Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

A week too long

As the Fortunes sang back in 1965, "You've got your troubles, I've got mine."  (And through the miracle of YouTube, you can take a walk down Memory Lane and compare then with now.)  Jerome's trouble is the drug case he picked up:  after a controlled buy of $20 worth of crack, the cops got a warrant for his house, and found just under ten grams of the stuff in his bedroom.  Good luck, bad luck:  over ten would have made it a second degree felony, but the fact that his two kids, both under 18, were in the house makes it a second degree felony anyway. 

The prosecutor's trouble is that the search is bad. 

My trouble is convincing the judge of that.

To put it mildly, the judge is unlikely to win any Friend of the Fourth Amendment awards from the NACDL.  Here in Cuyahoga County, we usually have the suppression hearing right before the trial.  This judge calls the jury up and has them waiting while he does the hearing.  In literature, that's called foreshadowing.

But I've got a shot, simply because the cops were so damned lazy.  The affidavit for the warrant recites that the police had received complaints about a certain house, so they set up a controlled buy through a confidential informant with "Dee."  At the appointed time, Dee showed up at a street corner two blocks from the house and made the exchange with the CI.  After that, Dee walked back to the house and entered it.  That's it.  Here's what the police didn't do:

  • Do any surveillance of the house to substantiate the complaints (e.g., "observed heavy pedestrian traffic")
  • Do a records search to show that Jerome owned the house, or do anything to show that he lived there.
  • Stake out the house to see him coming out of it on his way to the buy.
  • Put a name to "Dee."  There's nothing in the affidavit to indicate that "Dee" is Jerome; in fact, he's described as15 years younger and four inches shorter than Jerome. 

So what you have is some guy selling drugs on a street corner, and then walking into a house.  And for that you're going to get a warrant to search the house?  I find a nice 8th District case right on point, which holds that observing a drug sale away from the premises doesn't provide probable cause for a warrant for the premises.  (And in that case, the cops saw the seller came out of the house on his way to do the deal.)  I file a motion to suppress, attach the case, and figure I've got a shot.

And then Jerome picked up another case.

Same deal, controlled buy, followed by a search of the house.  This time, there's no warrant; the cops go there and see a woman smoking grass on the porch.  She ran inside yelling, and, as the police report relates, so the police followed her into the house.  They found Jerome's wife, got consent to search the house from her, and found some more cocaine in the bedroom.

This is more bogus than the first search.  I put together another motion to suppress, noting that there was no emergency -- this time, they'd staked out the house before Jerome left, so the decision to "further investigate" the house after his arrest wasn't based on any emergency.  As for the consent, I found a nice 2nd District case summing up the law on this point, which is that any consent obtained immediately after the police illegally enter a home and see contraband is tainted.

I've mentioned before that judges vary widely in their participation in the plea-bargaining process.  Some won't even meet with you to discuss it.  This judge is on the opposite side of the spectrum:  he meets with the lawyers after every pretrial, and in this case he decided to have the detective sit with us so we could all come up with a resolution of the case.  My big pitch is the search issues, of course, and even the judge sees the problem with the second search.  As for the first, the cop actually helps me out a bit there by professing that he sees no problems with the warrant.  As I've also mentioned before, with some notable exceptions, most Cleveland police are so poorly trained on search and seizure that discussing the fine points of the 4th Amendment with them is like talking about nuclear physics with a bear.  The judge gives me a hard time about the first search, but I can tell he senses there's a problem.

So it's time to make my move.  Up until a couple years ago, there were prosecutors assigned to every two judges' rooms, and which prosecutor you dealt with at a pretrial depended on who was there and who wasn't busy.  Then the office moved to a "personalized" docket:  five prosecutors were assigned to each floor of four judges, the county was divided into five "zones," and each prosecutor was responsible for all the cases in their zone. 

One of the results of that is that prosecutors are much more familiar with their files; in the old days, it wasn't unusual for a prosecutor to get his first look at the case with you sitting there at the pretrial.  But I'd caught a break here:  the judge had just moved his courtroom two floors up, so there was a different prosecutor on the case.  A good guy, and a sharp one, but he hadn't had time to get up to speed on the intricacies of the case, especially the law, and I decided to take advantage of that.  I pitched the judge on having Jerome plead, and he'd get two years.  "Russ, he's been down six times," the judge says, "I can't give him the minimum." 

I turn to the prosecutor:  "Drop the juvenile spec, and that'll make it a three."  Back to the judge:  "You give him two years, one more than the minimum, and everybody's happy."  The judge nods, and that's all the prosecutor really has to see.  He may not know the file, but he knows this judge, and if this judge is okay with two years, then everybody will be okay with two years.

And that's exactly how it went down.  In fact, I even got the judge to give Jerome three weeks to get his affairs in order -- his wife had just had twins -- before having to report to prison.  Of course, the judge warned Jerome that if he didn't report on time, or that if he caught another case, the two years was off the table.

In literature, that's known as foreshadowing.

Two weeks.  I should've asked for two weeks.  Because if it had only been two weeks, Jerome wouldn't have used that third week to go visit some of his buddies and walk into the middle of a drug raid.

Let's just hope I can figure out a search issue on his new case.

Search

Recent Entries

  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions
  • August 7, 2017
    Two on allied offenses
    A look at the 8th District's latest decisions on allied offenses
  • August 3, 2017
    Thursday Ruminations
    Computerized sentencing, lawyer ads, and songs from the past
  • August 1, 2017
    8th District Roundup
    One thing that doing this blog has taught me is how much the law changes. The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively. The...
  • July 28, 2017
    Friday Roundup
    The better part of discretion
  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture