Case Update
SCOTUS came down with one of its more liberal 4th Amendment
decisions in 2006, holding in Georgia v. Randolph that the police can't use a co-tenant's
consent to search a house if the other co-tenant is present and objects. Last week, in the oral argument in Fernandez v. California, the defendant's
attempt to expand that rule encountered substantial resistance. When the police arrived at Fernandez' home in
response to a domestic complaint, they found his girlfriend bruised and
bloody. Fernandez told them "I know my
rights. You can't come in." The
police arrested Fernandez for domestic violence, then returned later without a
warrant and obtained the girlfriend's consent to search the house for evidence
of a robbery, for which Fernandez was ultimately convicted. Randolph
was a 5-3 decision, and the same five-member majority is there, or with
replacements (Sotomayor for Suitor, Kagan for Stephens) who would vote the same
way, and those two plus Ginsberg expressed discomfort with the idea that the
police can vitiate a co-tenant's objection by simply removing him from the
scene. But Kennedy and Breyer, who voted
with the majority in Randolph,
expressed deep misgivings about extending its reach, and it appears likely the
Court will limit Randolph to
physically present objectors.
The defendant in Rosemond
v. US fared better in argument.
Rosemond had been convicted of aiding and abetting in the use of a firearm
during a drug trafficking crime, and the instructions at trial allowed the jury
to convict if he "actively participated" in the drug crime, and "knew his
cohort used a firearm." Everyone agreed
that more is required, specifically, a showing that Rosemond had foreknowledge
that a gun would be used. Rosemond seems
very likely to win on this narrow issue, but the Court's opinion could go a
good bit further in defining what constitutes "aiding and abetting."
The argument in Burrage
v. US did not go well for the government, either. Burrage was a heroin dealer, and after one of
his clients died, he was prosecuted and convicted under a 1986 law which adds
imprisonment up to life if the drug deal "results in death." The doctors testified at Burrage's trial that
they couldn't determine if the heroin caused the death, but the judge
instructed the jury they could find Burrage guilty if the heroin contributed to the death. Burrage's lawyer argued that the government
had to prove "but for" causation - that the death wouldn't have resulted
without the heroin use - and that it had to show that the death was
foreseeable. She fared poorly with the
latter argument, but she had only to bat .500, and she seemed to: the government's lawyer's insurmountable
problem was that if the Congress had intended to allow the drug to be only a
contributing cause, it could have plainly said so, instead of using the phrase,
"results in death."
I'll have more on these when the decisions come out.
Down in Columbus, no oral arguments last week, but a bevy of
them coming up. Tomorrow will be
Cuyahoga County Day, with two arguments scheduled on the intricacies of placing
a defendant on community control
sanctions: whether a court can
impose a "time served" sentence -- releasing the defendant without placing him
on supervision - and whether a pre-sentence report is required for to impose
sanctions. Thursday finds only one
criminal case on the docket, but it's a bit more significant, especially to OVI
practitioners: a review of a 9th District
decision affirming the trial court's determination that a motion to suppress in
an OVI case wasn't sufficiently specific to warrant a hearing.
The court did come down with one decision, State
v. Washington, its first real look at allied offenses since State v. Johnson three years ago. We'll discuss that on Thursday.
In the courts of appeals...
The 2nd District's decision in State
v. Martin provides a procedural lesson.
Martin was charged with domestic violence against his step-sister; the
two lived in the same house, with Martin in the basement, the sister on the
second floor, with the first being a common area. Martin contended that he was not a family or
household member, but the trial court determined that a step-sister and
step-brother are related by "affinity." The
defendant pleads no contest so he can take that issue up, but the panel notes
that while a no contest plea is not an admission of guilt, it is an admission of
the facts of the complaint, and since the complaint alleges that Martin "did
knowingly cause or attempt to cause physical harm to a family member or household member," Martin "essentially admitted
that Witt was a member of his household when he assaulted her." "By
pleading no contest to domestic violence, Martin admitted the truth of the allegations
in the indictment and waived his right to challenge what constitutes a 'family
or household member.'"
The 2nd District seems to come up with decisions on goofy
issues, and they don't disappoint in State
v. Wayne. Wayne decided to act
out a frequent theme in pornography -- having sex with the babysitter -- but
the consent issue was pretty muddy, complicated by her testimony that she was a
lesbian, as a further reason for trying to reject Wayne's advances. (In case you're wondering -- and you are --
the babysitter was 17.) The defense argued that this testimony violated the
rape shield statute, but, the 2nd holds, that statute prohibits testimony as to
prior sexual activity, not sexual orientation.
Finally, The 12th District tackles one of the great
metaphorical questions of our time in State
v. Brown: when does failure to
submit a urine specimen constitute "refusal" to submit to the test? The line comes down on the side of
Brown: the court notes that Brown agreed
to take the test, tried several times to provide a sample, and even drank
multiple glasses of water. Alas, not a
dribble. Under an "objective" standard
-- perhaps, how would a reasonable man provide a urine sample? -- the court
decides that this is failure, not refusal.
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