In 1998, Kelli Garrett was convicted of aggravated robbery and kidnapping, with various firearms specifications.  The judge gave her 39 years in prison.  She caught a break, though; her sentence was eventually vacated because of Foster, and back she went to be resentenced. 

Her lawyer was well-prepared for it.  Garrett was 19 at the time of the crime, and she’d put the intervening nine years in prison to good use, completing several academic courses and getting treatment for her alcoholism.  She also took full responsibility for her actions and expressed remorse.  The state was unmoved; it argued that “retaining the present sentence would be the appropriate disposition of this case.”

So instead of giving her 39 years, the judge gave her 53. (more…)

As I mentioned on Monday, the US Supreme Court’s holding oral argument this week in Kennedy v. Louisiana, which presents the issue of the constitutionality of imposing the death penalty for child rape.  The case would seem to be dictated by precedent:  back in 1977, in Coker v. Georgia, the Court struck down a statute which imposed the death penalty for rape, holding that death was a “grossly disproportionate” punishment.  Since then, the view has predominated that capital punishment is reserved for situations involving its Biblical roots of “a life for a life.” (more…)

According to the Canadian Coalition Against the Death Penalty, Jose Medellin, who’s sitting on death row on Texas, could use a penpal.  At least, he could have back then; he was 24 when he wrote that, and he’s 33 now.  As you can see, Jose is a little circumspect about exactly how he wound up being slated for execution; the way he tells it,

at the age of 9 years old I came to live with my parents in Houston.  I went to school there till the tenth grade, after that I dropped out of school and went to work for a construction company till I was 18 years old.  At that age is when I got arrested and a few months later I was sitting here on death row.

Maybe some of you, like me, don’t remember landing on death row being one of the rites of passage of our youth.  Turns out that Jose’s reticence to share the details of his conviction is somewhat understandable.  (more…)

Last year, the US Court of Appeals for the District of Columbia threw out the District’s gun control law, which essentially banned the possession of handguns.  Yesterday, the Supreme Court heard oral argument in the case, and two things are relatively clear:  First, the Court is going to confirm that the 2nd Amendment grants an individual right to bear arms, rather than a collective right connected to service in a militia.  Second, no one has a real clear idea on what that will mean, or whether it will mean anything at all. (more…)

As Justice Frankfurter put it in a concurring opinion back in 1961, “the course of true law pertaining to searches and seizures has not — to put it mildly — run smooth.”  That’s been particularly true of vehicle searches.  The automobile exception and the inventory exception were created to deal with the special problems that cars presented to traditional 4th Amendment jurisprudence.  Search incident to arrest has also presented problems.  The purpose of that exception, of course, is to allow the police to search a defendant or the immediate area around him for weapons, contraband, or evidence, to prevent him from gaining access to those items.  While the search of the person himself is clearly permissible, what if he was just taken out of a car?  Can the police search the car, too?  And, if so, what portions?  Just the area was occupying?  A glove compartment?

Back in 1981, the Supreme Court pretty much threw up its hands at all this and, in New York v. Belton, adopted a “bright-line” rule:

We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile… It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach… Such a container may, of course, be searched whether it is open or closed…

As a reading of the opinion in Belton makes clear, the driving force was a desire for simplicity:  everybody would know exactly what could be done.  And that’s been the law for over a quarter century. 

Flash forward to 1999, where a couple of Tucson police officers go to arrest someone they suspect of drug trafficking.  When they get to his house, they see the suspect pull into his driveway, get out of his car, and walk toward them.  They promptly arrest him, handcuff him, and put him in the back of the police cruiser, then go about searching the car, finding a gun and a plastic baggie of cocaine.

This was a bit too much for the Arizona Supreme Court, which tossed the search.  It distinguished Belton on the basis that that case dealt only with the boundaries of a search incident to arrest, while Gant presented the question of whether such a search was necessary at all; while in Belton, the four occupants of the car were standing by the roadway at the time of the search, and arguably could have re-entered the car and gained access to a weapon or destructible evidence, Gant, from his position in the back of a cruiser, handcuffed and under the watchful eye of a police officer, posed no danger of doing that.

How this is going to play out in the US Supreme Court is another matter.  One of the clues might be how the latter court framed the issue, granting cert on the following question:

Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless search incident to arrest conducted after the vehicle’s recent occupants have been arrested and secured?

The facts in Gant are about as unfavorable as they could be to the prosecution for a case on this:  there was no probable cause to search the car, it was legally parked so it wasn’t going to be impounded and subject to a later inventory search where the gun and drugs would have been found anyway, and there was no connection between the car and Gant’s arrest; it makes no more sense to have searched his car after he exited it and walked away from it than there would be to have searched his car if he’d just walked out the front door of his house.  On top of that, the only way Gant would have less access to the car at the time of the search is if the police had already transported him to the station.

So why’d the Court take the case?  Given what they said in Belton, it’s hard to believe that they’re going to require a police officer to make an on-the-spot determination of whether there’s a “threat to safety or a need to preserve evidence.”  They could adopt another “bright-line” rule:  when the defendant has been handcuffed and no longer has any access to the car, there’s no longer any basis for searching it incident to arrest.  But that creates a whole ’nuther set of potential fact situations, and could indeed lead to the unintended consequence of the police not securing a defendant just so they have the ability to search the car.

If I had to guess, I’d say that the Court’s going to focus on the “recent occupant” part of the equation, and hold that as long as the defendant hasn’t been transported from the scene, the police still may search his vehicle incident to that arrest.  That has the sole virtue of simplicity, and one might legitimately argue that that virtue is not sufficient to overcome the damage such a decision would do to any logical construct of Fourth Amendment law, particularly as it applies to cars.  Then again, one might legitimately argue that there’s not much damage left to be done. 

A couple weeks back, Dick Feagler, the Cleveland Plain Dealer’s resident scold, penned his latest installment on why America is going to hell in a handbasket.  For those unfamiliar with his ouevre, Feagler’s columns typically cast a covetous eye back to those days of yore when men were men and women weren’t, and then focus despairingly on what he perceives to be the latest data point on our glide path to total decadence.  On this occasion, according to the headline, it was that “nothing is sacred — or taboo — on TV.”  That’s as far as I got, or needed to.  I doubt if I could make it through an entire Feagler piece at gunpoint any more.  Besides, if you’re into that sort of thing, there are people who do it better, like Andy Rooney, although at this point even he can barely open his mouth without lapsing into self-parody.  I guess nostalgia isn’t what it used to be.

At any rate, if Feagler believes things are bad now, he probably doesn’t even want to think about what might happen on Friday, when the US Supreme Court is due to consider whether to accept review of the 2nd Circuit’s decision in FCC v. Fox Television, which struck down the FCC’s “fleeting expletives” policy. (more…)

A mere two days after the Oscars, we can safely hand out the Award for the Worst Fourth Amendment Decision of the Year.  The envelope, please… Ladies and gentlemen, let’s give it up for the 9th District’s decision in State v. White. 

The protagonists of our story are Steven Barrett and Cynthia White, whom the police have suspected for some time of running a meth lab out of their house.  Through various plot devices, mainly a snitch, our story is advanced to the point where Barrett is stopped for speeding, and with the aid of a drug-sniffing dog — definitely not man’s best friend — several items are discovered which are ordinarily used in making methamphetamine.  As Barrett was being led to the cruiser in handcuffs, he volunteered without any prompting that he thought there might be a meth lab at White’s house.

The police scurried over there to, as they put it, “do a ‘knock and talk’ in order to ‘further probable cause’ for a search warrant.”  This tactic is coming into vogue:  essentially, the police knock on the door, hoping that the owner will do something stupid, like consent to a search or engage in an act which might give the police probable cause to search the premises.  White didn’t respond to the officers’ knock, but they saw her go into the basement, then run back upstairs, at which point they heard glass breaking.  They stormed the house, arrested White upstairs, and then went into the basement to check for people “who may have been hiding.”  They finally got a warrant at this point, and conducted a full search of the house, which produced no drugs, but sufficient other items to charge White and Barrett with illegal manufacture of drugs.

The trial judge tossed it all out, finding that Barrett’s un-Mirandized statement wasn’t admissible, and that in any event the police should have gotten a warrant.  The 9th District reversed.

Now, understand, I’m not that upset with the result.  I think it’s wrong, but far more troubling than the destination is the journey.

In fact, I can pretty much agree that the court got it right on Barrett’s statement.  The police officers were the only ones who testified at the suppression hearing, and the trial court didn’t find the officers were being untruthful when they testified that the statement was volunteered.  Kinda funky that somebody’s just going to blurt out, “Hey, we’re running a meth lab out of the house I’m living at,” but stranger things have happened.  And I can even see how a court might uphold the search of the house.  I tend to agree with the trial court, that the police can’t claim an “emergency” of their own making, and that the appropriate course would have been to get a warrant.  But it’s not the most ridiculous thing in the world for the appellate court to have found that White’s actions created an emergency situation which justified entry into the premises.  I’ve seen worse.

But that’s not how the court handled it.  First, the court seized on RC 2933.33, a statute passed in 2006 which provides that, because meth labs pose a danger of blowing up, if police have probable cause to believe there’s one in a house, those dangers constitute sufficient “exigent circumstances” to justify a warrantless search. 

Now, this is not a well-known provision of the law.  According to my BFF Lexis, it’s been cited exactly twice by any Ohio court.  Both were by the 9th District.  One was White.  What really will have anyone’s head spinning on its axis is how the court handles the statute, and comes to the conclusion that a warrantless search doesn’t even require probable cause to believe there’s a meth lab, just something “approaching” that.  The court begins by saying that the dangers are so great that this really doesn’t fall within the “exigent circumstances” exception to the warrant requirement, but within the “emergency aid” exception.  The latter, at least according to cases in the 9th District, demands only “some reasonable basis, approaching probable cause.” 

But what about the statute, which does specify probable cause?  The court dispenses with that in language that looks like something the Red Queen might have said in Through the Looking Glass:

While [the statute provides] that “probable cause to believe” that a methamphetamine laboratory exists on premises constitutes “exigent circumstances,” it does not provide that “reasonable grounds to believe” that a methamphetamine laboratory exists does not constitute “exigent circumstances.”

I was temporarily heartened by the fact that two judges merely concurred in the judgment, apparently unwilling to follow the opinion’s author down this particular rabbit hole.  But the concurrences make no sense, either.  The first says the police could have obtained a warrant, then drops that issue without further ado.  It then looks at exigent circumstances (not “emergency aid”), and uses the wrong standard in determining they exist (”reasonable suspicion” instead of “probable cause”).  The second concurrence says that it doesn’t matter whether it’s exigent circumstances or emergency aid, because probable cause is all that’s required, and the parties concede that existed.  Which, of course, the parties didn’t…

I’m sorry, but this is just a flat-out dreadful decision. 

The cops see your client standing on a street corner drinking a bottle of beer.   They arrest him for having an open container, and a search reveals several rocks of crack in his pocket.  You file a motion to suppress, pointing out at the hearing that open container is a minor misdemeanor, which, except in rare circumstances which aren’t present here, isn’t an arrestable offense under Ohio law.  Since the arrest is no good, the search isn’t either.  The judge agrees, bangs her gavel, tosses the evidence, and that’s the end of that case.

That might change, depending on the outcome of a case argued in the Supreme Court a few weeks back, Virginia v. Moore.  Back in 2003, Virginia police arrested David Lee Moore for driving with a suspended license, and in the search incident to that arrest found a not inconsiderable quantity of cocaine on him.  He was convicted, but on appeal the Virginia Supreme Court noted that Virginia law makes driving with a suspended license a misdemeanor for which an officer can only issue a citation.   It held that since his arrest was illegal, the evidence turned up as a result of the search incident to that arrest was illegal, too.  “Fluit of the poisonous tlee,” as the Court said back in Wong Sun. 

Seems like a no-brainer to me, but here’s where it takes an interesting turn:  the State of Virginia (and 18 other states) have argued to the Supreme Court that the exclusionary rule only bars the use of evidence seized where the arrest is in violation of Federal constitutional law.  In other words, if the police have probable cause to make an arrest — that is, probable cause to believe that a crime has been committed — the ensuing search is permissible even if the arrest itself was illegal under state law.

This is setting the bar pretty low, because in prior decisions, specifically Atwater v. Lago Vista, the Court has held that any crime, no matter how trivial, is sufficient for an arrest.  (In Atwater, it was the defendant’s failure to have her children in seatbelts.)  The state’s argument, though, is that a contrary rule allows a state to define the limits of Federal constitutional law:  a search conducted in one state might violate the Fourth Amendment, and the same search in another not, simply because of the differences in the state laws on what constitutes a legal arrest.

Also, keep in mind that the exclusionary rule is not part of the Fourth Amendment; it’s simply a ”prophylactic rule,” like Miranda, that the Court has devised to effectuate the protections of the Fourth.  Given that the Court’s exhibited a quarter-century year trend of restricting the use or effect of the rule, it’s not inconceivable that it might decide that the rule’s purposes aren’t served by excluding evidence where there was probable cause to arrest, but a state law technicality rendered that arrest illegal.

The effect that this might have on Ohio criminal cases is further muddied by a couple of Ohio Supreme Court decisions.  Back in 2000, the court was confronted with a case in which the defendant had been arrested for jaywalking, the ensuing search resulting in the discovery of cocaine.  The state argued that although the arrest was illegal because the statute (RC 2935.26) prohibited it, the statutory illegality wasn’t a constitutional violation, and didn’t justify suppression of the evidence.  In State v. Jones, the court rejected that argument, holding that a minor misdemeanor arrest was a violation of the Fourth Amendment and of the Ohio Constitution.   

Fast forward to 2003, and the case of State v. Brown:  another jaywalking arrest which produced a drug possession charge, but in the interim Atwater has come down, and so the state argues that Atwater overrules Jones.  The court rejects that argument, too, holding that “the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.”  In short, even if the arrest would be permissible under the Federal constitution, it’s impermissible under the state constitution, and the court will apply the exclusionary rule to anything seized pursuant to such an arrest.

So Ohio law won’t be impacted by the upcoming decision in Virginia v. Moore, right?  Maybe and maybe not.  The problem is that Ohio’s trend toward giving greater protection under the state constitution than required under the Federal constitution — a trend which included the ruling in State v. Farris a few years back that Ohio’s self-incrimination clause provided greater protection than the Fifth Amendment — took a bit of a detour last year in State v. Buzzard; while the case didn’t involve the precise question of what protections were afforded by the state and Federal constitutions, a footnote in the decision carries some ominous portents:

The parties and courts have analyzed this case under the express rubric of Fourth Amendment jurisprudence. Because the texts of Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution are virtually identical, we interpret the two provisions as affording the same protection.

Was that limited only to the facts in Buzzard?  Does that negate Brown?  How will that impact Ohio’s handling of Virginia v. Moore?  Stay tuned.

Meanwhile, speaking of prophylactics, my all-time favorite sports line was uttered by CBS broadcaster Brent Musberger in a late-season USC football game a few years ago:  “And the road to the Rose Bowl is paved with Trojans!”

Musta been some game.

Have a good weekend, and see you on Monday. 

Yesterday, I talked about Crawford v. Washington, the US Supreme Court decision back in 2004 which held that if a statement is “testimonial,” it can’t be admitted, even if it falls within one of exceptions to the hearsay rule.  I also mentioned one of the exceptions to Crawford itself:  even if a statement is testimonial, it can be admitted if the person who made it takes the stand.  (In that case, of course, it would still have to qualify as an exception to the hearsay rule.) 

The Supreme Court granted certiorari a week or so back in Giles v. California to consider another exception.  That exception is aptly summarized by this line from the opinion of the California Supreme Court which it will be reviewing:

As explained below, we conclude that defendant forfeited his right to confront his ex-girlfriend when he killed her.

The facts in Giles are fairly straightforward:  the defendant was on trial for murdering his girlfriend, but claimed self-defense.  That was rendered problematic by the fact that the girl had been shot six times, at least one of which occurred while she was lying on the ground.  His claim to being afraid of her became even more difficult to maintain when the trial judge permitted a couple police officers to testify that they’d responded to a domestic violence call from Giles’ girlfriend just two weeks before the killing, in which she’d told them that Giles had just punched her, choked her, and held a knife to her throat and threatened to kill her.

The testimony came in under a weird California hearsay exception.  (Something about a statement regarding the suffering of personal injury, if “otherwise trustworthy.”)  Back in Davis v. Washington, a post-Crawford case from 2006, Justice Scalia had written that a defendant might forfeit his right to confront his accusers if he had been responsible for the accuser not showing up at trial.  Giles argued that this required the state to prove that the motive for killing his girlfriend was to keep her from testifying, but the California court didn’t buy it:  they held that as long as the defendant’s actions prevented the witness from testifying, his motives for those actions were irrelevant.

Giles is an extreme factual situation, but it’s somewhat surprising that the forfeiture issue hasn’t come up in any Ohio cases so far; it’s not uncommon in domestic violence situations.  And it raises some intriguing questions on that score.  Say, for example, the victim makes a detailed statement to the police about the abuse, but refuses to testify when the case comes to trial.  It could be that the victim is afraid to testify because the perpetrator threatened her, or it could be that the victim simply doesn’t want the defendant to go to jail.  In the first situation, forfeiture would obviously apply, and the statement would be allowed.  In the second it wouldn’t.  But how do you tell which is which?  What’s the state’s burden there? 

And let’s throw another log on the fire:  what if the victim is afraid to testify, but that’s due to just a general fear of the defendant, rather than anything he’s done or said?  Logically, it seems that it would be the defendant’s actions, not the witness’s fears, which would determine that question; all the talk about forfeiture has revolved around some definitive act by the defendant, and the very nature of the term (”forfeit”) implies that.  Again, who has the burden of proof, and what is that burden?

Those are some questions that are bound to come up in the future.  And if you’re interested in the subject, you can check out the case on ScotusWiki; you can find linkds to all the opinions and briefs there.

Meanwhile, “throw another log on the fire”?  When did I start talking like Andy Rooney?

Just about every criminal defense lawyer knows that Crawford v. Washington, the 2004 Supreme Court decision holding that the defendant’s confrontation rights barred admission of a ”testimonial” statement, was one of the most unexpected and sweeping changes in criminal law in the past decade or so.  As might be expected, courts have grappled with the meaning and effect of Crawford.  While the exact definition of “testimonial” is still subject to debate, by early last year, the 8th District had at least gotten the basics right:  Judge Gallagher’s opinion in City of Cleveland v. Colon (discussed here), contains one of the clearest expositions out there on how Crawford works, specifically the interplay between a testimonial statement and the hearsay rule.  

It’s been pretty much downhill for the 8th District on Crawford issues since, and that slide continued with last week’s decision in In re DD, which involved a juvenile accused of raping a 6-year-old.  The trial court had allowed a nurse to testify about the statements the victim made to her, and the defendant argued that the admission of those statements violated Crawford.

The court could have resolved that issue by simply saying that it didn’t apply, because in this case, the victim testified.  That’s one of the exceptions to Crawford:  even if an out-of-court statement is testimonial, its admission isn’t barred if the person who made it testifies in court.  After all, you can hardly claim that your right to confront and cross-examine your accuser has been violated if you get to confront and cross-examine your accuser.  So all the court had to say was, hey, the kid testified, end of discussion.

Which it did, but not until after it had discussed Crawford in some detail, and made pretty much of a hash of it.  Taking language from Crawford that indicates non-testimonial hearsay doesn’t implicate the Confrontation Clause, the court somehow concludes that “Crawford only applies to hearsay statements that are not subject to any hearsay exceptions.”  (The court came to the same conclusion a month ago in State v. Goza; the same judge authored both opinions.)

In other words, if a statement does fall within a hearsay exception, then Crawford doesn’t apply.  For example, if a statement qualifies as a declaration against interest, you don’t even have to bother with determining whether it’s testimonial or not.

Unfortunately, that’s wrong:  indeed, the fact pattern I just gave you is the one from Crawford.  The state had attempted to introduce a statement under the declaration against interest exception to the hearsay rule, and the Court held it couldn’t do that, because the statement was testimonial. 

While the definition of what constitutes testimonial statement gets a bit tricky, the basic Crawford analysis couldn’t be simpler.  

• First, you decide if the statement is testimonial; if it is, it doesn’t come in, unless the declarant testifies. 
• If it isn’t testimonial, then you proceed to the hearsay analysis;  if it falls within an exception, it’s admitted, if it doesn’t, it isn’t. 

It’s that simple.

It may be that the court still came to the right conclusion in DD, but it’s hard to tell.  One of the proposed definitions of a testimonial statement is “a statement about a past act or event which a declarant would reasonably expect to be used later in a criminal prosecution.”  The court in DD doesn’t specifically mention this definition, but obviously has it in mind, and dismissed it with the observation that “it is extremely unlikely that a six-year-old child was thinking about trial or criminal charges when he spoke to the nurse.” 

That’s quite true; as I’ve mentioned before, one of the problems with the “reasonable expectation” test is that it doesn’t work for young children:  they have no concept of what a trial is, let alone the likelihood of whether their statements will be used at one.  That’s why the Ohio Supreme Court last year in State v. Siler (discussed here) held that in interrogations of young children, it was the intent of the person conducting the interrogation, not the expectations of the child, which should control.  While Siler involved the police interrogation of the child, the opinion cited numerous cases which held that an interrogation by a social worker or a nurse, as happened in DD, could be held to be testimonial.  DD, of course, never mentions Siler, and the facts really aren’t developed sufficiently in the opinion to determine whether the questioning by the nurse might have produced a statement that should have been regarded as testimonial.

So there’s certainly a possibility that DD came up with the right result.  But if the process is skewed, as it was here, that significantly undermines the confidence in the result.  That becomes a particular problem a few years down the road if this case goes into Federal court on a habeas petition.  (And while a juvenile case isn’t likely to, a case like Goza, where the defendant got 31 years for rape and kidnapping, is.)  As most criminal defense lawyers also know, the 1996 changes to the habeas law substantially restricted its availability.  Instead of allowing Federal changes to second-guess state court determinations of Federal law, a Federal court isn’t allowed to grant relief unless the state court’s decision was based on a “misapplication of clearly established Federal law.”

Well, guess what?  You don’t get much more of a misapplication of clearly established Federal law than a decision which states that Crawford only applies to statements which don’t fall under a hearsay exception.  With DD and Goza, we have four judges signing off on two opinions in the past month which establish, for the largest county in Ohio, a precedent on Crawford issues that is plainly wrong. 

So if you’re practicing in Cuyahoga County, get a copy of Judge Gallagher’s decision and take it along with you when you have a trial where you expect Crawford issues to arise.  And hope that the judge hasn’t read DD or Goza.

Tomorrow, I’ll talk about a forthcoming US Supreme Court case on another exception as to what constitutes a testimonial statement.