Case Update
Can the police search the contents of your smartphone
without a warrant? Four years ago, in State v. Smith, the Ohio Supreme
Court said no, in a decision I described
at the time as "so
defense-friendly it has me looking for other signs of the Apocalypse." In fact, the decision's a bit of an outlier;
most courts have concluded that a warrantless search of a cellphone incident to
the defendant's arrest is permissible.
The California Supreme Court came to that conclusion, and the US Supreme
Court is being asked to take the case.
There's a good article on the amicus brief filed by the Constitutional
Accountability Center (and no, I've never heard of it either) arguing that the
contents of a cellphone fall within the purview of a person's "private papers,"
the protection of which was a key factor in the adoption of the 4th
Amendment. That's the kind of argument
that could resonate with Scalia, who's taken a much more defendant-friendly
approach on 4th Amendment issues recently, so we'll see what happens.
Mirable dictu!
The Ohio Supreme
Court came down with a decision in a criminal case, two of them, as a matter of
fact. One, a key decision on the use of
the "investigative exception" to the hearsay rule, we'll talk about tomorrow,
and move the 8th District summary to Wednesday.
The other, State
v. Dzelajlija, also
came out of the 8th, and did not show the district at its best. As I explained when I wrote about the oral
argument, and also when the appellate decision came down, the case has followed a tortuous path,
which can best be summarized as follows:
Dzelajlija's conviction from his first trial was vacated for evidentiary
errors, and his second trial was reversed because the Supreme Court had held in
State v. Colon that failure to
include the mens rea element in an
indictment was structural error. Just
before Dzelajija's third trial, though, the Supreme Court reversed Colon in State v. Horner, so the trial court applied Horner and reinstated the conviction. In Dzelajlija's third appeal , the court
again reversed, finding that he'd raised an issue of manifest weight of the
evidence which hadn't been resolved in his second appeal. A few weeks later, though, the court
reconsidered, and decided that the trial judge should have listened to its
decision in the second appeal reversing the case on the basis of Colon.
The contention
that a trial court should listen to what the court of appeals says, despite an
intervening decision to the contrary by the Supreme Court, met the fate that
you'd expect. The Supreme Court reverses
it and sends it back so the 8th can take a 5th whack at it, on the manifest
weight issue.
A quick look at
the decisions from the courts of appeals...
The City of
Cincinnati appeals a trial court's determination that the Adam Walsh Act is
unconstitutional, and refusing to apply it to a defendant convicted of
voyeurism. Interesting decision, but the
1st District won't be reviewing it; in State
v. Ratliff, the court
dismisses the case because the State didn't seek leave to appeal, and a ruling
declaring the statute unconstitutional doesn't provide a basis for an appeal as
of right... The defendant is placed on community control sanctions for a
third-degree felony in 2009. In 2012, he
violates the sanctions, and the judge imposes a five-year sentence. HB 86, which went into effect in 2011,
reduced the penalty for the defendant's crime to a maximum three-year
sentence. Does the defendant get the
benefit of the reduction? Yes he does,
says the 4th District in State
v. Tolliver...
In State v. Short, the 3rd District holds
that the judge erred in imposing consecutive sentences because he didn't make
any reference to the findings contained in RC 2929.14(C)(4). The case has a twist, though. Short pled guilty to conspiracy to murder and
aggravated burglary, and in return the prosecution agreed to recommend a
sentence of fourteen years. (At the
sentencing hearing, the judge refers to this as a "joint recommendation.") That means whether the judge made the
necessary findings was irrelevant; under RC 2953.08(D)(1), "a sentence
imposed upon a defendant is not subject to review under this section if the
sentence is authorized by law, has been recommended jointly by the defendant
and the prosecution in the case, and is imposed by a sentencing judge." That doesn't necessarily mean that the judge
didn't have to make the findings, but it does mean that the defendant couldn't
appeal on that basis.
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