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Case Update

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No, you're not seeing double.  Yes, I just did a case update yesterday.  Actually, I did it last week, but screwed up on the posting, so you get another one.  

And just like last week, there's nothing to report out of SCOTUS or the Ohio Supreme Court, unless you count a couple disciplinary decisions from the latter.  (This week's helpful tip for lawyers:  don't show up for a bankruptcy hearing drunk.  Especially more than once. You're welcome.)  There are some oral arguments in D.C. this week, nothing earthshaking; the most interesting is one on how or whether the Privileges and Immunities Clause affects a state's ability to keep governmental information private.  (Hey, I said most interesting.  And if you are interested, here's a discussion of the upcoming oral argument.)  The Columbus Seven kick off their next round or arguments next week, so we'll save any more of that for then.

In the courts of appeals...

An interesting twist on the issue of post-release controls in the 2nd District's decision in State v. FlemingFleming was convicted of drug trafficking and served a seven-year sentence.  After he was released, his parole officer got wind that he was living at a different address, which was a parole violation.  The PO got the cops, they went out to the place where Fleming was now living, entered and arrested him, and found a gun and some drugs.  But wait!  Way back at Fleming's sentencing, the judge told him that he had up to five years of post-release control, when he actually had a full five years of it to do.  That renders the post-release control void, and as we know from Bezak, once you get out of prison, the court loses the power to impose PRC.  So, Fleming argues, since he wasn't validly on post-release controls, the search was invalid, because it occurred as a result of his being on supervision, when he shouldn't have been.  The 2nd District agrees, and suppresses the evidence... The 2nd comes to a different result in a search case, though, in State v. Regulus, where the police officer had asked two men if they were carrying weapons, and frisked them when they didn't answer.  The court holds that this ain't Miranda; the police can make valid inferences from a suspect's silence in determining whether the suspect presents a danger... Several years ago in State v. Smith the Ohio Supreme Court held that a warrantless search of a defendant's cell phone violated the 4th Amendment.  In State v. Griffin, the 9th District holds that doesn't require the police to get a warrant before subpoenaing in the cell phone records from the provider; in fact, that's specifically provided for by Federal statute.

All defendants have the right to remain silent, but some, like Montez Wagner, just don't have the ability.  After being arrested for a shooting, Wagner told the officer, Sgt. Michael, transporting him to the station that he wanted to tell him about the incident.  Michael suggested waiting until they arrived at the station so that Wagner could talk with the investigator, but Wagner insisted he only wanted to talk Michael.  Michael advised Wagner of his Miranda rights, and asked if he wanted to answer any questions, but Wagner said no.  Michael then told him, "Okay, but just so you know, you will have to tell me whatever you want to tell me, but I can't ask you any questions."  Wagner then related the details of the shooting, claiming it was an accident.  In State v. Wagner, the 1st District decides that in the context of this situation Wagner had not made an "unambiguous" assertion of his right to remain silent.

There have been all kinds of problems with the Intoxilyzer 8000, the machine now used by many Ohio police departments for breath-testing drunk driving suspects.  (And the contract for those machines is subject to some controversy.)  A number of lower courts have held hearings on the reliability of the device, and held the results inadmissible because of various flaws.  There's a problem with that, though:  back in 1984, in State v. Vega, the Supreme Court held that expert testimony as to the general reliability of a particular machine authorized by the Director of Health is prohibited.  Last week, in State v. Hatcher, the 11th District (by a 2-1 vote) reversed the trial court's exclusion of the breathalyzer results on the basis of Vega.  Hatcher was actually one of about four decisions the 11th District handed down on that subject last week, and the 12th District ruled likewise in State v. Dugan

Don't feel too smug if you go to a bar which does weapons checks, because what it really means is that there are a bunch of people outside who have guns and know that you don't.  That's what happens to victim in the 8th District's decision in State v. West.  The significance of the case, besides the lengthy factual recitation of the 40th bar shooting in Cleveland that particular week, is that felonious assault, possession of a firearm in a liquor establishment, and having a weapon under disability were "three distinct offenses committed separately and with a separate animus as to each."


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