What's Up in the 8thI've often chided the Cleveland police for their failure to grasp even the rudiments of the law on search and seizure, but apparently we can add Shaker Heights to the list of police departments where the 4th Amendment is no more than a distant rumor. After determining that Adrian Maddox was the person who'd broken into a convenience store three days earlier, the police went to his apartment to arrest him. When asked in the suppression hearing why they hadn't gotten a warrant, the detective replied, "That's not how we do things."
State v. Maddox will hopefully prompt a re-evaluation of that policy. An arrest is a "seizure" requiring probable cause and a warrant, although there are three circumstances where the latter is not required: when the arrestee has committed an offense in the officer's presence, where the arrest is for a felony and occurs in a public place, and where exigent circumstances exist. None of those three applied here.
The trickier question was whether the warrant requirement was obviated by Maddox's opening the door when the police knocked; there's a Supreme Court decision that says that someone voluntarily standing in an open doorway has exposed himself to public view just as if he were standing on a street corner. But Maddox backed into his hallway after he opened the door, and the police went inside to arrest him. That's a fine point - would the result be the same if the police had grabbed Maddox before he could retreat? - but the court's opinion can be read as holding that the seizure would be illegal if the suspect didn't know it was the police who were knocking. (The cops were in plain clothes and didn't announce themselves.)
One more interesting thing about the opinion: it doesn't cite a single Ohio case, relying instead on Federal decisions, none of them from the 6th Circuit. Something to keep in mind if you're doing a brief on 4th Amendment issues in the 8th District: don't be parochial.
Interestingly, a different panel comes up with a different answer in a similar fact situation in Parma v. Skonezny. The police had responded to the scene of an auto accident, and several of the participants pointed to a truck parked a short distance away which they claimed was involved. When the truck drove off, the officer followed it, saw it pull into a driveway, and the driver get out and walk into the house. The officer went to the front door and knocked on it, and a few minutes later Skonezny, whom the officer recognized as the driver, answered, soaked to the gills. After some further questions, the officer arrested him. The findings of fact made by the trial judge in denying the motion to suppress are conflicting, prompting a dissent, but the panel seems to otherwise agree that this was a "consensual encounter," and upholds the search. At first glance, Skonezny seems to conflict with Maddox, but there are some important differences: the officer's intent was not to arrest Skonezny, but merely to question him regarding the accident, Skonezny invited the officer into the home, and exigent circumstances arguably existed; the officer could hardly have been expected to go get an arrest warrant after realizing Skonezny was drunk.
State v. Price represents the other big win for defendants last week. A woman reported that Price, an acquaintance with whom she'd previously had sex, had raped her. The detective set up a "pretext" call, with the woman calling Price and trying to get him to admit to the rape, while the police recorded the conversation. It didn't go as planned; Price adamantly maintained that the sex had been consensual. He was arrested nonetheless, and when questioned by the detective, invoked his right to counsel. The detective decided to read the woman's complaint to Price "to give him the advice as to what was going on and why he was there." Price responded by saying it didn't happen, suggesting that the woman had "mental problems," and asking the detective whether he had proof that Price was even in the area. At trial, the detective testified on direct examination that the first time he'd heard about a consent defense was the first day of trial. The prosecutor cross-examined Price as to why he hadn't said anything about consent to the detective, and argued to the jury that Price had conjured up the consent defense on the eve of trial.
This was fairly blatant misconduct - both the detective and the prosecutor had listened to the pretext call, after all - but there's another issue here. In Doyle v. Ohio, the Supreme Court had held that a defendant's post-arrest silence can't be used to impeach him. The State argued that Price's responses to the detective took the case out of Doyle, but the panel correctly finds that the statements weren't inconsistent with a consent defense, and besides, this wouldn't have permitted the State to introduce the statements, via the detective, in its case in chief. The court finds plain error in the admission of the testimony and reverses, and the opinion's well-written and does an excellent job of analyzing Doyle's requirements. (The US Supreme Court had argument last Wednesday in a case on whether the police can use a defendant's pre-arrest silence, and I'll discuss that later this week.)
Finally, our weekly Advice to Criminals portion of the blog, courtesy of State v. Williams. If the police respond to a call of a breaking and entering, and find a broken window and you crouched under the counter, trying to hide, it's a tough sell to convince them that the owner gave you permission to be in the store to do some work. It's a much tougher sell if the owner has recently died, and his obituary is taped to the store's window. And it's an impossible sell for your appellate lawyer to claim that the evidence is insufficient to convict you because the storeowner is dead and therefore nobody could testify that you weren't authorized to be in the store.