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Case Update

Here I sit, preparing the Case Update, sipping on my Minute Maid Pomegranate Blueberry Juice, only to find that the product (marketed by Coca-Cola) contains only 0.3% pomegranate juice and 0.2% blueberry juice, the remaining 99.5% consisting of apple, grape, and other juices.  This knowledge comes courtesy of the Supreme Court's unanimous decision last week in POM Wonderful v. Coca-Cola, holding that the Lanham Act gives POM Wonderful, which makes its own pomegranate-blueberry juice, a private cause of action against Coca-Cola for false and misleading advertising.  My dismay is deepened to learn that when my daughter inherits the vast sums in my retirement accounts, she can't shield them from bankruptcy, as the Court determined in its other decision last week in Clark v. Rameker.

Hmmm.  Much more of this and you, gentle and hopefully non-litigious reader, may have a cause of action under the Lanham Act against me for advertising this as a blog on criminal law.  Well, you take what you can get.  About the only criminal decisions left before the Court's term expires at the end of the month are the two on search of cell phones incident to arrest.  For those of you whose hunger for civil cases has not been sated by the lead paragraph, you can wonder over to SCOTUSblog, where there's an in-depth article on a case headed for the Court involving the default by Argentina of some $81 billion in bonds back in 2001.  The article's wildly optimistic title, "The Argentine bond saga, made simple," seems tailored for another suit under the Lanham Act.

Down in Columbus, no decisions of note, but the court did have an oral argument in a number of criminal cases.  We discussed the one in State v. Bevly, concerning "minimum mandatory" sentences in Ohio, on Thursday, and we'll tackle State v. Ilg later this week; the case deals with the controversial Intoxilyzer 8000, the machine the Department of Health adopted five years ago for police departments to use to measure alcohol use in drunk driving cases.  There were three cases combined for argument on whether a probate judge can issue a search warrant, but the result will not be influenced by anything the defendants have to offer; none of them filed briefs, and therefore didn't participate in oral argument, either.

In the courts of appeals...

Speaking of warrantless searches of cell phones, the 2nd District deals with a variant of that theme in State v. Taylor.  Taylor's murder convictions were largely based on evidence the police obtained from tracking his cell phone via the pings emitted by its GPS.  The court upheld the search, finding that Taylor did not have a reasonable expectation of privacy in that information.

That's probably the right result, but some of the language in the opinion is worrisome, especially its reliance on a 6th Circuit decision which held that since the defendant was traveling on a public road, any information gleaned from the cell phone pings "could have been obtained through visual surveillance."  That's the same argument that was made - and bought by some courts - in the GPS cases.  No police force could tail a suspect's every move for weeks or months, and there's no reason to permit them to do with technology what they can't do without.  Just because I don't have a reasonable expectation that a police car won't see me on the road doesn't mean that I don't have a reasonable expectation that the police will not monitor my every move.

A couple of cases highlight the problem of determining allied offenses from a plea.  Merger for allied offenses is a sentencing issue, not a plea issue, says the 2nd District in State v. Jefferson; the failure of the judge to address allied offenses at the plea hearing can't serve as a basis for vacating the plea.  The 9th District's decision in State v. Asefi gives trial judges some guidance in how that issue should be handled in a sentencing hearing after a plea, where there's often no real record to help the judge make that determination.  While the absence of a record doesn't absolve the judge of responsibility for deciding whether offenses are allied, he can rely on information provided in the presentence report or statements by counsel; he need not hold an evidentiary hearing.

Back in 2010, the Supreme Court held in Berghuis v. Thompkins (discussed here) that a waiver of Miranda rights need not be express, but could be implied.  The difficulty of establishing that a defendant did indeed invoke his right to remain silent is amply displayed by the 5th District's decision in State v. Hamilton.  After being advised of his rights, Hamilton indicated that he didn't want to talk, but was "going to listen" to what the detectives had to say; after 40 minutes, he admitted to having heroin.  The trial court denied the motion to suppress the statement, and the panel affirms, finding that this constituted an implied waiver of Hamilton's Miranda rights. 

 There are lots of appeals arguing that verdicts were inconsistent, and there are lots of cases saying that doesn't matter.  Add the 3rd District's decision in State v. Seitz.  Seitz was charged with felonious assault and kidnapping, but the jury came back with a conviction of simple assault - plus the kidnapping.  The kidnapping charge alleged that Seitz removed or restrained another person of his liberty to facilitate the commission of a felony, and the court holds that the conviction stands, despite the jury's apparent conclusion that Seitz hadn't committed the underlying felony.

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