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What's Up in the 8th

I practice in Cleveland, and every Tuesday here I look at the decisions of the Cuyahoga County Court of Appeals.  If I lived in Athens, I wouldn't be able to do "What's Up in the 4th" every week.  Since the beginning of the year, the 4th District has issued four decisions; last week alone the 8th handed down forty-seven. 

Lucky me.  Let's take a look.

By my rough count, the State won over 80% of all appeals in the 8th in 2010, but less than 50% of the cases involving 4th Amendment issues.  It doesn't appear that they'll improve upon that record this year, with two losses already, and they can't claim that it's because LeBron James left the prosecutor's office.  In State v. Lanier, the cops get an anonymous tip that somebody is selling drugs from a black Hummer at a certain address.  If you read this blog, or just about anything pertaining to search and seizure, you know that an anonymous tip doesn't provide an adequate basis for an investigative stop unless the police observe something corroborating criminal activity.  Alas, if you read this blog, you also know that the Cleveland police have no more understanding of the 4th Amendment than they do of particle physics.  Several cop cars pull up in front of and behind the suspect vehicle, the police get out and order the occupants to put their hands up, and drugs are subsequently found.  And subsequently thrown out.  A fine point here:  a single cop car pulling up, with the officers simply approaching the vehicle, might have been deemed a consensual encounter; boxing the car in and ordering people to show their hands is not.

A similar result obtains in State v. Williams, where the police decided to "issue Mr. Williams some citations" for weaving through traffic in his "small scooter."  Williams couldn't produce a drivers licence or insurance, so the officer put him in handcuffs and patted him down before placing him in the cruiser.  He pulled out a wad of tissue and opened it, finding a small bag of crack.  The trial judge found that the wad of tissue didn't meet the requirements of the "plain feel" doctrine -- it wasn't identifiable as a weapon or contraband -- but the State argued on appeal that this was really a search incident to arrest, rather than a pat-down.  An arrest, however, requires an intent to do on the part of the officer and an understanding that it has been done on the part of the arrestee; here, the court points out, nobody thought that Williams had been arrested.

An unsuccessful search leads to one big decision this week, in State v. EdwardsThe police arranged for the purchase of 1.5 ounces of crystal meth from Edwards, and stopped his car on the way to the buy.  Despite numerous searches of the vehicle over the next few months, the police found only 3 grams of meth.  On the very day that Edwards entered a guilty plea to possession of those drugs, the cops got a tip, searched the vehicle again, and found the 1.5 ounces hidden in the fuse box.  After Edwards was sentenced, the State indicted him for possession of the hidden drugs.  The trial court dismissed on double jeopard grounds, and the court affirms.

It's a closer call than you might think.  The decision is largely based upon a 6th Circuit case, Rashad v. Burt, where the police discovered drugs in the defendant's house, then a week later discovered more in the car he'd arrived in when the warrant was being executed. Nonetheless, the state instituted two separate prosecutions, the one for the car coming after a conviction for the drugs in the house.  In some ways, Edwards is in a better position:  there, at least, all the drugs were in a single location, his car.  The successive prosecution angle in Burt is more obvious though; Edwards wasn't initially charged with the second quantity because the State chose to defer prosecution, but because the police hadn't discovered the larger amount.  The moral is, I suppose, look harder.

State v. Page is another significant decision, where the court again wades into the morass of sexual offender notification and registration laws in the wake of State v. BodykePage had been convicted of importuning and was labeled a sexual predator in 2005, then did a year in prison when he failed to register in 2006.  When the Adam Walsh Act went into effect in 2008, he was reclassified as a Tier III offender, and in July of 2009, was indicted for again failing to register; under the AWA provisions, this resulted in a mandatory minimum three-year prison sentence.  The court reverses, finding that since Bodyke held that the reclassification was impermissible, "it cannot serve as the predicate for the crime for which the defendant was indicted and convicted."

There's a problem with this argument, though.  Although Bodyke held that reclassification was impermissible, it didn't eliminate the reporting requirements under the previous classification.  For example, I recently got a case dismissed because my client had been classified as a sexual offender, with a one-year reporting requirement, and then reclassified as a Tier III offender, with a quarterly reporting requirement.  He'd been prosecuted for failing to report in the ninety-day period, when actually he wasn't due to report for another year.  Obviously, Bodyke would affect that.  But under Megan's law, the precursor to AWA, a sexual predator was required to report every ninety days, too.  To be sure, the verification requirements under AWA are more onerous -- an offender has to register not only in the county where he lives, but where he works and goes to school, and has to supply his drivers license and email addresses.

In Page's case, it appears that he violated his verification requirements under either law, leaving as the only question whether the AWA's enhanced penalty -- the mandatory minimum for a second offense -- can be imposed.  The dissent makes a good argument that Bodyke doesn't affect that.

The only really odd decision this week was State v. Scimone, and not because of the result.  Scimone was convicted of stealing money from a liquor store where he was employed, and argued manifest weight on appeal, claiming that the evidence against him was circumstantial and arguing that "his conviction cannot be predicated solely on circumstantial evidence when that evidence does not preclude all reasonable theories of innocence," based upon a 1983 Ohio Supreme Court case.  The court proceeds to analyze that case and others of that ilk, and concludes that here the evidence does indeed preclude any reasonable theory of innocence.

As I'm reading the opinion, I had to check my computer to make sure I hadn't inadvertently pressed the icon which allows me to travel back in time.  The case law holding that circumstantial evidence must be "irreconcilable with any reasonable theory of innocence" was overruled way back in 1991.

Somebody didn't get the memo.

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