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Of corroborating evidence and trash pulls

I was going to talk today about the oral arguments in the Ohio Supreme Court last week, but why talk about that when there's some actual decisions to discuss.  Two of them, in fact:  State v. Bevly and State v. JonesAnd, at least for the criminal bar, there's good news and bad news.

If you commit the crime of gross sexual imposition involving a child victim, whether or not you go to prison depends on whether there's corroboration of the crime.  That's a unique provision in Ohio law; for no other crime does the punishment depend upon the quantity of the evidence.  (The closest is "simple" sexual imposition, which requires corroboration for conviction, but that's an element of the crime.)

Bevly pled guilty to gross sexual imposition, and at his sentencing the prosecutor introduced his confession and argued that constituted corroborating evidence.  The judge refused to buy that and imposed a non-mandatory three-year prison sentence, but the 10th District reversed.  The Supremes took it up, and as I wrote last June, anyone who watched the oral argument could have predicted the outcome, and sure enough, on Wednesday, the Supreme Court reversed the 10th in a 6-1 decision.  The court found that the provision violated equal protection, because there was no rational basis for the extent of the penalty to be determined by the existence of corroborating evidence.  That argument gained more traction than I thought it might, but the big problem was the U.S. Supreme Court's decision two years ago in Alleyne v. U.S. (discussed here).  Alleyne extended the Blakely prohibition against judicial fact-finding to mandatory minimums:  any fact which increases the mandatory minimum for an offense must be found by a jury or admitted by the defendant's plea.

Because of the unique status of the corroboration requirement, Bevly will have little precedential value.  That's not the case with Jones. 

I've commented on numerous occasions that the 8th is the most 4th-Amendment-friendly in the State, if not the country, and evidence of that is its decision in Jones, which in turn was based on its earlier decisions in State v. Weimer and State v. Williams (discussed here and here)All those cases dealt with trash pulls, and the panel in Jones read the earlier cases to say that the trash pull had to be viewed in isolation, and that the discovery of discarded contraband "does not, in itself, give rise to probable cause to issue a search warrant." 

The problem with Jones is that the earlier cases really didn't say that:  the trash pull was viewed in isolation because there was nothing else on which to base probable cause.  The court's decision in Jones allowed the State to argue that it applied the wrong standard:  probable cause is to be determined by the totality of the circumstances, and here there were some additional factors.

If Las Vegas handicapped court decisions, Jones would have been taken off the board after the oral argument; halfway the State's presentation, it was obvious that the main question for the justices was whether to reverse and remand back to the court of appeals, or to reverse the grant of the motion to suppress and send it back to the trial court.  The court opted for the latter.

There was some glimmer of good news.  While the State's brief argued the proposition that the a trash pull which corroborated tips and background information was sufficient to establish probable, the Attorney General's office had filed an amicus brief doubling down on that position:  in its view, a single trash pull was sufficient, period.  The Attorney General's office has engaged in a full frontal assault on the 4th Amendment over the past several years, at one point arguing that all search and seizure decisions should be based on Ohio law, and that a 1936 Ohio Supreme Court decision held that Ohio's constitution doesn't have an exclusionary rule. 

The State allowed the assistant AG to present the rebuttal in Jones, and he used the time to push the "single trash pull" argument.  That met with a frosty reception from the court; Pfeifer noted it would allow the police to simply go down the street in a high crime area and sift the trash for contraband, and get a warrant based on that.  The assistant AG basically acknowledged that, in his view, the only limitation on that tactic would be whether the police had the resources to do it.  That prompted O'Connor to gently point out that his argument went much farther than necessary and that he was "making more justices more uncomfortable with your position than maybe when you started."  Still oblivious to the hint, the assistant AG plunged ahead, leaving it up to O'Donnell to shut him up.

O'DONNELL:  What you're hearing from the court, or should be, is this isn't a single trash-pull case, you've got a lot of other evidence here.  So you don't have to argue a single trash pull.  It's not a single trash pull case, there are other factors attendant here.

AG:  Your honor, I agree with that, but --

O'DONNELL:  You agree with that, right?

AG:  Yes, I'm just saying --

O'DONNELL:  Thank you. 

With "now sit the hell down" left hanging, if unspoken.

Fortunately, that carries through in the opinion; the court unanimously reverses, but as for the State's position, "we decline to adopt it as a bright-line rule."  So what we wind up with in Jones is error correction and a simple reaffirmation that probable cause for a warrant is to be determined from the totality of the circumstances.  And you can make a decent argument that the decision explicitly rejects the argument that a single trash pull can provide probable cause.  Believe me, it could have been a whole lot worse.

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