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  • Is a dog sniff a search after all? at The Briefcase by Russ Bensing
    which had been in the cruiser all this time around Rodriguez s car Rodriguez refused so the cop waited another eight minutes for the other officer to arrive then used the dog And you know how that turned out This happened in Nebraska and the 8th Circuit has a rule that a de minimis delay in a traffic stop so as to allow a dog search doesn t violate the 4th Amendment That s an easy one to dispose of the Supreme Court has previously held that authority for the seizure ends when tasks tied to the traffic infraction are or reasonably should have been completed and here the officer admitted they were before the drug sniff occurred The Court reaffirms that principle reverses The End Not quite While Rodriguez can certainly be read as a simple reiteration of the rule that a stop cannot be prolonged beyond the time necessary to issue the ticket it raises the question of whether the Court is backtracking from its 1983 decision in United States v Place where it held that a dog sniff was not a search within the meaning of the 4th Amendment That was based on the Court s prevailing theory on search and seizure law articulated in Katz v United States that the focus was on the defendant s reasonable expectation of privacy since no one had a reasonable expectation of privacy in the outside of his car on a public street having a dog sniff around it was no different than having a person including a cop walk up to it the 4th Amendment didn t come into play But the Court s developed another method of analyzing those issues actually returning to the property interest test that was utilized prior to Katz They used that to strike down the attachment of GPS units to vehicles in United States v Jones and just two years ago to hold that taking a dog up on a porch of a house to sniff at the door was an unconstitutional search in Jardines v Florida The Rodriguez opinion describes a dog sniff as a measure aimed at detecting evidence How is that not a search In fact the Court clearly cabins off dog sniffs from the regular routine of a traffic stop The Court has held that the officer s mission there is not simply writing the ticket he can also inspect the license and registration and determine whether there are outstanding warrants on the driver or passengers But those are matters of roadside safety and a dog sniff is not fairly characterized as part of the officer s traffic mission Does that mean the officer needs some reasonable suspicion to conduct a dog sniff even if the stop isn t delayed to do so The votes probably aren t there for that now but if a dog sniff is not part of the traffic mission and it s a measure aimed at detecting evidence that s at least an argument

    Original URL path: http://briefcase8.com/2015/05/is-a-dog-sniff-a-search-after-all.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    that the fact that you have not been satisfactorily rehabilitated in the past after sanctions imposed indicates a likelihood of reoffending The court also considered the seriousness of Gum s conduct noting that he led the police on a high speed chase caused financial harm to the victim and pose d a direct threat to the safety of our streets The panel concludes these findings were sufficient but what I m seeing is nothing more than a recitation of the seriousness and recidivism factors in RC 2929 12 The court did clear up one issue that s resulting in different panels coming up with different results Padilla v Kentucky established that an attorney s failure to properly advise a non citizen client of the possible effects on his immigrant status could constitute ineffective assistance but the 8th handed down several decisions holding that any problem was cured by the judge s giving the advisement on that required by RC 2943 031 It s been moving away from that but the problem was highlighted in a post I did a couple months ago in State v Ayesta the panel had concluded that the statutory advisement wasn t sufficient but a week later in State v Yapp a different panel concluded that it was But that s so five minutes ago Last week the panel reconsidered Yapp and reversed aligning itself with Ayesta and similar cases Defending child sex abuse cases has always been hard not that it shouldn t be but it got harder with the 8th s decision two weeks ago in State v Czech a case involving a grandfather molesting his grandchildren Czech raised an issue concerning the specificity of the indictment but that went nowhere there was no objection to the indictment so it s reviewed for plain error and that s not going to be found where the defendant doesn t assert an alibi defense or otherwise show he was away from the home for an extended period of time The better argument seems to be the sufficiency of the force element That s a hard sell where the perpetrator is a family member the courts will infer coercion from the authority inherent in that relationship But here neither of the witnesses alleged any coercion and one acknowledged that she did it because otherwise she would ve felt guilty about not making her grandfather happy That s sufficient to show a subtle psychological form of coercion the panel decides A misdemeanor domestic violence case results in a reversal and a 40 page tome on the subject in Cleveland Heights v Cohen First up was the child endangering charge which the court tosses for insufficient evidence the basis of the charge was that the scuffle was done in front of the children but that s not enough to establish a substantial risk of harm to them The larger argument centered around whether disorderly conduct recklessly causing inconvenience annoyance or alarm by engaging in fighting which is what the

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  • What's Up in the 8th at The Briefcase by Russ Bensing
    improperly to influence a witness with respect to the witness s testimony in an official proceeding Marshall argued that the emphasized portion applies to both corrupting and influencing i e that actual testimony in an official proceeding is required The panel s rejection of this argument is a grammarian s delight in which we find sentences like the last antecedent rule of grammar provides that referential and qualifying words and phrases where no contrary intention appears refer solely to the last antecedent and or is a function word indicating alternatives between different things and that the use of or indicates the legislature intended a separate and distinct identity to each of the articulated phrases This will be on the test I m still waiting for the result in Doumbas but I don t think Marshall is a harbinger of the outcome I didn t make the bribery argument banking mainly on insufficiency of the evidence which was much more tenuous with regard to Doumbas than to Marshall We ll see State v Taylor is another appeal I handled and that decision did come down with results as unfortunate as Marshall s Taylor was accused of molesting his four year old daughter and the State s case was made iffier by the fact that the child testified that the father hadn t done anything The prosecution sought to compensate by having everybody else testify to what the child told them the social worker for example was allowed to read his entire nine page report into the record which contained numerous statements made by people who never appeared at trial The panel concludes that although the trial judge permitted the admission of an alarming amount of hearsay it wasn t that alarming the main evidence the child s statements to the mother who was seeking custody were excited utterances lending credence to my position that in Ohio it is impossible for a child under six to say anything that is not an excited utterance There was evidence against Taylor to be sure a key one being the finding of his DNA inside the girl s underpants the explanation that it might have transferred in the laundry being somewhat unconvincing Still the best indication of what the trial judge thought of the whole case was that he 29 d the kidnapping charge and when Taylor was convicted of gross sexual imposition gave him one year of community control sanctions If there were any lingering doubts about the futility of sentencing appeals State v Booker dispels them For strangling his girlfriend Booker gets 19 years consecutive time for involuntary manslaughter kidnapping felonious assault domestic violence and violating a protective order His appeal argues the judge didn t give proper weight to seriousness and recidivism factors but that s irrelevant the appellate court has no jurisdiction to review how judge weighs factors only whether he considered them And we ll presume that he did even if he didn t say that And we won t

    Original URL path: http://briefcase8.com/2015/06/whats-up-in-the-8th-124.html (2016-04-27)
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  • Case Update - OSC Edition at The Briefcase by Russ Bensing
    It first distinguishes between waiver and forfeiture Waiver requires an affirmative act but a defendant doesn t waive an allied offense argument by pleading guilty because merger is a sentencing issue Forfeiture on the other hand is the failure to object to a claimed error An appellate court can still consider a forfeited error under the plain error doctrine But in addition to the error being plain there s another requirement Even if the error is obvious it must have affected substantial rights That means Rogers had to show a probability that the judge would have found the offenses merged and here the record doesn t show that Actually the whole point was summarized more elegantly by the initial panel opinion in Rogers There is no plausible interpretation of the plain error doctrine that would allow an appellate court to find error simply because there are no facts to show whether any error occurred The bottom line is that if you re the attorney and you ve got a semblance of an argument on allied offenses it s up to you to make it And that s the way it should be Rogers answers one other question if a defendant receives stolen property of more than one person and then disposes of it in a single transaction he can be charged with one count of receiving stolen property for each individual the property came from By the majority opinion s count in State v Keenan there have been forty prior judicial decisions in the case The 41st isn t a pretty one Keenan along with Joe D Ambrosio were convicted and sentenced to death in 1989 for the murder of Tony Klann Keenan s conviction was reversed for prosecutorial misconduct in closing argument but the second trial in 1994 produced the same result The key witness against D Ambrosio and Keenan was Edward Espinoza a participant in the crime who testified against the pair in return for a lesser sentence It was later determined that the State had failed to disclose numerous statements Espinoza made to the police which cast substantial doubt on his story A Federal judge in habeas ordered new trials The cases proceeded on separate tracks and D Ambrosio was ultimately released Keenan wasn t and Espinoza was now dead The State sought to use his testimony from the first two trials but the trial judge refused observing that the defense didn t have an opportunity to use the now disclosed materials to impeach him then The judge ultimately dismissed the case with prejudice finding that in light of the State s egregious prosecutorial misconduct Keenan cannot receive the fair and Constitutional trial that he is entitled to today In an opinion just thirteen paragraphs long the court by a 4 3 vote concludes that the trial court abused its discretion by ruling on the motion without allowing the parties to develop the record That contention is pretty much eviscerated in the dissenting opinion by French The

    Original URL path: http://briefcase8.com/2015/06/case-update---osc-edition-1.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    counties pay less than that But Ben Swift figured out a way I kid about how I m finding it easier to get things done now that I ve gone to a 30 hour day but Swift apparently made that a reality in 2008 he billed four Ohio counties 2 967 hours for court appointed work for a total of nearly 132 000 If you re wondering how the math works out it doesn t that would require someone to work an average of over eight hours a day for 365 days That earns him a two year suspension with one year stayed on conditions But barely three justices would have imposed an indefinite suspension The Ohio Supreme Court also handed down decisions in two criminal cases which we ll discuss on Wednesday Let s head over to the courts of appeals There s case law holding that self defense and provocation for an inferior offense like aggravated assault or voluntary manslaughter are not necessarily mutually exclusive but as the 2nd District explains in State v Elliott you don t automatically get instructions on both either McKee was the passenger in Elliott s pick up truck and the two got into fight which continued after the truck crashed with Elliott ultimately getting back into the truck and running over McKee The court correctly observed that Elliott who contended that the fight started because McKee pointed a gun at him never claimed to be acting out of rage or sudden passion but testified only that he was in fear which warranted an instruction on self defense but not aggravated assault The court also notes that provocation requires a two step analysis the provocation must be objectively reasonable enough to incite the defendant to use violence and the defendant must subjectively be acting out of rage If you ve got a case involving a charge of driving while impaired on drugs as opposed to alcohol the 4th District s decision in State v Husted is a must read Husted was found sleeping in her car in a gas station and gave confusing answers to the officer s inquiries like saying that she had to check on her child in the passenger seat when there was no child in the car A cut off straw fell onto the seat when she got out of the car and when the officer asked if she d been snorting any drugs she said she had but specified it wasn t meth or cocaine And of course there was slurred speech unsteadiness bloodshot eyes Slam dunk right Wrong Citing numerous other cases along the same line the panel reverses Here s the money quote Precedent requires that in a prosecution for operating a vehicle or being in physical control of a vehicle while under the influence of drugs of abuse the court must grant a Crim R 29 motion for judgment of acquittal if the state fails to present evidence that the defendant even though impaired in

    Original URL path: http://briefcase8.com/2014/11/case-update-91.html (2016-04-27)
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  • New life for the Ohio Constitution at The Briefcase by Russ Bensing
    look at her figured she should pull him over for the violation that had occurred more than two miles back She walked her dog around the car which resulted in the discovery of 120 oxycodone tablets and that got Brown the mandatory three year prison sentence But let s go back to the stop The officer in this case was from Lake Township in Stark County and it s undisputed that she didn t have the authority to make a traffic stop for a marked lane violation on an interstate highway That s what RC 4513 39 says anyway To which the State responded so what That s a statutory not a constitutional violation and the exclusionary rule comes into play only for the latter And there s another problem SCOTUS has held that the 4th Amendment is satisfied if a law enforcement officer has probable cause to believe that a traffic violation has occurred and it s never gotten picky about whether the officer was exceeding his jurisdiction The 6th District agreed with all that on appeal but held that the stop violated the Ohio Constitution s analogue to the Fourth Amendment And that s the issue in Brown whether a traffic stop made without statutory jurisdiction or authority violates the protection against unreasonable searches and seizures afforded by Article I Section 14 of the Ohio Constitution The court s not writing on a clean slate here in fact it finds its 2003 decision in another State v Brown dispositive In that case the defendant was arrested for a minor misdemeanor Under state law there are a very few circumstances where an officer can arrest someone for minor misdemeanor and none were present in Brown s case That didn t do the defendant any good as far as the US Constitution is concerned because only a few years before that SCOTUS had upheld the arrest of a woman for a seat belt violation despite the fact that the officer lacked the statutory authority to arrest for that offense But the Ohio Supreme Court held that the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors and after weighing the government s interest in making the stop against the intrusion upon the individual s privacy decided that the Ohio Constitution had been violated So the outcome in Brown the Younger decides the outcome in Brown the Elder But as the dissent points out the slate might not be clean but it s a good bit muddier than the 5 2 majority admits In fact Brown I is a bit of an outlier in several cases before and after that one the Ohio Supreme Court treated the search and seizure provisions of the Ohio Constitution as being co extensive with the 4th Amendment Well that was then this is now There s no question that this week s decision gives independent force to the Ohio Constitution And not just for

    Original URL path: http://briefcase8.com/2015/06/new-life-for-the-ohio-constitution.html (2016-04-27)
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  • Crawford takes another beating at The Briefcase by Russ Bensing
    saying that that question had to be decided from the totality of the circumstances That continues apace in Clark where we learn that one of those circumstances doesn t need to be that there is indeed an emergency whether an ongoing emergency exists is simply one factor to be considered Another is the formality of the inquiry a police station interview is more likely to be found testimonial than on the scene questioning But the Court goes much further the Confrontation Clause does not bar every statement that satisfies the primary purpose test it does not prohibit the introduction of out of court statements that would have been admissible in a criminal case at the time of the founding This is dicta because the Court then easily concludes that the primary purpose of the teachers questioning the child was in the context of an ongoing emergency involving suspected child abuse But it s worrisome dicta nonetheless if Crawford is going to be unmoored from the primary purpose test and we re left with vague interpretations of what would have been admissible 250 years ago it s hard to see what future guidance Crawford will provide Government v non government agents One of the lingering questions in Crawford jurisprudence and one the Court has repeatedly ducked is whether statements to anyone other than police officers can be testimonial The Court ducks it again sort of declining to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment But it comes close Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testi monial than statements given to law enforcement officers It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police I think that statements made to say a social worker charged with investigating child abuse could still fall within Crawford but I m not nearly as sure about that as I was two weeks ago And then there s this Can statements by a child ever be regarded as testimonial The Court certainly doesn t duck that one Statements by very young children will rarely if ever implicate the Confrontation Clause That s because Few preschool students understand the details of our criminal justice system Rather research on chil dren s understanding of the legal system finds that young children have little understanding of prosecution Thus it is extremely unlikely that a 3 year old child in L P s posi tion would intend his statements to be a substitute for trial testimony It s hard to overstate the significance of this One of the issues the Court has also skirted has been whether the primary purpose of the questioning is to be viewed from the perspective of the questioner or the respondent Here the Court looks at it solely from the viewpoint of the child and

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  • What's Up in the 8th at The Briefcase by Russ Bensing
    law distinguishing between the situation where there s a pre conceived plan to kill the victim for example where he s killed execution style as opposed to the simple robbery gone wrong Simply having a firearm during the commission of a robbery and being prepared to use it does not evidence prior calculation and design In a bench trial the judge found that the robbers had planned to kill owner if he resisted but that s not enough the fact that they shot him when he didn t resist was This is largely academic White was also convicted of aggravated murder under the B section committing a purposeful killing while committing aggravated burglary White also appeals his sentence but we learn that he can t under RC 2953 08 D 3 a sentence for aggravated murder 20 25 or 30 to life or life without parole is not subject to appellate review State v Hill contains another lengthy discourse this time on whether the grand jury process was tainted to the degree that it warranted the dismissal of the indictment Hill was charged with a 20 year old rape but when the grand jury indicted him they only had the preliminary DNA results the final results weren t determined until ten days later after the statute of limitations had expired We learn that a court can exercise supervisory powers over a grand jury only to prevent fundamental fairness like racial discrimination in selection of jurors and uh well that s pretty much it Here Hill s simply arguing that the grand jury didn t have enough evidence to indict and that s not subject to judicial review The defendant in State v Lawshea also raises a constitutional argument that she was denied due process and a fair trial because of shoddy investigation by the police in failing to pursue leads regarding another possible suspect Unsurprisingly there s plenty of case law holding that sloppy police work does not violate a defendant s due process rights Unsurprisingly and unfortunately for defendants if this were a basis for reversal half the cases in Cleveland would get thrown out The result in State v Gaines is surprising At the plea hearing the judge told Gaines at plea that he had the constitutional right to remain silent and not to testify and no one could comment on the fact that he did not testify at trial and Gaines asks what that mean I don t have to testify at trial The judge then then told him that State would have burden of proving his guilt beyond a reasonable doubt and he wouldn t have any burden at all The panel holds that this exchange indicates Gaines was unclear as to the meaning of the right against self incrimination and since the judge responded with an explanation of burden of proof the record doesn t show that Gaines made a knowing intelligent and voluntary plea In fact Gaines question did indicate he understood the right

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