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What's Up in the 8th

How bad were things for criminal defendants at the Lakeside this week?  Bad enough that the State won two, count'em, two suppression cases.  There was a reversal of a municipal court conviction, which is pretty much of a dog-bites-man story anymore, but other than that, nada.

A long time ago, in a galaxy far, far away, I had a client who subscribed to the sovereign citizen theory.  In pursuit of that, his central claim at his trial (in which he defended himself; I handled the appeal) was that since the indictment had his name in all capitals, and he spelled it using only initial caps, meant that the person indicted wasn't him.  The phrase above, "I handled the appeal," reflects the success of this strategem.

The defendant in State v. Walls teaches that the sovereign citizen theory is just a part of the redemptionist movement, which posits that when the US government went off the gold standard in 1933, it minted money backed  by the net worth of its citizens.  The court takes it from there:

when a child was born in the United States, the child's birth certificate was deposited and voted on the bond market. As a result, every person has a split personality: a real person and a fictional person called the "strawman." Redemptionists claim that the government has power only over the strawman and not over the flesh and blood person, who remains free. Individuals can free themselves by filing UCC financing statements, thereby acquiring an interest in their strawman.

Got that?  Walls ran into trouble when he sent the judge who'd sentenced him in a previous case a 1099 form indicating he'd paid her $10 million.  In his appeal from his forgery conviction, the court rejects his speedy trial and Batson claims, but the opinion omits any mention of whether he was forced to remove his tinfoil hat during trial.

More substance is found in a pair of search cases.  In State v. Hale, a confidential informant set up a buy of 3 pounds of marijuana from a guy named Gary.  Gary's supposed to have the stuff delivered at 5:00 PM; at that time, police see Hale pull up in SUV.  His passenger gets out, carrying a garbage bag with a corner "consistent with the shape of three pounds of marijuana."  The passenger went inside, came out four minutes later empty-handed, and got in the SUV, which drove off.  The cops stop them, get them out of the car and put them in handcuffs, and see $3000 in plain view on console.  The court agrees with the trial court that this sequence of events gave police probable cause to stop Hale's car.

It's amazing what people leave out in plain view for police officers to see, because that's also the situation in State v. Moore.  The cops got a tip that a drug transaction would take place at gas station, stake out the place, and see a car matching the description pull up.  They get out and approach the car, and when they get to it, they see a bag containing crack cocaine in plain view on floor.  Oops, that's one cop; the other sees it in plain view on the console.  The trial judge decides that the cops' story is consistent in most respects, which I guess means that the fact it was inconsistent in the most important respect is immaterial.  The appellate panel is loathe to reverse a factual finding, so the appellant's main argument is that the police didn't have reasonable suspicion to stop the vehicle.  They didn't stop it, though, they merely approached it, and the court correctly concludes that the approach of the vehicle was attempt to initiate consensual encounter, not a stop. 

In Parma Heights v. Barber, the court engages in what might be called appellate nullification.  Barber was convicted of telephone harassment for calling his wife repeatedly during their divorce action.  Despite having a restraining order, the wife chose to criminally prosecute Barber.  His conviction is reversed for insufficient evidence, the court concluding that his messages, which essentially expressed a desire to reconcile, didn't show a purpose to harass, and noting that "in light of the vicissitudes that attend a marital relationship, some matters are best handled by the domestic relations court."

At  a very leisurely pace, apparently.  In Comrie v. Comrie, after two prior continuances, the court granted a third one only on condition that there be no others, in a journal entry prepared by the wife's attorney.  The wife wound up requesting a continuance, the magistrate refused to grant one, and decided the case based on the evidence submitted.  The court rejects the wife's claim that this was an abuse of discretion, professing itself to be "troubled by the apparent practice in domestic relations of granting seemingly unlimited continuances."  Oh, the stories any divorce attorney over there could tell you...

The other civil case of note is Williams v. Clarke, a type of lawsuit dear to the hearts of all civil litigators:  the wet basement case.  The sellers denied any knowledge of water problems in the disclosure form, but Williams, sharp lady that she was, had the home inspected, and was told that the outside walls had excessive moisture, that water was visible on the floor in the front room, and that there was poor drainage, and was advised to consult a water proofing contractor for repair.  Instead, she consulted the sellers, who again claimed there were no water problems, and told her to get a dehumidifier, which she did, for a few months anyway, until she found herself auditioning for the lead role in the sequel to Noah's Ark.  The defendant's prevail on summary judgment, and I've seen a number of appellate court cases along this line where the claim of fraud is rejected; when your own inspector tells you to get a waterproofer, it's hard to claim you had the right to rely on the seller's advice that you didn't need one.  Surprisingly, the case gets reversed, and goes back for a jury to figure out.

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