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Case Update

The US Supreme Court's work last week was notable for what it did do and what it didn't.  In AT&T v. Concepcion, which I'll discuss in more detail later on this week, the Court held that the provision in AT&T's cell phone contracts requiring consumers to submit all disputes to arbitration, and to waive their right to form a class action in the proceeding, was enforceable, pre-empting California law which allows such actions.  The Court also denied cert in Virginia v. Sebelius, which challenges the new Federal health care law.  There have been five District court decisions on the law -- three upholding it and two striking it down, either partially or totally -- and Virginia had asked the Court to bypass the normal appellate process and take the case directly.  The Court refused, but oral argument in the appeals courts on two of the cases is scheduled for this summer, so it's quite likely that the Court will take up the case next Term, and possibly render a decision just before the 2012 presidential campaign.

The outcome of that is difficult to gauge at this point.  There had been claims that new Justice Elena Kagan would have to recuse herself because of her service as solicitor general in the Obama administration, but she testified at her nomination hearings that she was only tangentially involved with any discussions concerning the issue while she was solicitor general.  Notably, she did not recuse herself from consideration of the cert petition.  Given the ideological split on the constitutionality of the measure -- the two decisions striking it down came from Republican judges, and the three upholding it from Democrats -- Kagan's participation is a key factor.

Down in Columbus, only one decision, that involving suits for negligence in performing a mortgage appraisal.  To the surprise of everyone who reads this blog, and everyone who knows me, and myself, for that matter, I'll be discussing that one in more detail later this week, too.

On to the courts of appeals...

Criminal.  2nd District says right to frisk for weapons "virtually automatic" when individual suspected of drug trafficking, amount of drugs immaterial... Aggravated robbery and felony murder are allied offenses, but were committed in this case with separate animus, 6th District rules... Reasonable suspicion, not probable cause, required for quick search for weapons in interior of car, says 2nd District... 8th District vacates prison sentence for violation of community control sanctions, says prison can't be imposed because judge didn't specify at sentencing what prison sentence would be imposed for violation... 2nd District holds that right to allocution pertains to juvenile delinquency proceedings... Picky, picky:  trial court had no authority to address anything other than post-release controls at resentencing, imposition of original sentence improper, 9th District rules... 6th District determines that after police searched car and found no contraband, they had no right to detain defendant further, tosses search of defendant's person, even though defendant gave consent... In Alford plea, court must make "enhanced inquiry" to determine plea is a rational decision on defendant's part, but such inquiry not required where only tenuous denial of guilty offered, and State never informed that such a plea was being offered, says 3rd District... Judgment entry of conviction need not include dismissal of other counts to be final appealable order, says 5th District...

Civil.  6th District affirms summary judgment to day care center, says no evidence of negligence in two-year-old child sustaining broken arm during playtime... Nurse not qualified to testify as expert witness regarding proximate cause of patient's bedsores, says 10th District... Sovereign immunity not available to city in suit to recover damages of business caused by flooding resulting from alleged negligent operation of city sewer system, 10th District holds; day-to-day operating of system constituted proprietary function...

More on PRC.  There have been several cases which have held that a defendant can't be convicted of escape for not reporting to his parole officer if post-release controls weren't properly imposed, but the 2nd District, in State v. Blackshear, takes that one step further.  A year after Blackshear got out of prison, his parole officer conducted a search of his residence.  No warrant, but no problem:  a parolee normally waives his 4th Amendment rights, at least to the extent of requiring a warrant for a residential search.  The officer found guns and drugs, resulting in another conviction and another three years in the joint for Blackshear. 

But wait!  The journal entry of his original conviction had provided that he would have three years of discretionary post-release control, when in fact it was mandatory.  This means that the imposition of PRC was invalid, and if that was invalid, the APA had no right to search his residence, and so, Blackshear argues, the trial court should have granted a motion to dismiss.  No, says the court; dismissal didn't lie because the new charges were unrelated to the imposition of PRC.  Blackshear's attorney should have filed a motion to suppress, not a motion to dismiss.

But wait!  If a motion to suppress should have been filed, then failure to do so was ineffective assistance of counsel.  So the 2nd District sends it back for further proceedings, to determine whether someone consented to the search or there was some other exception to the warrant requirement.

That's good police work.  The 9th District's opinion in State v. Slone explains how the police came to suspect that the defendant was involved in the cultivation of marijuana:

On a cold January day, officers were in Akron conducting surveillance of a drug transaction unrelated to Slone and Reeder. One officer was positioned across from the Akron Garden Center. From his car, he observed Slone's minivan being loaded with two large bags of topsoil. Based on his experience, he thought the purchase of two large bags of topsoil in January was unusual.

One thing led to another, culminating in a search of Slone's home, which uncovered 69 marijuana plants.

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