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What's up in the 8th

Ever wonder why cops treat the 4th Amendment with borderline disdain?  Because they see lawyers and judges spending hours and days mulling over decisions which the officers have to make in a split second.

For example, let's say you're a cop who's looking for someone named Frederick, pursuant to an arrest warrant.   You look up his address and go there with several other officers.  You knock on the door, someone comes down and looks through the window.  You think it's Frederick, but you're not sure.  He runs upstairs.  Do you break down the door and run after him?  And when you get upstairs, you find that door locked, too; do you break that one down?  And when you arrest the guy, it becomes clear that it's not Frederick; he's six feet tall and weighs 200 pounds, while this guy is shorter and weighs about 140.  Then one of the officers yells, "gun!"  Do you search the rest of the house?

The answers to all those questions, as provided in State v. Shaffer, are "yes."  An arrest warrant gives the police authority to enter a home in which the suspect lives when there is reason to believe that he's in there.  Even if there was no gun -- the opinion doesn't mention one way or the other -- the possible presence of Frederick in the house is sufficient to authorize the sweep.  Note, though, that if it had actually been Shaffer's house, it all gets thrown out:  police can't use an arrest warrant to enter a third party's house, even if they reasonably believe the suspect is there.  Unless maybe if there are exigent circumstances.  But if they do enter the third party's house and arrest the suspect, the suspect's got no standing to complain about it; it's not his house.

Got that?

Or say you're a cop, and you pull someone over for not putting on their signal before they make a right turn, something which those of us who are white, over 40, and drive nice cars never have to worry about.  As you approach the car, you observe the occupants making "furtive movements."  Can you order them out of the vehicle?  And if one of them continues to cup something in his hand as if to hide it, can you order him to open his hand? 

These questions are also answered affirmatively, in State v. PopeOrdering the occupants out of the vehicle does not implicate the 4th Amendment at all.  Ordering the suspect to open up his hands does constitute a frisk.  Furtive movements alone do not provide a basis for a frisk, at least according to the 11th District's decision in Wickliffe v. Hancock.  But here, it's the combination of the furtive movements and the cupped hand that does the trick.

Although those two decisions are on the money, the court fares less well in two others.  State v. Banks involves a car chase which resulted in the death of a third party, with the defendant ultimately pleading guilty to involuntary manslaughter and failure to comply (the old "fleeing and eluding" statute).  A few months back, in State v. Williams (discussed here), the Supreme Court held that when you shoot somebody and kill them, the charges of felonious assault and murder merge, becuase "when Williams attempted to cause harm by means of a deadly weapon, he also engaged in conduct which, if successful, would have resulted in the death." Same thing here, the court says: if the offenses were not merged, "appellant would be convicted of causing a substantial risk of harm to a person while also convicted of causing the death of that same person, based on one single incident."

Well, I'm sorry, that's just wrong.  The single incident in Williams was the act of shooting.  While the ultimate result of the failure to comply was to cause the death, though,  that offense involves an entire course of conduct separate from its result.  One can commit involuntary manslaughter without fleeing the police, and vice versa, and a separate punishment for each is perfectly appropriate.  They're not allied offenses.

Equally problematic is State v. Williams, in which the defendant argued that his conviction for felonious assault was unsupported by sufficient evidence that the victim had suffered "serious physical harm," a tenuous contention given that Williams had slammed the victim's head into a brick wall so hard that the victim lost consciousness, had to be hospitalized for two days, missed time from work because of his inability to walk straight, and still suffered from headaches at the time of trial.  Rather than simply say that such injuries would qualify under any conceivable definition of serious physical harm, the court repeats holdings from innumerable past 8th District cases that "where injuries to the victim were substantial enough for the victim to seek medical treatment, the jury may infer the victim suffered serious physical harm."

Now, whether the victim objectively required medical treatment is a perfectly valid consideration in determining whether they sustained serious physical harm.  But here the court turns the question into whether the victim subjectively believed she needed medical treatment, or simply that she desired to get medical treatment.  What's most maddening is that in this case, like virtually all the others the court cites, the evidence of serious physical harm was virtually indisputable. The line about seeking medical treatment is wholly unnecessary, but sooner or later, a case is going to come along where the victim got a bloody lip but decided to go to the ER, and then we're stuck with this whole line of cases saying that's enough to bypass the question of whether the victim really suffered serious physical harm as defined in RC 2901.01(A)(5).


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