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What's Up in the 8th

Three search cases on the docket this week, and the State wins two.  Not surprising, really, given that the two it brings home involve search warrants.  Also, cases on getting inked up, and the perils of pro se appeals.

This blog is read mostly by judges and lawyers (which is markedly different from saying that most judges and lawyers read this blog) but maybe potential defendants and inmates should be my target demographic, because it would certainly prove helpful to them.  Last year, for example, I told you about Anthony Garcia, who was so proud of the murder he'd committed that he'd gotten the event tattooed on his chest, only to have that used to pin the killing on him.  The defendant in last week's decision in State v. Muhammed could have benefited from that story, and learns a simple lesson:  if you get a tattoo of a green clover on your face, and you're charged with shooting someone and all the witnesses say the shooter was a guy with a tattoo of a green clover on his face, well, the jury's going to convict you and the court of appeals is going to laugh at your attorney when he tries to argue manifest weight or insufficiency of the evidence. 

The defendant in State v. Taylor is one of two pro se appeals.  State v. Gresham is the other, and demonstrates the futility of appeals claiming that the offenses for which one was convicted five or ten years from now should be merged as allied because of State v. Johnson.  Taylor gets to "yes," but winds up worse than he would have with a simple no.  His argument is that his sentence is void because his attorney didn't file the affidavit necessary to avoid imposition of the mandatory fine.  The court agrees, and finds that this does indeed render the sentence partially void.  But only that portion involving the fine, so the court sends it back solely to allow the trial court to impose the mandatory fine, leaving Taylor to scrounge around the prison for a dictionary so that he can look up the meaning of "Pyhrric victory."

Johnson and the question of allied offenses comes up in State v. Fairfield.  Fairfield had accumulated an arsenal sufficient to start a revolution in a Central American country, and a portion of the opinion deals with the question of whether the counts of possession of dangerous ordnance - "two shock tubes, two spools of detonation cord, four wrapped blasting caps, four unwrapped blasting caps, eight booby traps, five igniters, an actuator, and a jar of napalm" -- merged with the receiving stolen property and possession of criminal tool offenses.  (In addition to weapons, explosives, and napalm, the opinion tells us, Fairfield was also charged with possession of the child porn the cops his computer.  One of these items is not like the others.)  The more significant question raised by Fairfield is the affidavit for the search warrant, which relies heavily on information given by his wife.  The two were in the process of a divorce, and she apparently subscribed to the principle don't get mad, get even, and ratted him out to the cops.  (Hilariously, she's referred to throughout the affidavit as "CRI-wife.")  Fairfield argues that the information she conveyed to that authorities was protected by the spousal privilege, but the case law is pretty solid that the privilege applies only to in-court testimony, and doesn't exclude statements made by the spouse to police during the investigatory process.

Fairfield was one of the two search warrant cases won by the State last week.  State v. Strothers is the other, although that was actually a reissue of a decision made two months ago.  In that opinion, the court refused to consider the search issue because the defendant hadn't filed a separate appeal from the denial of the motion to suppress.  I pointed out at the time that this was wrong; under what's referred to as the merger doctrine, all interlocutory orders are merged into the final judgment, and thus "an appeal from the final judgment includes all interlocutory orders merged with it."  The revised opinion gets this part right, and proceeds to consider the merits of the argument.  The case involves the "Chocolate Factory," a house "used to facilitate prostitution," and the defense is left with the argument that the affidavit wasn't sufficient to establish probable because the it didn't include officers' understanding of the words "full service" as connoting "oral sex and sexual intercourse."  That argument meets the fate that you'd expect.

State v. Garcia also involves an appeal from the denial of a motion to suppress, but here there's a warrantless search, which makes things much dicier for the State.  Two officers on patrol spot Garcia, who's sitting on a bicycle talking to someone in a car that was stopped in the middle of the street at about midnight in an area known for drug activity - i.e., Cleveland - and so they turned their cruiser around to check it out.  When they did so, Garcia began to pedal away.  The officers pulled up, told him to stop, and began asking him questions.  As they were talking, they noticed Garcia fidgeting with the waistband of his pants, and so one cop exited the car and patted Garcia down, finding a loaded handgun.

The case involves two issues.  First, was this a stop?  The trial court found that it wasn't; the officers "did not get out of the zone car but simply asked some questions of the defendant... The officers... simply stopped to investigate an unusual sight, a person on a bicycle in the middle of the street next to a stopped car around midnight."

Well, true that, but the officers clearly testified that they told the defendant to stop, and expected him to do so.  The test for whether an encounter with the police is deemed a stop or merely consensual is whether "a reasonable person would have believed that he was not free to leave."  That's an objective test:  it's "not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person."  And where a man with a badge and a gun says to stop, a reasonable person would believe that he'd better stop.

From that point, it's all downhill, because the police acknowledged that they'd seen nothing prior to that to indicate any criminal activity.  Nothing, that is, besides someone on a bike talking to someone in a car in a high drug activity area at midnight.  The 8th District, though, has consistently held that that's not sufficient to create reasonable suspicion of criminal activity, even where the suspect and the person inside the car engage in a hand-to-hand transaction, unless the police can see what was exchanged.

From a technical standpoint, Garcia comes to the right result, but it indicates the precarious balancing between liberty and order that the 4th Amendment entails.  Viewed from a different perspective, or by another court, this might simply be classified as good police work:  the officers encountered something mildly suspicious, and engaged in a minimal intrusion upon Garcia's liberty to investigate.  I've often criticized the police around her for their woeful lack of knowledge of 4th Amendment requirements, and for their frequent blatant violations of those requirements.  This wasn't one of those blatant violations, and cases like this make you understand why cops are so frequently frustrated by the law in this area.  

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