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Case Update

After whining for months about how I don't have anything to write about, my cup runneth over:  oral arguments in four key SCOTUS cases last week, plus two decisions in criminal cases from the gang down in Columbus.  Plus, two more key cases slated for oral argument before the US Supreme Court on Tuesday, one involving a double jeopardy issue and the other the question of what constitutes withdrawal from a conspiracy. 

I could hire extra staff and go to two posts a day to handle all this, but that's not going to happen, so here's what we'll do.  We'll cover the oral argument in the SCOTUS dog-alert case here, and cover the two Ohio Supreme Court decisions on Wednesday.  On Thursday, we'll talk about the oral argument in Chaidez v. US, involving the issue of the retroactivity of Padilla v. Kentucky, and on Friday we'll tackle Bailey v. US, which raises the question of whether police can detain an occupant of a home being searched pursuant to a warrant when the person isn't really occupying the home at the time he's seized.

Last week I wrote about Florida v. Jardines, which involved the issue of whether a dog sniff at the door of a house constituted a search, and the news was fairly good; Scalia in particular seemed receptive to the defendant's argument.  Not so good news with HarrisHarris also involved a dog sniff, but of a car. As I explained back in April when the Court took the case, the Florida Supreme Court had held that there wasn't sufficient evidence that the dog was trained to detect the odor of narcotics to allow an alert to establish probable cause.

Greg Garre, who'd argued on behalf of the state in Jardines, also argued Harris, prompting Scalia to inquire, "Are you for or against the dog this time?"  With the amenities out of the way, the participants got down to the central issue:  what would constitute sufficient evidence?  It was relatively clear that everybody on the Court was having trouble with the rigidity of the Florida Supreme Court's holding:  not only did the dog have to be certified and trained, but the judge "must" find that performance records - how often the dog falsely alerted, for example - demonstrate that the dog is sufficiently qualified.  As Scalia noted, if a doctor's testimony was intended to establish probable cause, a court "would not go back and examine how well that doctor was trained at Harvard Medical School and, you know, what classes he took and so forth."

On the other hand, several of the liberal justices weren't overly enamored of Garre's proposal, that certification would be sufficient; Sotomayor asked him to cite an example of a case in which the Court had adopted "an absolute flat rule like the one you're proposing? Where else have we said that one thing alone establishes probable cause?"  In my earlier post, I'd said, "Expect the NACDL to come in with an amicus brief here presenting studies... showing problems with false alerts, handler cuing, residual odors, and the like," and they did; Sotomayor was particularly troubled by an Australian study showing accurate alerts in only 12% of cases.

That's unlikely to carry the day, though; not even the liberals expressed any enthusiasm micro-managing the issue of dog qualifications, especially because, as Scalia noted, there's not much incentive for the cops to fudge the issue:  a dog who gives lots of false alerts simply means a lot of time spent on searches which come up with nothing.  Expect the Court to retreat a "totality of the circumstances" test, where certification goes a long way toward qualifying.  That could be a good thing in itself; many states don't have any standards, and adoption of that sort of test could impel them to come up with one.

In the courts of appeals...

The operability of a firearm, for purposes of the CCW statute and firearm specifications, can be proven by inference:  e.g., if you point a gun at someone and threaten them, it can be inferred that the gun works.  In State v. Johnson, the 8th District finds the inference of operability arises because the defendant testified she carried the gun because it made her "feel safe"... Contributing to the unruliness of a minor is not a lesser included offense of raping a child under thirteen, the 10th District unsurprisingly concludes in State v. Adams... In State v. Marcum, the victim had obtained a civil protection order against the defendant.  He drove up to where she was standing with some others, grabbed her, dragged her to his truck, and drove away.  The 12th District concludes that the offenses of abduction and violation of a protective order were committed with a separate animus, and don't merge... Perils of dual representation:  where one defendant should have taken plea, but it was in co-defendant's interest not to, one attorney couldn't represent both; in State v. Smith, the 3rd District reversed the defendant's conviction for ineffective representation arising from the conflict...

Good and bad search cases from the 2nd District.  The bad one is State v. Powell, where, based on an anonymous tip, five police officers go to Powell's house at 5:15 AM, tell him they want to speak with him, and then obtain consent to search the house.  The trial court finds that the consent was voluntary and not the result of "unlawful coercive behavior."  The appellate panel defers to the trial court's "factual findings," although the question of whether the officers' conduct rendered consent objectively unreasonable arguably should have been reviewed de novo.  In State v. Prater, the cops stop a vehicle, issue a warning, and then ask the driver for consent to search the vehicle.  The court properly holds that once the officer has finished the process of issuing the driver a ticket or warning, any further detention is impermissible.  That doesn't end the inquiry; the question then becomes whether the consent was voluntary or a product of the illegal detention.  The court holds that it was the latter.

In State v. Frye, the defendant was improperly advised at the plea hearing that his sentence for escape would have to be consecutively to his other sentences; that's only required if the escape is from a jail prison, or other detention facility, not when it's from an officer's custody.  Does this mean Frye's plea is invalid?  No, says the 2nd District; he can't claim prejudice by arguing that "he pled guilty based on a mistaken belief that he faced an unduly long or consecutive sentence, and that he would not have entered the plea if he had known that the possible sentence was, in fact, shorter."  It nonetheless vacates and remands for resentencing, because the trial court obviously believed it was required to impose consecutive sentences, and may have chosen not to do so if it knew it didn't have to.  Of note here is that the original attorney filed an Anders brief, and the 2nd caught it on their review.

Yeah,
that'd cheese me off, too. 
In State
v. Bostick
, the 9th District reverses a conviction for felonious
assault, finding that a charge on aggravated assault should have been
given:  "The sequence of having a pan of
warm water and an ashtray thrown at you, being sprayed in the eyes with air
freshener, having a rifle pointed at you and the trigger pulled twice, and
being kicked in the groin, all within the course of the same altercation could
objectively amount to sufficient provocation by the victim to 'arouse the
passions of an ordinary person beyond the power of his or her control.'"

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