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What's up in the 8th

Some good search and seizure decisions, the State gets smacked down in a sentencing case, and best of all, no head-scratchers this week.

I'm accustomed to seeing several sentencing decisions in the 8th's weekly work, but this week features an anomaly:  two appeals, but both by the State.  In State v. Ross, the defendant pleads to one count of attempted theft in office, a felony five, and the judge, obviously feeling this isn't exactly the Manson murders, sentences the guy to a day in jail, which he's already served, $100 in court costs, $150 fine, and out the door.  The State appeals.  Why?  Because the judge didn't ask for a pre-sentence report, and the law says a judge can't give a community control sanction without asking for one.  (Even though CCS wasn't imposed, it's still considered a CCS when you do anything other than send the guy to prison.  Imposing a jail sentence, for example.)  The court agrees, vacates it, and remands it for resentencing. 

Gosh, I wonder what will happen now?  Do you think maybe when the case goes back to the judge and she gets a pre-sentence report, she's going to decide that she should impose some other sentence?  I'm betting not.

The defendant in State v. Peck got 45 days in jail after a conviction for receiving stolen property, and the state appealed, claiming that, in light of Peck's 18 prior felony convictions, the sentence was "wimpy," and that Peck should have been place on post-release controls to ensure he paid the ordered restitution of $1,500.  How the court would impose PRC on a non-prison sentence is as unclear as what the State was doing appealing the case in the first place; the State's right to do so is limited to arguing that the sentence is contrary to law, and the real argument was that the trial court abused its discretion by being so lenient.  The State never bothered to introduce Peck's criminal record as an exhibit in the trial court, though, so the panel says the State waived this issue. 

It's a mixed bag for defendants in a trio of search and seizure cases.  State v. Morrison presents several interesting issues.  An informant, both confidential and reliable, as all of them are, had told detectives that Morrison was selling drugs.  After fits and starts, a deal was arranged:  the CRI drove to a gas station, where detectives observed a Lincoln pull up next to him.   The passenger in the Lincoln, who turned out to be Morrison, motioned for the CRI to follow, and the driver of the Lincoln drove the wrong way down a one-way street, and was promptly stopped for that by the police.  They searched Morrison, finding drugs; Hudy, the driver of the car, helpfully told the police that Morrison was staying at his place, and even more helpfully signed a consent to search the apartment.  The police did, and found more drugs.

All of which gets thrown out:  there was no indication of any actual drug exchange, and the driver's going the wrong way didn't create a basis for searching the passenger; Hudy lacked either the actual or apparent authority to consent to a search of Hudy's apartment.  And that's that.

The defendant in State v. Arrington doesn't fare so well.  He's standing outside his SUV, pumping gas, when a police officer approaches, thinking that he knows the owner of the SUV.  Turns out he doesn't, of course, but he smells some burning marijuana in the vehicle, and the resultant search leads to the discovery of the customary assortment of drugs.  Arrington claims that the officer didn't have the right to stop his vehicle, and there is some dispute as to the facts; the defense witnesses claimed that the officer pulled his car directly in front of the SUV, blocking it in.  CrimR 12(F) says that a trial judge is state its factual findings on the record, but the judge didn't do that.  No matter; the defense waives that if it doesn't object, and the only remaining question is whether there's sufficient evidence to support the trial court's decision.  Which there is, because, at least according to the officer, this wasn't a stop at all, it was a "consensual encounter."  Once the cop smelled the marijuana, he had probable cause to do the search.

State v. Kiraly is a remarkable demonstration of appellate forebearance.   Rocky River Detective Gulas responded to a call regarding the theft of a safe, and learned that it contained an ATM card.  Through quick police work, he found that the card has been used to withdraw $200 from an ATM.  He obtained the video tape, and more good police work led him to identify Kiraly as the person who made the transaction.  He put that into an affidavit, coupled with the allegation that Kiraly had been convicted of murder and attempted murder, and got a search warrant for Kiraly's apartment, where he found evidence of the crime, and of a separate theft.

Oh, that good police work?  Not so much, it turns out.  The surveillance tape, when matched to the transaction times, showed that the $200 transaction from the stolen credit card was done by a black woman.  (Kiraly's a white male.)  Gulas claimed he missed this because his "focus" was on Kiraly.  Actually, the male might not have been Kiraly at all; the trial judge who viewed the photograph (the municipal judge who issued the warrant had never seen them) termed it a "grainy, low-quality black and white photo."  And those convictions for murder and attempted murder?  They were arrests, not convictions.  Guraly attributed that to a "typographical error."  Oh, and that the affidavit said the police wanted to search a 1981 Corvette, while the warrant specified a 1985 Buick?  Another typo. 

The trial judge found that all this didn't provide the issuing judge with enough information to issue a warrant, and granted the motion to suppress.  The 8th reverses, finding that the problem wasn't in the lack of information, but whether it was truthful.  On the one hand, the affidavit wasn't the "bare bones" type which can't support a search.  On the other...

the trial court never specifically ruled whether the affiant made any knowingly,intentionally false statements, or made false statements with reckless disregard for the truth, and if so, whether the affidavit's remaining content is sufficient to establish probable cause.

So the court remands it back to the trial judge for that purpose.

Gosh, I wonder what will happen now.


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