Call Me Back With a Warrant for My Smart Phone.

The recent decision in Riley v. California (2014), 573 U.S. ___ was a decision that really surprised criminal defense lawyers.  Therein, the United States Supreme Court ultimately held that a search warrant is necessary to inspect cellular and smart phones.  The case was actually two separate cases.  In Riley, defendant was arrested for expired tags and his smart phone recovered during the inventory search.  A warrantless search of the phone revealed a photograph of the defendant with a car that was suspected in a shooting.  Ultimately, defendant was charged with attempted murder.  In Wurie, defendant was arrested during a drug sale.  The warrantless inspection of the phone showed various calls from a telephone labeled “my house.”  The officers then traced the number to a residence and searched the residence to discovery crack cocaine, marijuana, and weapons.

The opinion is a decent review of the search incident to arrest exception to the Fourth Amendment warrant requirement.  Interesting, the Court noted that calling it a search incident to arrest “exception” is an understatement; “[i]ndeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”  Id., at p. 6.

The opinion then reviews what the Court describes as the trilogy of search incident to arrest cases, namely Chimel v. California, United States v. Robinson; and Arizona v. Gant in 2009.  The Court explained that Gant recognized that the exception is based on officer safety and evidence preservation.  Obviously a phone presents no safety concern, so the evidence preservation issue is the more relevant consideration.  In fact, the Court found that “[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer[.]”  Riley, at p. 10. The Court too noted that the information on the cell phone could not be readily destroyed either.  Id. p. 12.

The Court then began the analysis with “[a]bsent more percise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon and individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”  Riley, at p. 8, citing Wyoming v. Houghton (1999), 526 U.S. 295. The Court then engaged in a rather extensive discussion about the technology of smart phones.  The Court recognized that cell phones “place vast quantities of personal information literally in the hands of individuals.”  Id. The Court even makes reference to using a cell phone to search files stored remotely.

Although the Court would ultimately hold that a warrant is required to access the information – it would hint to law enforcement that it might argue the exigent circumstances exception to the warrant requirement in certain cases.  Almost out of an episode of the TV series 24, the Court hypothesized a situation where a suspect is texting an accomplice to detonate a bomb.  Nonetheless the Court clearly answers the question of what police must do before searching a cell phone – “get a warrant.”  Id. 28.

Surprise Prison Term for Violation of Post-Release Control.

PRC is what we used to call parole and it is a part of every felony sentence.  Here is how the Department of Corrections describes it, "post‑release control (PRC) is a period of supervision of an offender by the Adult Parole Authority following release from imprisonment that includes one or more post release control sanctions imposed by the Parole Board pursuant to ORC section 2967.28."  You can find a chart with the PRC terms at http://www.drc.ohio.gov/web/PRC.htm.

Here is the danger handing cases with a client who catches a new criminal case while on PRC: the Parole Authority can impose an administrative sanction for a violation of PRC conditions and the Court handling the new case can impose a separate term of imprisonment for the PRC violation.  This term of imprisonment is in addition to the prison time for the new criminal case.  So, what might seem like an easy felony plea bargain with some administrative PRC sanction, can very quickly become a case with increments of additional years in prison for the PRC violation.  

R.C. 2929.141 specifically provides: 

(1) In addition to any prison term for the new felony, impose a prison term for the post‑release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post‑release control for the earlier felony minus any time the person has spent under post‑release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post‑release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post‑release control violation shall terminate the period of post‑release control for the earlier felony.

(2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised Code for the violation that shall be served concurrently or consecutively, as specified by the court, with any community control sanctions for the new felony.

If you have an issue like this, look first to the underlying conviction which brought the PRC to determine whether the PRC imposed by the Parole Authority is lawful.  The Ohio Supreme Court held recently that a sentence that did not impose the correct term of post-release control was void, and thus, an escape conviction cannot be based on an invalid sentence. State v. Billiter (2012), 134 Ohio St.3d 103. Therein, the Billiter trial court advised him of the potential for three years PRC, when five years was mandatory.  When he completed his sentence the Parole Authority imposed five.  When he caught his new case, the trial court imposed a new PRC prison term.  The Ohio Supreme Court held that the PRC term was void and because he had completed his term, it could not be corrected. 

Merger of Allied Offenses can save the day.

In 2010, the Ohio Supreme Court revisited the definition and application of the allied offenses concept. In State v. Johnson, 2010-Ohio-6314, the Court reviewed the prior law from State v. Rance (1999), 85 Ohio St.3d 632, and concluded that the Rance standard was unworkable. The concept of "allied offenses of similar import" has its origins in the concept of merger and is codified in R.C. 2941.25. Do not underestimate its importance as the concept is designed to protect against a Double Jeopardy violation where a person is sentenced twice for what is in essence the same offense.

The Court went on to expressly overrule Rance. Impressively, the Court explained that the broad purpose of the allied offenses concept "ought not be watered down with artificial and academic equivocation regarding the similarities of the crimes. When 'in substance and effect but one offense has been committed,' the defendant may be convicted of only one offense." Id. para. 43. With that, here is precisely the test adopted by the Court:

[T]he question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.

If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., Aa single act, committed with a single state of mind.@ * * *

If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.

In addition to looking at the elements of the charges themselves, applying this Johnson test to the indicted offenses is critical to any defense preparation or plea negotiations.  If you fail to apply this test during plea negotiations, you and your client may accept a fools bargain.  Moreover, if you are planning a trial strategy, you may legitimately design a defense that leaves the Court with the conclusion that it is duty bound to merge any guilty counts. 

Although Johnson was a 2010 case, most courts of appeals have looked at it a few times.  Watch carefully in that your allied offenses analysis can fail if there is strong contextual evidence supporting a separate animus for each charge.  Black's Law defines animus as generally intention, design, or will and the Ohio Supreme Court has interpreted animus "to mean >purpose or, more properly, immediate motive,= and infers animus from the surrounding circumstances.@ State v. Shields, 2011BOhioB1912, & 16, quoting State v. Logan (1979), 60 Ohio St.2d 126, 131.  Animus is just a terrible term to use in the criminal context as the whole of criminal law and the underlying offenses themselves speak to intend and purpose.  There really is no remarkable case law providing any real guidance on the animus aspect of the analysis although it has been described as "[w]here an individual's immediate motive involves the commission of one offense, but in the course of committing that crime he must, A priori, [sic] commit another, then he may well possess but a single animus, and in that event may be convicted of only one crime.@ State v. Beverly, 2013‑Ohio‑1365.

Your Silence Can Be Used Against You.

I could swear I heard somewhere that a defendant has a right to remain silent and that the state cannot comment on the silence at trial. I could be wrong, but I swear I heard it somewhere.

On June 17, 2013, in Salinas v. Texas, the United States Supreme Court clarified for me. It held that the state could use at trial a defendant's failure to answer some questions where the defendant was not yet in custody and had answered some questions but refused to answer others. We know that the relevant provision in the Fifth Amendment reads that a defendant shall not "be compelled in any criminal case to be a witness against himself [.]" Prior to being in custody or Mirandized, Salinas answered some questions from police. When asked about ballistics testing, he remained silent. Texas argued at trial that this was evidence of guilt. Salinas argued that the comment violated his Fifth Amendment privilege not to be compelled to be a witness against himself.

Ultimately, the United States Supreme Court rejected this argument. The case is interesting in that the Court took the case to decide the question of the prosecution may use during its case-in-chief a defendant's assertion of the right to remain silent during a non-custodial interrogation. The Court though did not answer that question because it concluded that the Salinas had not invoked his privilege during the interrogation. (2013), 133 S.Ct. 2174. (Yep, mere silence is not enough to invoke the right to remain silent.)

The Court looked first at what it described as the long held opinion that those who desire the protection of the privilege, must claim it. Id. at 2179. The Court reasoned that this was necessary to ensure that the government is "put on notice when a witness intends to rely on the privilege[.]" (Nope, not answering a question is not enough notice.) In short and clear language, the Court held that "[b]efore petitioner could rely on the privilege against self-incrimination, he was required to invoke it."

Salinas is certainly complicated case law for criminal defense. Interesting though, remember that Salinas was not subject to a custodial interrogation. That is a critical fact that cannot be ignored.

Warrantless Blood Draw a "No-No" - U.S. Supreme Court in McNeely.

This one is hot off the presses and worth a read.  Missouri v. McNeely (2013), 133 S.Ct. 155 was issued by the United States Supreme Court just weeks ago on April 17, 2013.  Therein the high court found that a warrant is necessary to for a non-consensual blood draw for alcohol testing.  The Court looked carefully at the typical per se exigent circumstances justification for warrantless blood draws in O.V.I. cases.  The easiest way to look at the case was that it held that there is no such per se exigency just because blood alcohol dissipates naturally.  If you have one of these cases, remember that Ohio allows three hours for the blood draw - which is a whole lot of time to contact a judge and acquire a warrant.

R.C. 4511.191(A)(5)(a) provides "the officer shall advise the person at the time of the arrest that if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma."  The statute limits this warrantless blood draw to those O.V.I. offenses where "if the person if convicted would be required to be sentenced under division (G)(1)(c), (d), or (e) of section 4511.19 of the Revised Code."  Those sections under (G) are repeat offender sentencing provisions with (d) and (e) being sentencing for felony offenders.

That said, the Ohio warrantless forced draw provision is rather standardless and, in my mind, substantively identical to the Missouri statute in McNeely.  If you have one of these, look closely too at the department's standard operating procedures.  For instance, with the Ohio State Highway Patrol Lab, the manual - OSP 103.07 - allows a warrantless blood draw only "when it is not feasible to obtain a warrant, and with the approval of a supervisor."

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.