What's Up in the 8th
How many times have you told a client after filing a motion to suppress a search that it depends on whether the judge believes the police officer, knowing full well how that's going to turn out. What happens when the judge doesn't believe the police officer is the subject in State v. Easton.
The case involved the typical traffic stop: cop sees car go through intersection, visually estimating that speed is "well in excess" of 25 mph, pulls out and accelerates to 60 mph, catches up to car in one-tenth of a mile, paces it for two-tenths of a mile at 50 mph, and makes stop, finds drugs. One problem: the judge doesn't buy any of that, noting that there's nothing in the report about pacing, the officer didn't have any training in estimating speed, and his explanation of how quickly he was able to catch up to Easton's vehicle wasn't credible.
The State appeals, arguing that there was sufficient reasonable suspicion for the traffic stop, pointing to the officer's estimate of speed and his pacing of the vehicle, completely disregarding the trial court's finding that the officer's testimony wasn't true. And so the prosecutors get to read what I have so many times: "The trial court was in the best position to evaluate the credibility of the officers' testimony regarding the stop, and we decline to substitute our judgment for that of the trial court."
A good friend of mine who's a public defender has the 4th Amendment tattooed on his forearm, and some of the judges on the 8th might be following suit: the court also affirmed the tossing of a search in State v. McQueen. The facts aren't simple, and the outcome doesn't depend on anyone's credibility. The case just goes to show how complex search and seizure law can be.
One of Cleveland's finest, Sgt. Neal, was patrolling the streets one day when he noticed a group of black males standing together. As if that was not sufficient to arouse his suspicions, one of them, McQueen, was engaged in the crimes of Wearing a Hoodie in 74 Degree Weather and Looking at a Police Officer. Neal followed McQueen, saw him get into a red Pontiac, then get out again; while in the car, McQueen made no furtive movements.
When McQueen got out, Neal followed him some more, at which point McQueen took off running. Neal chased him and caught him. He didn't observe McQueen throw anything away during his flight, and a search of the path McQueen took revealed nothing incriminating. Not so with the red Pontiac; when the police looked inside, they spotted a gun lying on the passenger seat. The car was not owned by McQueen.
The trial court and the panel spend a lot of time talking about Neal's initial observations not establishing reasonable suspicion, but I don't see that as being relevant, because Neal wasn't seized at that point. Following McQueen didn't do the trick either; being annoying doesn't constitute a seizure.
Did the chase constitute a seizure? While the Supreme Court has held that "headlong flight is the ultimate act of evasion," it's also held that there's no such thing as an unlawful "attempted detention"; the defendant isn't seized until he submits or is captured. But the Court's decisions on this, and the lower courts' application of them, do not clearly provide an answer to the question of whether flight, in and of itself, is sufficient reasonable suspicion for a stop.
The court's on firmer ground in holding that McQueen's detention should have ended after he was apprehended. The Supreme Court decisions involve situations where the police observed the defendant throwing away drugs, or found them on the person when he was seized. Neither is applicable here. There was no reason to continue to detain McQueen.
But was that relevant to the search of the car? Let's assume that the police let McQueen go at that point; the police going up to a parked car and looking inside is not a seizure, either. And that brings up an issue that isn't addressed: did McQueen, as a non-owner, have standing to object to the search of the car?
For the most part, the case explains the police officers' general disenchantment with the 4th Amendment: trial courts get days and lawyers and appellate courts get months to ponder what the officer should have decided in seconds.
State v. Cunningham is a ho-hum case, but serves as a warning for appellate lawyers. Cunningham argued sufficiency and manifest weight. In his manifest weight argument, he articulated the proper standard of review, but then simply incorporated his sufficiency argument. No can do, says the court: "By reincorporating his sufficiency argument into his manifest weight argument, Cunningham has failed to set forth an independent argument for each assignment of error as required by App.R. 16(A)(7)." The court's become a lot tougher on briefs; according to my BFF Lexis, this is the 40th time this year that the court's cited that rule. It spells out what an appellate brief must contain. Learn the Rule. Live the Rule. Be the Rule. Otherwise, you risk having to send your client an appellate court decision which says you didn't know what you were doing, and nobody needs that headache.
Allied offense law is pretty much of a muck since the Supreme Court moved away from the "same conduct" analysis in State v. Johnson to the "different harms" tests in State v. Ruff and State v. Earley, but at least State v. Teague lends some clarity. Teague was charged with four counts of receiving stolen property after being found in possession of four firearms, which had been stolen from the same person in the same house at the same time. Teague pled guilty, and when the judge imposed 18-month sentences on each count, to run concurrently, Teague voiced her displeasure by calling the judge a bitch.
And so Teague appeals her consecutive 18-month sentences, totaling six years. The panel has no trouble deciding that the offenses should have merged, and I am enthralled to learn that when I steal a case of beer from Giant Eagle -- and it's just a matter of time before I do -- I will only be charged with one count of theft, instead of twenty-four.
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