Why I ♥ the 8th
Yes, I know, the 8th gets routinely reversed in civil cases, and I've lambasted it for its obsequious deference to trial judges in sentencing cases and for its cringeworthy hearsay jurisprudence. But all is forgiven. Last week, in State v. Acy, the 8th again proves itself the most 4th Amendment-friendly court in Ohio.
The case begins, as so many do, with officers patrolling a "high-crime" area late at night. In this case, many officers: there were four Sheriff's Department units and three more from the East Cleveland Police Department. They saw four males standing on a corner and, despite the lack of any apparent criminal activity, decided "to approach these males to see what they are doing, why are they standing on the corner." The officers stopped, activated the overhead lights of their cars, and five deputies got out and converged on the men. As the latter were about to enter a car, "the deputies stopped them by calling out, 'Hey, sheriff's department,'" then asked if they had any drugs, weapons, or contraband. Acy helpfully replied, "I got some marijuana on me and $800 from my business."
The precise nature of Acy's business is not left to conjecture. A patdown ensued, resulting in finding some marijuana in Acy's pocket. The police asked Acy to consent to a search of his vehicle, and, after a dog alerted to it, a black bag inside the car. Thirteen individual bags of marijuana were seized, and Acy was charged with 5th degree felony drug trafficking.
The state argued that this was an encounter of the consensual kind: the cops did nothing more than approach Acy and ask him questions. Even if it was a stop, Acy's consent to the search of his vehicle obviated any problems with that.
The "consensual encounter" argument is not a new one, and it's being used with increasing frequency by prosecutors. Indeed, the facts here are benign in comparison to some other cases; last year in State v. Evans, for example, the state urged that a dozen police officers entering a fenced-in backyard with guns drawn and subjecting the residents of the house to a pat-down was consensual. Most courts would have bought into the argument here. After all, there'd been no actual restraint of Acy; at the time the officers called to him, they were still some distance from him.
To its credit, the 8th (and the trial court, which threw out the search) did exactly what they were supposed to: they looked at the totality of the circumstances, "including the overwhelming number of units and officers involved," and decided that "appellee, or any reasonable person, would not believe that he was free to get in his car and drive away." It was right on the money with its analysis of the consent issue, too. The test is whether the consent is an act of free will or a mere submission "to a claim of lawful authority," and the court found that there was sufficient evidence to support the trial judge's determination that Acy hadn't voluntarily consented to the search.
Acy is a must-have decision. Last July, Cleveland Mayor Frank "Sleepy Time" Jackson announced that the city was going to embark upon a much more aggressive effort to get guns off the street. At the time, I'd mentioned that the police would rely on the consensual encounter theory to do so: there was nothing wrong with approaching a person, casually inquiring whether they're packing, and hoping to get an answer which will furnish the basis for a frisk.
The fruits of that labor are starting to show up in appellate court decisions here, and the early results show that the cops still have some kinks to work out. The court has tossed several other searches in similar circumstances (although not quite as blatant) as Acy, the most recent entry in that category being State v. Hope just a few weeks back. From the cases I read and the cases I handle, it appears that whatever training the Cleveland police get in search and seizure is woefully inadequate.
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A modified, and substantially abbreviated, schedule here at The Briefcase for next week. I've got to go in for a minor medical procedure next week, but since the only "in-network" facility covered by my admittedly abhorrent medical insurance plan is Rob & Emma's Hospital and Tire Center in Lodi, we're not sure how that's going to go. Assuming I pull through, I'll be back on Wednesday with a post on the US Supreme Court's argument in US v. Yeager, a case involving the collateral estoppel aspects of double jeopardy. The Case Update and What's Up in the 8th will follow. See you then.