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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Show me the money

A number of people have suggested ways in which I could make money off this blog.  I may have stumbled across one, albeit inadvertently:  pimping for the county prosecutor's office.

A couple weeks back, I highlighted two 8th District cases on search and seizure issues, one of which was State v. Pettegrew.  I've been quite complimentary of the 8th's body of work on the Fourth Amendment, and, given the cases I run across when I do the weekly updates here, actually quite grateful that I don't practice in a district in which the legitimacy of an investigative stop is determined by using the test of what a reasonable Gestapo agent might do.  In Pettegrew, a cop testified that, while surveilling a "high drug activity" area, he'd initiated a stop after seeing a passenger reach into Pettegrew's car and engage in some "hand interaction."  The court reversed the denial of the motion to suppress, holding that the cop didn't have reasonable suspicion to make the stop because he hadn't seen anything actually exchanged, and discounting the testimony about the "high drug activity" with the customary statement that one doesn't relinquish one's constitutional rights by living in such an area.

I expressed some problems with that ruling:

It’s hornbook law that “reasonable suspicion” for a stop is to be determined from the totality of the circumstances, and the court instead engages in a common fallacy:  taking each circumstance and evaluating it on its own.  Thus, the fact that this was a high-crime area is of no significance, because there are court decisions stating that people who live in high-crime areas do not thereby surrender their constitutional rights.  Well, that’s certainly true, but does that mean it’s no longer a circumstance that can be considered?  And given the nature of drug transactions, and the constraints upon the police in observing them, requiring that an actual exchange of items be observed arguably sets too high a hurdle.

Well, the other day I got an email from the attorney who won the case, telling me that the State had filed a motion for reconsideration, citing my blog in support.  I took a stroll over to the courthouse, and sure enough, the above paragraph was quoted verbatim in the motion.

I was somewhat nonplussed by this, since I didn't remember getting a payroll check from County Prosecutor Bill Mason.  I know several prosecutors do read my blog, although that number is bound to increase when I open the Special Prosecutor's Section of it next month, which will tread more lightly on the case analysis and instead feature more pictures and some nifty word puzzles.  I double-checked the charter for the Cuyahoga County Defense Lawyers Association and was heartened to see that it didn't say anything about giving aid and comfort to the enemy, so my membership is probably safe.

Perhaps the most puzzling thing about the decision to enlist me in the attempt to persuade the appellate panel to change its mind is why the prosecutor thought it would do any good.  It's flattering to imagine that my analysis of the 8th's cases each Tuesday morning finds the district's judges clustered around their computers, eagerly waiting to learn which of them has earned my praise, and which my scorn.  Sadly, a look at my recent track record down at the Lakeside Courthouse tells a different story. 

Of course, there's another possibility, which dawned on me when I read last week's story about how Mason's employees were so impressed by his leadership that they've dipped into their pockets to shower him with a cool hundred grand in campaign contributions over the past three years.  So Bill, if your motivation in enslisting me was to provide an additional source of funds for your next office-seeking adventure, well... the check's in the mail.


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