What's Up in the 8th
When is a school a school? When is a citizen informant not anonymous? When does an offense involve a minor? These and other metaphysical inquiries are answered by the 8th District's decisions last week.
Unhappy news for M.R. Back in 2007, he took some pictures of his three-year old child "in a silly pose after a bath," and showed it to a stranger, who went to the police. M.R. subsequently pled to an information charging him with pandering obscenity, a first-degree misdemeanor, and was given a year of community control sanctions. He filed for expungement in 2009, which the trial court granted. In State v. M.R., the 8th reverses on the basis of R.C. 2953.36(F), which prohibits the granting of expungement for "convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age when the offense is a misdemeanor of the first degree or a felony," rejecting his argument that the "original contemplated charge was pandering obscenity involving a minor," and that the removal of the latter aspect meant that the child wasn't in fact a victim.
Half of the 8th's criminal decisions cases last week involved search issues, and the state picks up three wins in four tries. Two of them are easy, though. In State v. Rowe, the cops see Rowe walking away from an idling vehicle in a parking lot after midnight, and, concerned that the vehicle might be stolen, call out to him. He takes off running, and is finally apprehended. The moral of this story is that if The Man calls out to you and you walk away, that isn't going to create reasonable suspicion sufficient to warrant an investigative stop, but if you run, it will.
State v. Geiter should be an easy one, too. A police officer called dispatch to perform a random check of the license plate on the car in front of him, and was told that the plate came back as showing a stolen vehicle. The officer stopped the car, Geiter rolled the window down, the cop smelled the odor of the demon weed, and this all ends with the cops finding a gun under Geiter's seat.
Well, actually, it doesn't end there. Turns out it was Geiter's mother's car, and she had reported it stolen, then called the same day to say she'd recovered it. Although the criminal investigation databases showed the correct information about the car, the Cleveland police showed the report of a stolen vehicle was still active.
The Supreme Court addressed virtually an identical situation two years ago in Herring v. US, where the defendant was arrested based on a warrant that had been recalled. The Court found there was no real benefit from applying the exclusionary rule to a simple case of negligent record-keeping. (Discussion here.) That should be that, but instead the Geiter court engages in an exhaustive discussion of various doctrines of search and seizure law, and comes ominously close to pronouncing that there's a good faith exception for warrantless searches.
State v. Harris presents an easy win for the defendant. RC 3767.06 allows a court to declare a property a nuisance if there's drug activity, and order it boarded up, which is what happened to Chez Harris in 2007. On three separate occasions in 2009, the cops, in response to citizen complaints of drug activity, made a warrantless entry and search of the premises, each time finding Harris in the company of a crack pipe. One problem: the statute provides for a one-year period; the injunction wasn't renewed after that, so the court holds that Harris had a privacy interest. One man's crack house is another man's castle, so to speak.
The difficult case is State v. Cisternino, in two Cleveland police officers are parked in their cruiser when someone -- "referred to only as 'the citizen'" -- walks up and tells them that he saw a white male wearing a black leather jacket and jeans standing near a Sunoco station a block away; the male had "flashed" his gun at the citizen, and the citizen expressed concern about a possible robbery. The officers went to the station, saw Cisternino engaged in conversation with a female, doing nothing out of the ordinary, but the police swooped in, put Cisternino over the hood of their car and patted him down, and sure enough, found a gun.
Had this been an anonymous tip, the search would have gone out the window in a heartbeat. But, as the court explains, there are three classifications of informants: the anonymous tipster, the "known informant" (i.e., a snitch), and the "identified citizen informant." While information from the former can't serve as the basis for a stop without corroborating indications of criminal activity, information from the latter two can: the snitch because he's given reliable information in the past, and the citizen because people aren't going to make false reports to the police if the police know who they are, and can hold them accountable if their information turns out to be untrue.
Of course, as might be discerned from the above account, the police didn't get any identifying information about "the citizen." No matter; there was nothing to indicate that he would've refused to identify himself if the police had only asked.
Whether an informant is "anonymous" depends on whether the informant himself took steps to maintain anonymity, not on whether the police had time to get his name.
The court upholds the search, assuring us that it does not "stand for the proposition that every time a citizen informant reports what he or she considers suspicious activity, the police are given carte blanche to stop and search an alleged suspect." Maybe not, but I guarantee you that a lot of prosecutors and judges will read it that way.
Finally, we come to State v. Curiale, in which the evidence for the schoolyard specification in Curiale's indictment for drug trafficking was the testimony of the arresting officer that the "there's a day care right on the corner" of where the arrest took place, and his affirmative response to the question of whether he knew if it was "State certified." The statute defines "school" generally as something being operated by a board of education, and Curiale argued that the failure to introduce evidence of that was fatal to her conviction of the specification. Not so, says the court; that issue was addressed by the Supreme Court in State v. Manley, where the court held that "the state was not required to present direct evidence that the school was operated by a board of education."
Actually, that's a rather broad reading of Manley; the defendant hadn't raised the issue at trial, either through cross-examination, motion, or proposed jury instruction, and the court merely determined that the 3rd District had erroneously held that failure to prove it was plain error. It's not clear that it was raised as an issue by the Curiale at trial in her case, but what is clear is that just last year, in State v. Darling, the 8th District vacated a conviction for the schoolyard specification on the precise grounds urged by Curiale.