New Ohio Expungement Bill Creates Opportunities.

S.B 337 was effective September 28, 2012 and expanded the definition of which offenders are eligible for expungement in Ohio.  When preparing for a recent presentation, a variety of complications in the bill became apparent. And, some of these complications may create some additional (possibly unanticipated) opportunities for some clients.

The provision that define whom is an eligible offender for purposes of expungement was revised as follows:

(A) "First Eligible offender" means anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction. When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction[.]"

This language in the two misdemeanor conviction exception "if the convictions are not of the same offense" is really rather inartful.  "Of the same offense" is candidly not a term of criminal law art.  The very next sentence uses the better language: "two or more convictions result from or are connected with the same act[.]"  "Course of criminal conduct" is used throughout criminal law, e.g. in the venue provisions in R.C. 2901.12, the auto theft provisions in R.C. 4549.31 and even in the aggravated murder specifications in R.C. 2929.04.  It would have been easy enough for the legislature to use this language, instead of the reference to "of the same offense." 

Because it did not use this artful language, there is certainly a colorable argument that expungment is available for defendants whom have had multiple misdemeanor convictions so long as they are for "the same offense," e.g. multiple convictions for theft even if committed at different times - say years apart and with different victims.  This is all the more colorable an argument considering that the case law is clear that the expungment statute must be liberally construed and the relief must be liberally granted.   State v. Hilbert (2001), 145 Ohio App.3d 824, 828.

Remember too that the R.C. 2953.31(A) also provides that when two or more convictions result from the same act or occur at the same time, they shall constitute one offense.  Hence, it easy to imagine a situation where a person with a great number of convictions may still nonetheless be eligible. Look also to see if any of the prior convictions may have been unclassified misdemeanors and amount to minor misdemeanors as defined in R.C. 2901.02(G).  Such minor misdemeanors are not counted as convictions per the express language of R.C. 2953.31.

Interestingly too, with this expansion of eligibility, the O.V.I. complication created in State v.Sandlin, may be removed.  1999-Ohio-147.  In Sandlin, the defendant was convicted of aggravated vehicular assault and an underlying DUI.  He later applied to seal his aggravated vehicular assault charge.  Although they were both out of the same offense, the Ohio Supreme Court concluded that the because the expungement statute expressly provides that there is no expungement for a DUI offense, Sandlin could never be a first offender.  Now that the statute allows persons with a variety of convictions to be eligible offenders, the reasoning of the Court in Sandlin should fail.

There are all sorts of other openings in the new law which might create opportunities for your client.  If you have a unique fact pattern come across your desk, give R.C. 2953.31 a quick read and see what arguments might reveal themselves.

GPS Surveillance Violated Fourth Amendment.

In what some might say was an unexpected decision, the United States Supreme Court held last week that a GPS device attached to a vehicle and used to monitor the vehicle’s movements violated the Fourth Amendments prohibition of unreasonable searches.  Many were expecting that the conservative majority would come down on the other side of the issue.  The opinion does have two alarming hints that should be watched closely. 

First, Justice Alito’s concurrence did introduce the novel thought that “whether a search has occurred depends on the nature of the crime being investigated.”  U.S. v. Jones, 565 U.S. _____ (2012).  Alito’s concurrence also over-emphasized the thought that the Fourth Amendment only protects against meaningful interference with possessory interests.”  Id. at concurrence p. 2. He reasoned that the installation of the GPS device was so small that no violation had occurred.  Fortunately, the majority did not adopt this reasoning although three other justices did.

Second, the Court would not entertain the government’s alternative argument that even if a search did occur, it was reasonable within the meaning of the Fourth Amendment.  The Court refused to consider the argument as it was not raised in the lower courts – but the Court did not outright reject the proposition.

In Jones, the FBI used a variety of surveillance techniques while investigating alleged drug trafficking.  In addition to visual surveillance, hidden cameras, pen register, and wiretaps, the Federal District Court authorized the installation within 10 days of a GPS tracking device on the suspect’s jeep.  On the 11^th day, the device was installed.  It recorded and transmitted data for the next 28 days.

The fact that the warrant was issued was ignored for purposes of the opinion as the government stipulate that the officers did not comply with the terms of the warrant.  Hence the issue before the Court was whether the warrantless use of the GPS device violated the Fourth Amendment.  In a sense though, the opinion is not all that powerful as the trial court had authorized the warrant.  Had the officers complied with the terms of the warrant, there would have been no meaningful Fourth Amendment challenge.

That said, the Court began its opinion with the presumption that the Fourth Amendment analysis is inherently tied to common law trespass.  The presumption should not be ignored by criminal defense practitioners whom should understand that this foundation was expanded in Katz v. United States wherein the United States Supreme Court emphasized that the Fourth Amendment is designed to protect persons, not places.  From there, the analysis was redefined to protect a person’s “reasonable expectation of privacy.”  Hence, be warned that the return to reemphasize the common law trespass, could create slippery slope to deteriorate the Amendment’s protections – the opinion does reference that the reasonable expectation of privacy analysis added to, not substituted for the trespass premise.

The United States Supreme Court then reasoned that the Fourth Amendment  was meant to address government trespass on particular areas.  The Amendment itself uses the word “effect.”  Ultimately, the jeep was just such an “effect” meant to be protected by the Fourth Amendment.  The installation without a warrant violated the Amendment.  That said, Juxtaposing the various concurring opinions and the different understanding of the Fourth Amendment protections should create discomfort.