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Close encounters of the consensual kind

I've commented before on how, in search cases, police officers have a split-second to make decisions which judges and lawyers can then spend months second-guessing.  Sometimes, though, it's the citizen who has to make a split-second decision.  Like, say, how to respond to an officer's request for identification.  Joseph Houser had just that decision to make, and last week, in State v. Houser, the 8th District confirmed that he'd made the wrong one.

The Maple Heights police got an anonymous tip that "several males were hanging out, possibly up to some kind of illegal activity," and, armed with that information, went to the area.  There, they spied Houser and another male sitting on the guardrail, minding their own business.  The cops nonetheless approached, and ask Houser for ID.  He provided it to them, they ran a record check on it, and, finding that he had an outstanding warrant, arrested him and found marijuana.

Everybody agreed that the police had no legal basis for stopping Houser, so the question turned on whether the encounter was "consensual."  Such encounters don't even implicate the 4th Amendment, on the theory that the police are no different from other private citizens; a police officer, just like a private citizen, can walk up to you on the street and ask you questions, and, just like you could with a private citizen, you have the right to turn and walk away.

There were two sides to that, of course.  The cops testified that they simply asked for the identifications, and up to that point Houser wasn't in custody and was free to leave.  Houser testified that the officers approached in an "aggressive" manner, and that it was his belief that "when an officer asks you for your identification, you have to comply."  The trial court found it a close call, but decided in favor of the officers.

The appellate panel began by examining a pair of US Supreme Court decisions.  Hiibel v. 6th Judicial District holds that "there is no seizure when an officer asks only for identification."  Florida v. Bostick states that "the police may ask for identification of a citizen so long as they do not convey the message that compliance with their request is required."  The court then looked to one of its prior decisions, which contained seven factors to be used in determining whether compliance with a police request was voluntary -- e.g., "there was the threatening presence of several officers," "there was a show of force by the officer" -- and decided that the balance lay with the finding that the encounter was a consensual one.

There are a number of problems with the court's opinion, though.  First, the case law is a bit more muddled than the opinion gives on.  Hiibel involved an arrest under a Nevada statute which required a person lawfully detained to identify himself; even Hiibel acknowledged that the officer had a reasonable basis for stopping him, something that's lacking here.  Bostick involved a Florida police tactic of boarding buses just before departure and asking certain passengers for permission to search their luggage.  The Florida Supreme Court held that this implied that the person couldn't leave the bus unless he complied with the "request," but SCOTUS disagreed.  (To their eternal credit, after remand the Florida court threw out the search on state constitutional grounds.)  Critical to Bostick, though was the fact that the police there had specifically advised Bostick that he had a right to refuse consent; here, Houser had not been informed of his right to not to comply.

Second, the court gives undue deference to the trial judge's decision.  After citing the law requiring an appellate court to accept findings of fact if they are supported by competent, credible evidence," the court noted that "it is apparent that the trial court accepted the testimony of the officers, and not Houser."  But it's not clear what the factual disputes were, other than Houser's subjective beliefs, which don't really play into the result.  It wasn't as though he was claiming that the officers had their guns drawn, and the officers claimed they didn't.  Of the seven factors that play into the calculus of determining whether the encounter is "consensual," three counted against, and four counted in favor.  The trial court was entitled to deference on she resolved the factual disputes on each of those factors, but she wasn't entitled to deference on how she weighed them.  The appellate court can do that on its own.

Finally, the court almost completely overlooks the fact that the police did not simply request Houser's ID, they took it and ran a record check.  The opinion doesn't say how, but this would certainly have required Houser's further detention for at least several minutes.  I say "almost" because the court does admit that it has "misgivings" about that, and that the contention "that Houser was free to leave when the officer walked away with his identification is specious."  Instead of addressing that, though, the court jumps to the fact that the drugs weren't found until after the warrant was discovered and Houser was arrested.  "Even if the detention were at some point illegal, the existence of the warrant and the search pursuant to arrest on that warrant was valid."  Well, I'm sorry, but that's wrong:  if the warrant was discovered as a result of the illegal detention, then there's no valid arrest, and no valid search incident to arrest.

And that's what should've happened here.  This goes back to a post I did a couple weeks ago about diversity among judges, and them not having appreciation for how many people live.  It's a fair bet that the six Supreme Court justices who decided Bostick had never been sitting on a bus and had police officers get on, walk up to them, and "request" to see their luggage.  It's one thing for judges to reflect on the Seven Factors of Consensual Encounters in the comfort of their chambers, and an entirely different thing for some 20-year-old black kid confronted by two police officers asking for identification to conclude that he's got the right to tell them to go pound salt.

But forget all that.  The fact is that this wasn't a police officer coming up and just asking for somebody's name.  This was a police officer taking that person's identification, taking it over to his police cruiser, and running a record check on it.  And if you believe that the 4th Amendment means the government shouldn't be able to mess with you unless they have some basis for believing that you're messing with somebody else, that's not how things should work in this country.

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