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What's Up in the 8th

The court takes a look at four search cases, including an attempt by an (ex-)judge to create a new cause of action.  That, and the usual spate of cases involving screwed-up pleas or sentencings...

Rule 11 specifies that a defendant has to be advised of certain constitutional rights at the time of his plea.  Is one of those the right to counsel?  Not if he's represented by an attorney at the plea, and he's asked whether he's satisfied with the attorney and responds affirmatively, says the court in State v. Block.  On the other hand, yet another reminder to attorneys handling an appeal:  check the journal entry.  In State v. Walls, the trial court sentenced the defendant to five years imprisonment on four convictions, but didn't specify a separate sentence for each offense.  That gets the case bounced for lack of a final appealable order.

And if you're the lawyer representing the defendant at sentencing, you better be the one to raise the issue of costs.  In State v. Luna, the court had made no mention of that subject at the sentencing hearing, but imposed them in the journal entry.  No problem, says the court; the law is not that a court can't impose costs on an indigent defendant, but that the court may waive costs if the defendant is indigent.  There's no obligation to, and if the defendant hasn't filed an affidavit of indigency, too bad.

Defendants batted .500 in search and seizure cases last week, winning one, losing one, and splitting the difference in one.  In State v. Clay, the police were doing a warrant sweep in East Cleveland, their task complicated by the fact that the description given them of the suspect was only that he was a "black male."  To no one's surprise, the police spotted one standing outside a car; it was Clay, who had the misfortune of being one of the 12,000 or so denizens of the city to match that description.  The officer asked for Clay's identification; he said it was in the car.  Before allowing Clay to retrieve his ID, the cop patted him down "for officer safety," and discovered marijuana.  Although the car was legally parked on a private driveway, the officer decided to impound it, and an inventory search revealed several rocks of cocaine.  It is unclear which is the greater mystery:  why the State chose to appeal the grant of the motion to suppress, or why the court felt it necessary to devote 12 pages to affirming it; a simple "are you nuts?" would have sufficed.

State v. Hopper gives the court its first opportunity to consider Arizona v. Gant, the car search decision handed down by the US Supreme Court in April.  Gant essentially overruled the holding in New York v. Belton that cops could search the interior of a car pursuant to an arrest, even if the arrestee was no longer near the vehicle.  When I discussed Gant, I'd mentioned that Gant still permits a vehicle search if "it is reasonable to believe the vehicle contains evidence of the offense of arrest," and that, for that reason, Gant would probably "have much more limited application to drug arrests." 

That's pretty much what happened in Hopper:  The cops made a traffic stop and noticed the smell of marijuana as they approached the car.  They removed the occupants, handcuffed them, and searched the car.  Finding two bags of demon weed and a scale, they arrested the occupants for transporting the stuff.  At the stationhouse, Hopper was found with crack cocaine. 

Appellate counsel made a clever argument:  handcuffing constituted an arrest, and the arrest couldn't be justified by what the search found.  The court concludes that the handcuffing "merely constituted a reasonable measure to ensure officer safety," and focuses on the correct issue:  whether the police had probable cause to search the car under the automobile exception to the warrant requirement.  The smell of marijuana did just that.

The court comes to a correct result, but via a more questionable route, in State v. Quinones, which actually involved three searches:  a car, an apartment, and a house.  The trial judge had held that Quinones lacked standing to challenge the search of the apartment, on the grounds that it wasn't used as a residence, but as a place to stash drugs.  The court finds that Quinones had a legitimate expectation of privacy in the apartment by virtue of his having stayed there the night before, and having the keys to it.  What's not clear from the opinion is why that would matter; from the brief recitation of facts, it appears that Quinones leased the apartment.  The court cites to a questionable 9th District decision which had concluded that an overnight guest did not have standing to contest the search of an apartment that was used for nothing more than the packaging of drugs.  Quinones was not a guest, though, and his possessory interest in the property was sufficient to give him standing to contest its search.

Finally, we have State ex rel. Kelley v. Junkin, in which a local municipal judge -- since defeated for re-election, an event largely unlamented by those who practiced before him -- had broken new ground in 4th Amendment law.   Kelley was embroiled in litigation with her late husband's law firm, and was suspected of having sent an envelope containing white powder to one of the firm's lawyers.  The police wanted a DNA and handwriting sample from Kelley, and so filed a "Motion to Compel Evidence" in a case captioned "In re:  Orange Village Investigation, Incident No. 2006-146 v. Lynn A. Kelley."  Kelley filed a writ of prohibition against the judge for granting the motion; he defended it on grounds that it was the "functional equivalent" of a search warrant.  That Kelley did not reside within his jurisdiction was one of the problems; that the "motion" was not notarized, and was not even included in the pleadings, was another, and the court tosses the whole thing.

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