the car.

Lantzinger makes a fairly good argument about the privacy value of a purse and that the factual differences in the two cases warrant a different result.  Given that the police in Mercier admitted they had no reason to suspect the passenger of anything, allowing them to bring the case within the Houghton rule by the simple expedient of telling her to leave her purse in the car is a bit unsettling.  Given the US Supreme Court's growing preference for "bright-line" Fourth Amendment rules, though, it's hard to say that the Ohio Supreme Court got Mercier wrong.

The same thing can't be said about its other decision last week, in State v. FairbanksA police officer had seen Fairbanks go left of center, and put on his sirens to apprehend him; Fairbanks took off, and wound up crashing his car.  He was charged with various traffic citations for this, including one for reckless operation, which he pled to and paid the fine.  A few months later, the state indicted him for failure to comply with an order of a police officer.

That offense is normally a misdemeanor, but becomes a third degree felony if the flight "caused a substantial risk of serious physical harm to persons or property."  Fairbanks argued that reckless operation, which prohibits operating "a vehicle * * * on any street or highway in willful or wanton disregard of the safety of persons or property," was a lesser-included offense of the third-degree felony variant of failure to comply, and that his plea to the former offense barred prosecution of the latter under double jeopardy.

That seems to be a pretty simple, and convincing, argument.  Driving with "wanton disregard of the safety of persons or property" is indistinguishable from driving so as to "cause a substantial risk of serious physical harm to persons or property."  Under normal lesser-included-offense analysis, that would make reckless op the lesser included of third-degree failure to comply, with the latter requiring the additional element, of course, of refusing to obey a police officer.

How the Court comes to a contrary conclusion makes for an interesting, if unconvincing, read.  In fact, the basis for the Court's conclusion isn't entirely clear:  it seems to be that the "substantial risk" language of the third-degree felony variant of failure to comply isn't an element, but merely an "enhancement" of the basic crime:

It is analogous to determining whether the offense occurred in daylight or in darkness or whether the place where it occurred was dusty or wet. It is simply a finding of the presence or absence of a condition.

Essential to the Court's finding in this regard is its determination that the "enhancement" requires no "culpable mental state"; in other words, although the state has to show that the defendant "willfully" fled the police, whether that created a risk of substantial danger to person or property is a matter of strict liability.  The Court determines that the legislature "clearly intended" such a result, and cites State v. Jordan in support of that conclusion.

If you read State v. Jordan, though, it actually runs contrary to the result in Fairbanks.  In Jordan, the the defendant had been charged with possession of a dangerous ordnance; the statute required that the defendant "knowingly possess... a dangerous ordnance," and the state argued that the "knowingly" requirement only applied to the "possession," and that whether the instrument was actually a dangerous ordnance was a matter of strict liability.  The Court rejected that interpretation, noting that while "different elements of the same offense can require different mental states," the General Assembly had specified a culpable mental state, and "nothing in the language of the statute would lead us to conclude that the General Assembly plainly indicated its intention to impose strict criminal liability in determining whether" the statute was violated.  The emphasis was the Court's, and there's nothing in the failure to comply statute which plainly indicates that the legislature intended to the "substantial risk" element to be a strict liability offense.

Lantzinger -- again -- does a nice job in her dissent (joined by Pfeiffer), all for naught, of course.  It's nice to have logic on your side, but if you don't have the votes, it doesn't matter much.


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