Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

One SCOTUS term has ended, but another is just getting revved up.  The Big Thing for the Court upon its return in October will be the Trump Travel-Ban-That-Was-A-Ban-But-Maybe-Isn't.  There's also the cakesellers case:  whether Colorado could use its public accommodations law to compel the Masterpiece Cakeshop to create a cake for a gay wedding, despite the owner's religious views about marriage. 

Cell phones are the topic of one of the key criminal cases for next term in Carpenter v. US.  At his trial for a string of robberies in Michigan and Ohio -- irony alert:  Carpenter and his team stole smartphones -- the government used several months of cell-site records showing Carpenter's proximity to cellphone towers in the vicinity of the robberies.  The district court and the circuit court rejected his claim that the government needed a warrant for this data.  A few years back, SCOTUS held that the government needed a warrant to search the contents of a cellphone.  Two years earlier, it had held that the government needed a warrant to place a GPS on a vehicle.  The government in Carpenter is relying on relying on two Supreme Court cases from the 1970's, but when it comes to technology, the 70's is so five minutes ago.

 There aren't a whole lot more criminal cases on the Court's docket so far.  There's one on habeas law about whether a court should "look through" a summary state court decision to the last "reasoned" decision by the state court's on the case, which can be understood by habeas practitioners and no one else.  And there's Class v. US, which involves the issue of whether a plea of guilty waives a defendant's right to challenge the constitutionality of the statute he was convicted under.

I'm a baseball fan, and I've frequently marveled at the plethora of statistics that are available.  For example, with a few clicks of the mouse button, I can learn that Bryce Harper, the Washington Nationals outfielder, has a .396 batting average in night games, but only hits .254 in day games.  (Of course, for statheads, batting average is as relevant as 1970's technology.  The pertinent new statistic is OPS (on base percentage plus slugging average), which for Bryce are 1.237 and .842, respectively.))  And with the count no balls and two strikes, Harper bats an astonishing .387.

Well, for those more inclined to legal minutiae, the end of the Supreme Court heralds the arrival of the SCOTUSblog STATPACK.  From this we learn many things.  Once again establishing his street cred as the swing justice, Kennedy voted with the majority in 97% of the cases.  The Court was relatively collegial; of the 69 opinions the court issued, 59% were unanimous, the highest rate since the 2013 term.  And while Breyer asked the highest number of questions per oral argument (20.5), once again Thomas clocked in with the lowest number (0.0.)

Down in Columbus, things have slowed to a crawl.  I've been waiting since December to hear whether the court is going to take one of my cases; normally, the wait time is three to four months.  And there's nothing even scheduled for oral argument.

But wait!  Just yesterday there was an opinion, in Cleveland v. Oles.  Oles nearly collided with a police car on an interstate near Cleveland, and when the cop stopped him, Oles told him he was coming from a wedding.  Not a dry one, either; the officer noticed an odor of alcohol.  He couldn't tell whether it was coming from Oles or the car, so he had Oles get in the front seat of the police cruiser.  Oles complied, and upon further questioning told the officer that he'd had four mixed drinks at the wedding.

Whatever happened to the proverbial "two beers"?  The cop did the field sobriety tests, Oles flunked, and was charged with OVI.  Good things happened at the trial court:  the judge tossed the tests, holding that Oles should've been Mirandized before being asked questions in the cop car.  Good things happened in the appellate court, too; the 8th District affirmed.

In the Supreme Court?  Not so much. 

The good news for people charged with OVI and not named Oles is that the court declined to adopt a bright line rule that a defendant need never be advised of his Miranda rights when subjected to questioning after a traffic stop in a police cruiser, instead falling back on the old standby:  totality of the circumstances.  Here's the money quote:

Questioning a suspect during a traffic stop in the front seat of a police vehicle does not rise to the level of a custodial interrogation when (1) the intrusion is minimal, (2) the questioning and detention are brief, and (3) the interaction is nonthreatening or nonintimidating.

A number of takeaways from Oles.  First, it clarifies when Miranda rights have to be given.  The test isn't whether a defendant feels free to leave; as the court points out, nobody stopped for a traffic violation would consider just driving off as an option.  Instead, the test is whether a reasonable person would have understood himself to be in custody.  "Custody" implies that not only are you not free to leave now, you won't be in the near future, either.

Second, facts matter.  I was informally involved in preparation for the oral argument, and learned that the cruiser's dashboard camera showed the cop grabbing Oles, pulling him out of his car, and leading him by the arm over to the police cruiser.  Somehow, that didn't make its way into any of the briefs or the oral argument.  The Oles opinion has the trooper asking Oles "to step out of the car and sit in the front seat of the patrol car."  A more coercive effort on the part of the officer could have gone a long way toward tipping the scales toward a "custodial" setting.


Recent Entries

  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense