Ohio Criminal Appeals Lawyer Blog

Today the Supreme Court of the United States held that attaching a GPS device to a vehicle and using that GPS device to monitor the movements of the vehicle constitutes a "search" under the Fourth Amendment. Read the decision in United States v. Jones, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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"The state is the party with the burden to demonstrate in the case of warrantless police stops that the police officer had reasonable suspicion for the stop. Terry v. Ohio (1968), 392 U.S. 1, 21." A Columbiana County Defendant sufficiently put the State on notice that he was challenging the initial stop at the suppression hearing. So the state failed to meet its burden to show that the stop was valid because it failed to present any evidence to justify the stop. The Court of Appeals for the Seventh Appellate District ruled that any evidence found as a result of the stop should have been suppressed as you can read in State v. Burnette, 2011-Ohio-6400, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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An auto dealer can use a "dealer plate" on a vehicle when the vehicle is "being utilized by dealer" pursuant to R.C. 4503.30(A). A Dayton Police Officer stopped a vehicle simply because it was 8:30 at night, it appeared to be occupied only by the driver, and it had a "dealer plate" on the back of the vehicle. The Second District Court of Appeals ruled that the officer's stop of the vehicle "was not supported by a reasonable and articulable suspicion of criminal activity." Sure the officer smelled marijuana when he approached the vehicle and eventually found drugs that resulted in a charge for a fifth degree felony, but an officer's conduct is restricted by the Fourth Amendment to the Constitution of the United States which prohibits unreasonable searches and seizures. Stopping a car that has a dealer plate and one occupant who is driving the car at 8:30 PM is unreasonable as you can read in State v. Williams, 2011-Ohio-5807, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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Police who stopped a Cuyahoga County man did not have the "articulable, reasonable
suspicion that [he] was engaged in criminal activity" required by the Fourth Amendment. So the prosecution argued that the police were just engaging the man in a "consensual encounter" when they pulled up to him and lit up their red and blue flashing lights.

The Eighth District Court of Appeals for Cuyahoga County decided "[w]hile there may be limited circumstances where the activation of police lights may not rise to the level of a stop ... we find that in most situations, as here, that is not the case." The Court wrote "[w]hen a police officer pulls behind or beside a parked vehicle and activates his or her flashing lights, it is clearly a seizure within the meaning of the Fourth Amendment. The person inside the vehicle understands that he or she is not free to simply pull away." Read the decision in State v. Tyrone Lynch, 2011-Ohio-5502, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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Police love drug dogs. Canines can be used to sniff out contraband on your person, in your luggage, or in your vehicle. And the great thing for the cops is that they don't have to worry about your Constitutional Rights with a drug dog. Why? Because the fact that the canine is sniffing around you or your luggage or your vehicle does not amount to a "search" and so the Fourth Amendment is not implicated.

When police stop you in your vehicle for some legitimate purpose, they can have a drug dog walk around your stopped vehicle as an extra bonus. If the dog "alerts," the officer has probable cause to search your car. But the police cannot make you stay there until their drug dog arrives on the scene. The dog has to do his thing before the cop is done with dealing with whatever traffic violation that caused the stop in the first place.

A Champaign County man was stopped for speeding in Goshen Park. The traffic stop would normally take about fifteen minutes, but the K-9 unit did not get there for almost thirty minutes. The drug dog indicated that there were drugs in the car and heroin was found on the rear floor. The man filed a motion to suppress and lost so he pled "no contest" to the drug charge and appealed.

The Second District Court of Appeals for Champaign County determined there was no justifiable reason to hold the defendant at the scene of the traffic stop past the time it took to write him a ticket for speeding. The defendant was being held at the scene illegally when the drug dog arrived and so the drugs that were found should have been suppressed. Read the decision in State v. Haynes, 2011-Ohio-5020, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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A Montgomery County Sherriff's Deputy pulled over a woman in the area of Salem and Falmouth in Dayton, Ohio, because she made a sudden lane change without signaling and then she was tailgating another vehicle. The Deputy gave her tickets for the offenses and when he handed her the tickets and her license he asked her if he could search her car. He found contraband, she lost her motion to suppress, she pleaded "no contest" and appealed to the Second District Court of Appeals for Montgomery County. The Court of Appeals found the Deputy's timing in asking for consent was "troubling." The Deputy seamlessly made the transition from the detention to a consensual exchange. The Court of Appeals examined the totality of the circumstances and determined that the driver's "consent" was merely a submission "to a claim of lawful authority." Read the decision in State v. Ferrante, 2011-Ohio-4870, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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The Fifth District Court of Appeals for Fairfield County just decided that it is unconstitutional for the government to attach a GPS unit to a vehicle without a warrant or in the absence of exigent circumstances. The Court of Appeals determined that placing a GPS unit on a vehicle violates a legitimate privacy interest. It determined that placing the GPS unit on a vehicle is a "search" for purposes of the Fourth Amendment to the Constitution of the United States. The Court held that "[b]ecause the procedure employed permitted surveillance of the movements of the appellant constantly for an indefinite period of time without any exigent circumstances or showing of probable cause, it authorized an unreasonable search, and, therefore, was invalid." State v. David White, Fairfield County Appeal No. 2010-CA-60, 2011-Ohio-4526.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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The State appealed after a Cuyahoga County trial judge granted a defendant's motion to suppress evidence found on his person after police stopped a van in which he was riding. Police stopped the van because an officer saw a man walk up to the van, make "hand to hand contact" with someone in the van, and then walk away. The police had a hunch a drug transaction had just taken place and they stopped the van. But it takes more than a hunch to justify a stop of a vehicle. The trial judge did not believe the officer could see what was exchanged or that anything was exchanged between the men. The officer testified that there was a "hand to hand" transaction, but labeling behavior this way is not enough to justify a stop for Fourth Amendment purposes. The trial judge found, and the Court of Appeals agreed, that the officer lacked "specific and articulable facts to support his reasonable belief that a crime may be occurring." The stop and search violated the Fourth Amendment and the Court of Appeals affirmed the trial court's decision to grant the defendant's motion to suppress. Read the decision in State v. Carmichael, 2011-Ohio-2921, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

A Dayton Police Officer stopped a vehicle at the corner of Salem Avenue and Philadelphia Avenue in the general area of Good Samaritan Hospital, because the officer thought the person driving the vehicle may be an unlicensed driver. The officer stopped the car to find out. Was this legal?

Police may stop a vehicle if they have a reasonable and articulable suspicion that an unlicensed driver is operating the vehicle. But what if an officer is not sure if a vehicle is being driven by its licensed owner or his unlicensed friend? Can police stop the vehicle to find out who is driving? No, says the Second District Court of Appeals for Montgomery County. When an officer cannot tell if the driver is the licensed registered owner or his unlicensed friend, the reasonable inference to draw is that it is the licensed registered owner.

The stop was "impermissible" so any contraband found as a result of the stop, along with any statements made to the police, should have been suppressed by the trial court. Read the decision here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

Felonies are not usually witnessed by police officers. Sometimes, but not usually. Traffic stops can lead to more than tickets for simple traffic violations and police know that. It is called "good police work." The vehicle you are driving or riding in is pulled over. Then the Officer sees, hears, or smells something and the next thing you know one or all of the occupants of the vehicle are handcuffed and seated in the back of police cars to face eventual felony charges.

Police can make the initial stop for all sorts of reasons like:

Following too closely as you can read by clicking here, 2009-Ohio-5199.
(The defendant ended up charged with possession and trafficking of drugs after her friend was following another vehicle too closely, the passenger and driver gave the officer different answers to questions, the passenger was intoxicated, a K-9 unit was called out, the dog alerted on the vehicle giving the officer probable cause to search, etc. It all started with following too closely.)

Failing to use your turn signal as you can read by clicking here 2009-Ohio-4897, or here 2009-Ohio-994, when either turning or switching lanes. In 2009-Ohio-559 the failure to use the turn signal when turning into someone's driveway led to a canine sniff and an alert on materials to make meth which ultimately led to a three year prison term.

A Perrysburg Township cop saw something he found really suspicious back in March of 2007 - a woman driving north on 75 with her two kids in the car while she stared straight ahead with her hands placed at the 8 and 4 positions as you are taught at driving school. She was traveling at 60 miles an hour and the speed limit was 65. Straight ahead, of course, would be the road in front of her and she was the driver. The cop also saw an adult male in the car who was also staring straight ahead. So of course the cop followed them for several miles. Eventually the female driver caught up to a semi going about 55 and she got up to within two car lengths before she started to pass. Oops, too close and that gave the cop probable cause to conduct a traffic stop.

But then the cop continued fishing. He separated the driver from the adult male and asked them questions wholly unrelated to the offense of following too closely. Where you going? Why? That sort of thing. The answers were not identical which the cop also found suspicious. The Sixth District Court of Appeals noted that this cop would have found identical answers to be suspicious too. This cop also found an affirmative response to the question, "do you mind if I search your car?" to be a consent to search. After searching, the cop requested a canine which took 19 minutes to arrive. The dog hit on the car and marijuana was found in the floor underneath the seating. The adult male was eventually sentenced to a total of six years in prison.

Not so fast, says the Sixth District Court of Appeals. The Court found the cop was fishing and prolonged the stop in order to continue fishing. The cop improperly prolonged the length of the stop in violation of the Fourth Amendment to the Constitution of the United States and Article I, Section 14 of the Ohio Constitution. The court of appeals ruled the trial court should have granted the appellant's motion to suppress the evidence as you can read by clicking here.

The Ohio Supreme Court said yes in State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10.  But the Ohio Supreme Court said that the officer has to be "a person qualified to recognize the odor."  The Ohio Supreme Court said an officer is qualified if he is "trained and experienced in the detection of marijuana."  If he is, the search is reasonable under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

This week, Ohio's Fifth District Court of Appeals said a loaded gun found in a car should have been suppressed where an officer searched the car only because he claimed he smelled marijuana.  State v. Birdsong, 2009-Ohio-1859.  While the officer testified at the suppression hearing that there was a strong distinct odor of burnt marijuana, he did not testify about any training or experience he had in detecting marijuana.  It is unclear from the Court's opinion whether he lacked such training or if the prosecutor just failed to ask.  But the officer never found any drugs or drug paraphernalia.

New York v. Belton, 453 U.S. 454, had been read to allow a complete search of the passenger compartment of an automobile as a reasonable search under the Fourth Amendment whenever any occupant of the car was arrested for any reason. This was true even if that occupant was secured in the back of a police car before the search was conducted. State v. Murrell, 94 Ohio St.3d 489, 2002-Ohio-1483. But not anymore!

Today in Arizona v. Gant, the SCOTUS reigned in Belton to allow an unlimited search of the passenger compartment of a car if an occupant of the car was arrested in only two circumstances.  One is if the occupant still has access to the passenger compartment of the car (to prevent the occupant from getting a weapon or hiding evidence).  Two is if the officers have a reasonable belief that evidence might be found in the car that relates to the reason the occupant was arrested (for example, a search for drugs if the occupant was arrested for drug dealing from the car).

Ohio's Second District Court of Appeals recently struggled with this very issue.  In State v. Williams, 2009-Ohio-1627, the Second District said it was bound to follow the Ohio Supreme Court's interpretation of Belton and allow a search incident to the arrest of a recent occupant of a car who had an outstanding warrant for his arrest (the car was stopped for littering).  Today's decision by the Ohio Supreme Court appears to give Williams solid grounds for an appeal to the Ohio Supreme Court.