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Case Update

Remember the "knock and announce" rule?  It was the common law rule that a police officer had to knock and announce his intentions before entering a home, even with a search warrant.  Eleven years ago, in Hudson v. Michigan, Scalia wrote an opinion holding that while the rule was constitutionally required, the exclusionary rule would no longer apply to it.

One of the big questions facing the Ohio Supreme Court is the application of the Ohio Constitution.  In a number of decisions, most recently State v. Mole (discussed here), the court has said that the Ohio Constitution is a document of independent force.  In a number of decisions, most recently (just a month later) in State v. Anderson (discussed here), the court has held that the provisions of the Ohio Constitution regarding "criminal rights" are co-extensive with the U.S. Constitution.

What ties those two paragraphs together is State v. Bembry, which was argued in the Supreme Court last week.

Did you know that Ohio has its own statute on the knock and announce rule?  Yep, R.C. 2935.12 require that before entering a house, the police have to announce their presence and purpose, and be refused admittance.  In Bembry's case, the cops announced they were cops, but didn't say that they were executing a warrant.  They waited fifteen seconds, then broke the door down.

For reasons I'm not entirely clear on, the State conceded that this was illegal.  The only question left was what to do about it.  Bembry argued this made the entire search illegal, and everything had to be suppressed.  The State argued that the exclusionary rule shouldn't apply, in accordance with Hudson.

So the issue's fairly presented:  does the court follow the Ohio Constitution (and statute), or does it follow the US Supreme Court's interpretations of the Federal Constitution, and consider it binding?  That's a significant question.  So what happened in oral argument?

It was horrible.  Neither side could make a coherent argument about why they should prevail.  The State's attorney spent a good portion of his time explaining why civil lawsuits or administrative discipline could serve as a greater deterrent to police violations of the Fourth Amendment than the exclusionary rule. 

I'm sorry, that's just nutty.  Cities pay out for lawsuits filed by the families of people they kill.  Sometimes, they discipline the cops who kill, but that's rare.  But how much do you think a jury's going to give a guy the police found with two kilos of heroin because the cops didn't say they had a warrant before breaking down his door?

It wasn't any better when the assistant attorney general took the floor.  Although much more polished than the other two attorneys, she spent her few minutes peddling the idea that because the Supreme Court held in State v. Lindsay in 1936 that Ohio's search and seizure provision didn't have an exclusionary rule, that still holds, an idea which even Justice O'Donnell openly ridiculed three years ago.

So what's going to happen?  What Bembry's really got going for her is last year's decision in State v. Brown, where the court applied the exclusionary rule to a stop by a township police officer on an interstate, because there's a statute that specifically provides a township police officer doesn't have jurisdiction in that situation.  If the court kicked out the evidence because of a statutory violation in that case, they can kick out the evidence because of a statutory violation in this one, without ever reaching the constitutional issue. 

Whether that happens is another story.  Mole was a 4-3 decision, and two of the justices who voted with the majority have been replaced by new justices.

Picky, picky.  CrimR 12(D) requires that most pretrial motions have to be made within thirty-five days of arraignment or seven days before trial, whichever is earlier.  Although that last phrase is observed mainly in the breach, there are cases where trial courts have denied a motion to suppress, say, which was filed more than a week before trial, on the grounds that it was filed more than thirty-five days after arraignment.  That's reviewed for abuse of discretion, and so it's largely been upheld.

The defendant in the 7th District's decision in State v. Sutton would seem to have a good excuse for filing the motion late:  her attorney wasn't appointed until two days after the initial time had expired.  Too bad, so sad, says the panel.  Faced with the prospect of filing an untimely motion, the proper procedure is to ask leave to file it.  In fact, the judge here specifically invited defense counsel to file for leave, but the attorney never did.

Five years ago, the 8th District disposed of cases where the defendant's attorney had filed an Anders brief with a post-card entry.  No more; now they write an opinion in each case.  That's what happens in State v. RomankoRomanko is appealing for the second time from the court's imposition of consecutive sentences.  The first resulted in a reversal because the judge hadn't made the required findings.

That was taken care of on the second go-around, and Romano's lawyer files an Anders brief on the appeal.  I'm not a fan of those, but sometimes, you've got nothing, and if the only thing you've got is a reversal limited to whether the judge can make the findings, and he makes the findings, you've got nothing.

As I said, I'm not a fan of Anders briefs, but apparently they're quite popular in the 12th District.  That court handed down five criminal decisions last week.  Anders briefs were filed in two of them.  That's about par for the course; since the beginning of the year, the 12th has decided 46 criminal cases; Anders briefs were filed in 19 of them.  Butler County seems to be the main offender:  eleven out of twenty cases involved Anders briefs.  That's not a recent aberration; over the past two years, over 25% of the appeals in Butler County have been resolved on Anders briefs.

And that's way, way out of whack.  The comparative figure in the 8th district is a tenth of that.


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