What's Up in the 8th
I've often chided the Cleveland police for their failure to grasp even the rudiments of the law on search and seizure, but apparently we can add Shaker Heights to the list of police departments where the 4th Amendment is no more than a distant rumor. After determining that Adrian Maddox was the person who'd broken into a convenience store three days earlier, the police went to his apartment to arrest him. When asked in the suppression hearing why they hadn't gotten a warrant, the detective replied, "That's not how we do things."State
v. Maddox will hopefully prompt a re-evaluation of that policy. An arrest is a "seizure" requiring probable
cause and a warrant, although there are three circumstances where the latter is
not required: when the arrestee has
committed an offense in the officer's presence, where the arrest is for a
felony and occurs in a public place, and where exigent circumstances
exist. None of those three applied here.
The trickier question was whether the warrant requirement
was obviated by Maddox's opening the door when the police knocked; there's a
Supreme Court decision that says that someone voluntarily standing in an open
doorway has exposed himself to public view just as if he were standing on a
street corner. But Maddox backed into
his hallway after he opened the door, and the police went inside to arrest
him. That's a fine point - would the
result be the same if the police had grabbed Maddox before he could retreat? -
but the court's opinion can be read as holding that the seizure would be
illegal if the suspect didn't know it was the police who were knocking. (The cops were in plain clothes and didn't
announce themselves.)
One more interesting thing about the opinion: it doesn't cite a single Ohio case, relying
instead on Federal decisions, none of them from the 6th Circuit. Something to keep in mind if you're doing a
brief on 4th Amendment issues in the 8th District: don't be parochial.
Interestingly, a different panel comes up with a different
answer in a similar fact situation in Parma
v. Skonezny. The police had responded
to the scene of an auto accident, and several of the participants pointed to a
truck parked a short distance away which they claimed was involved. When the truck drove off, the officer followed it, saw it pull into a driveway, and
the driver get out and walk into the house.
The officer went to the front door and knocked on it, and a few minutes
later Skonezny, whom the officer recognized as the driver, answered, soaked to
the gills. After some further questions,
the officer arrested him. The findings
of fact made by the trial judge in denying the motion to suppress are conflicting,
prompting a dissent, but the panel seems to otherwise agree that this was a "consensual
encounter," and upholds the search. At
first glance, Skonezny seems to
conflict with Maddox, but there are
some important differences: the officer's
intent was not to arrest Skonezny, but merely to question him regarding the
accident, Skonezny invited the officer into the home, and exigent circumstances
arguably existed; the officer could hardly have been expected to go get an
arrest warrant after realizing Skonezny was drunk.
State
v. Price represents the other big win for defendants last week. A woman reported that Price, an acquaintance with
whom she'd previously had sex, had raped her.
The detective set up a "pretext" call, with the woman calling Price and
trying to get him to admit to the rape, while the police recorded the
conversation. It didn't go as planned; Price
adamantly maintained that the sex had been consensual. He was
arrested nonetheless, and when questioned by the detective, invoked his right
to counsel. The detective decided to
read the woman's complaint to Price "to give him the advice as to what was
going on and why he was there." Price
responded by saying it didn't happen, suggesting that the woman had "mental
problems," and asking the detective whether he had proof that Price was even in
the area. At trial, the detective
testified on direct examination that the first time he'd heard about a consent
defense was the first day of trial. The
prosecutor cross-examined Price as to why he hadn't said anything about consent
to the detective, and argued to the jury that Price had conjured up the consent
defense on the eve of trial.
This was fairly blatant misconduct - both the detective and
the prosecutor had listened to the pretext call, after all - but there's
another issue here. In Doyle
v. Ohio, the Supreme Court had held that a defendant's post-arrest
silence can't be used to impeach him.
The State argued that Price's responses
to the detective took the case out of Doyle,
but the panel correctly finds that the statements weren't inconsistent with a
consent defense, and besides, this wouldn't have permitted the State to
introduce the statements, via the detective, in its case in chief. The court finds plain error in the admission
of the testimony and reverses, and the opinion's well-written and does an
excellent job of analyzing Doyle's requirements. (The US Supreme Court had argument last
Wednesday in a case on whether the police can use a defendant's pre-arrest silence, and I'll discuss that
later this week.)
Finally, our weekly Advice to Criminals portion of the blog,
courtesy of State
v. Williams. If the police
respond to a call of a breaking and entering, and find a broken window and you
crouched under the counter, trying to hide, it's a tough sell to convince them
that the owner gave you permission to be in the store to do some work. It's a much tougher sell if the owner has
recently died, and his obituary is taped to the store's window. And it's an impossible sell for your
appellate lawyer to claim that the evidence is insufficient to convict you
because the storeowner is dead and therefore nobody could testify that you
weren't authorized to be in the store.
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