The Briefcase by Russ Bensing | Musings by an Ohio criminal lawyer

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


Dog sniffs - again!

The cop pulls you over for speeding.  He gets your license and registration, checks you for warrants, and gives you the ticket.  The whole thing takes ten minutes.  Just as he's giving you the ticket, another cruiser pulls up, with a drug dog.  Man's so-not-best-friend walks around the car, which takes about two minutes.  Have you been unreasonably detained?

Same scenario, except the cop holds up giving you the ticket for eight minutes, during which time the drug dog arrives.  Same question.

Same scenario, except the cop asks you all sorts of questions -- where are you coming from, where are you going to, you wouldn't know anything about the burglaries that have been happening around here, would you?  It takes twenty minutes to ask you this and get your driver's license information, and just before the officer gives you the ticket, the drug dog arrives.  Same question.

That's the question the Supreme Court has to answer in Rodriguez v. US.  From the looks and sounds of the oral argument last week, it may already have.

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What's Up in the 8th

The bodies are stacking up like cordwood in Cleveland; the seven cases decided by the 8th District last week involved two shootings and an attempted strangling.  A Batson case gets fine-tuned, an interesting decision on expungement, and we take a behind-the-scenes look at how the judges on the court craft their opinions.

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Case Update

One of the things we learned last week is that there is a Federal statute prohibiting making "a harangue or oration, or uttering loud, threatening, or abusive language in the Supreme Court building."  No, it wasn't Antonin Scalia who was the target of the law because of his latest biting dissent, but eight individuals belonging to 99Rise, who stood up in the gallery on Wednesday just after the justices took their seat and loudly declaimed the Court's 2010 decision in Citizens United, which removed limits on campaign donations by corporations and thus provided another waypoint on our glide path to plutocracy. 

The Court did manage to hand down two decisions last week, of no particular interest to me or presumably you (multidistrict litigation and whistleblower protections), but it also heard argument in yet another dog-sniff Fourth Amendment case, Rodriguez v. US.  We'll talk about that on Wednesday.  It also agreed to hear a challenge to Oklahoma's three-drug protocol the state now uses for executions.  Four inmates had contested the procedure, and two weeks ago the Court, by a 5-4 vote, refused a stay.  One inmate was executed, and the next is scheduled to be killed on Thursday.  No stay has yet been granted.  Well, that's one way to moot a case.

The Ohio Supreme Court was busy, too, coming down with a big case on the use of statement a defendant makes while being examined for incompetency or evaluated for his NGRI plea.  We'll talk about that one on Thursday. 

We haven't checked out the courts of appeals in a while, so let's do that now.

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Forfeiture reform (?)

Demetrius Harris can tell you all about "adoptive forfeiture" and "equitable sharing." Back in May 2010, Mayfield Heights cops stopped Harris' car and found $15,000 in a paper bag on the front seat.  They turned the money over to the DEA.  Harris filed a replevin action against the city seeking return of the money, but the trial court granted summary judgment to the city, and the 8th District affirmed

Here's how it works.  The city had no possibility of retaining the funds under Ohio's forfeiture law, because it would have been required to prove that the funds had been "involved in the offense," and Harris was only charged with driving under suspension.  The Federal forfeiture laws are much less demanding; basically, the money is forfeited unless the defendant contests it, and if he does he has the burden of proving that it wasn't contraband.  (As a result of those hurdles, about 80% of Federal forfeitures go uncontested.)  And under Federal law, a Federal agency can accept any items that were seized by a state or local agency, at which point fiction is created that the Feds were the ones to have received it.  That's what happened to Harris:  the court held that the city no longer had the money, the Feds did.

That's where equitable sharing comes in:  the Feds will return about 80% of the money "seized" in that fashion to the state and local agencies.  So the City of Mayfield Heights police department, which couldn't have taken a dime of Harris' money under state law, got about $12,000 of it.

Last week, Attorney General Eric Holder put an end to that. 


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Mistakes of law and the 4th Amendment

One of the first oral arguments in the Supreme Court's 2015 term was Heien v. North Carolina.  The Court handed down its decision a month ago ("Gosh, Russ, why are you just now getting around to writing about?"  "Shut up," he explained), and when I wrote about the oral argument, I said "I'd expect a decision upholding the search, but on narrow grounds.  Frankly, I think that's the best we can hope for."  Well, that's pretty much exactly what we got.  Let's take a look.

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What's Up in the 8th

So when is an encounter consensual?  No, I'm not talking about my long-ago dating life, I'm talking about when The Man comes up to you on the street and starts asking questions.  The 8th District handled two of those this past week, with different results.  That, and an extended discussion (again) of allied offenses, are worth a look.

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Case Update - Supreme Court Edition

The big news from SCOTUS this week was its agreement to decide the issue on same-sex marriage.  If this were a blog devoted to social issues of national import, we'd discuss it at length, but it's not, so I'll direct you instead to SCOTUSblog's first page, where you can parse through the issues at your leisure.  Since this blog is about criminal law, we'll focus on the decision last week in Jennings v. Stephens, and the argument in Mellouli v. Holder.

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Thursday Roundup

A different definition of "gun nut."  In the wake of District of Columbia v. Heller and McDonald v. Chicago, the recent SCOTUS decisions holding that the 2nd Amendment guarantees an individual right to bear arms, rather than a collective one, a number of commentators, including Your Faithful Correspondent, anticipated a wave of cases striking down gun laws as being overly restrictive, and legal debates as to whether any law infringing on gun rights had to be subjected to "strict scrutiny," the same as, for example, a law impinging on First Amendment rights.  That didn't happen.

Until maybe now.  Three weeks ago, in Tyler v. Hillsdale County Sheriff's Department, the 6th Circuit struck down a Federal law which prohibited 73-year-old Clifford Tyler from possessing a gun because he'd involuntarily spent a short time in a mental institution thirty years ago.  The court did apply the strict scrutiny test, even though one of the judges acknowledged that the law would've flunked the less demanding heightened scrutiny test.   

This is the first time a Federal court has applied strict scrutiny, or struck down a Federal gun statute post-Heller, and it raises some interesting questions, not only about Federal gun laws but state ones as well.  Giving a friend a joint is a fourth degree misdemeanor in Ohio, but conviction of that will disable you from possessing a gun for the rest of your life, and doing so is a third degree felony.  Would that survive strict scrutiny? 

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Recent Entries

  • January 28, 2015
    Dog sniffs - again!
    The Supreme Court tries to figure out how long the cops can delay giving a ticket so they can bring a drug dog to the scene
  • January 27, 2015
    What's Up in the 8th
    An interesting argument on equal protection, and an interesting argument on consecutive sentences. Interested yet?
  • January 26, 2015
    Case Update
    Uproar in SCOTUS, a couple of appellate decisions on searches, and a lecture on Anders briefs
  • January 23, 2015
    Forfeiture reform (?)
    How far does AG Eric Holder's new policy on forfeiture go?
  • January 22, 2015
    Mistakes of law and the 4th Amendment
    When is a brake light a brake light?