This and that
A closer look at a few appellate decisions from the last several weeks...
The new criminal rules for open discovery will hit their two-year anniversary next month, and some appellate cases involving them are starting to trickle in. The 1st District's decision in State v. Trollinger addresses one of them, Rule 16(D), which allows the prosecutor to withhold disclosure of certain information in various circumstances.
Even the old rules required a prosecutor to turn over names and addresses of witnesses, unless the prosecutor certified that doing so would put the witnesses in jeopardy. That's carried over into the new rule. Trollinger was charged murder, allegedly having set up a robbery and given the perpetrator the gun used to commit it, and the State certified that he'd threatened one of their witnesses, and several others were afraid of him. Pursuant to Rule 16(F), the trial court conducted a hearing a week before trial, and agreed that nondisclosure was justified.
It's difficult to quibble with the result, simply because it's difficult to imagine how there could be any other one, given the parameters of the rule. The question before the trial court is whether the prosecutor abused his discretion in certifying non-disclosure, and the appellate court reviews decisions regarding discovery for abuse of discretion. The synergy between two very deferential standards of review -- essentially, the appellate court is trying to determine whether the trial court abused its discretion in determining that the prosecutor didn't abuse his -- is pretty much outcome-determinative.
Last year, in my Case Update, I highlighted the 5th District's decision in State v. Cox, which concerned RC 4511.66, a statute which prohibits parking on a highway "outside a business or residence district." A police officer had seen a vehicle parked in a public square with its lights on, and the vehicle remained there for about ten minutes. The officer conducted a stop under the statute, and a DWI prosecution resulted. The 5th District denied the motion to suppress, holding that whether the defendant had a "possible defense" to violating the section was irrelevant, because, "at the time of the stop, in the trooper's mind, a traffic violation had occurred." I called bullshit, saying, "I don't care what's in the officer's mind; if he had no objective basis for stopping Cox, that should've been the end of the matter."
As the philosophers say, the past is prologue, and damned if the identical situation -- stopped car in a business district, DWI arrest -- doesn't pop up in the 3rd District's decision last week in State v. Haas. Well, not absolutely identical: the trial court had also upheld the search on the basis that some of the other conduct of the driver was "suspicious." The majority in Haas clears that underbrush away by focusing on the officer's testimony, which was that the sole reason he stopped the vehicle was the purported violation of 4511.66.
So how do you get around the fact that the stop was based on a violation of the statute which, under the facts, wasn't a violation of the statute? The trial court relied on cases which have held that an officer's reasonable suspicion that a violation had occurred isn't negated by failure to establish that the violation had in fact occurred. The State argued that "it would be unreasonable to expect our law enforcement officers to know the details of every traffic offense and to make an accurate determination of the statute's applicability."
The 3rd District spends more time than it needs to in dispensing with both those arguments. The key here is what I alluded to in my earlier post about the 5th District's decision: objectivity. Back in 1996 in Whren v. US, the Supreme Court held that an officer's ulterior motives for a stop were irrelevant; the only consideration was whether the stop was objectively reasonable, i.e., based on an actual violation of the law. For the same reason, the officer's subjective belief as to whether the law was violated is immaterial. That doesn't mean that if an officer stops somebody for a traffic violation, it's incumbent upon the State to prove beyond a reasonable doubt that the violation occurred. But just because a police officer believes that something's illegal doesn't give him the right to stop someone if it's not. The officer's belief that the defendant had violated 4511.66 was objectively unreasonable in both Cox and Haas, and the 3rd District got it right.