 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: AIRPORT STOP; INVESTIGATORY SEARCH; CONSENT; DOG FAILS TO ALERT. State v Clark, No. 18314 (2d Dist. Ct. Apps., Montgomery Co., 11-03-2000). Willie Clark arrived in Houston on a plane from Cleveland. He appeared nervous, as he carried a small bag to the baggage claim area but claimed no baggage. He went outside, paced around, then approached a taxi. Officer Patti Matson, of the Houston Police department, had been watching Mr. Clark since he had deplaned. When she spoke to him outside the airport, he said he had come from Columbus to visit friends. However, his ticket had been purchased the day before in Dayton for over $1,000. Although he refused to name his friends, Mr. Clark allowed Officer Matson to search his bag. Finding only clean underwear in the bag, Officer Matson allowed Mr. Clark to leave. The Officer discovered, however, that Mr. Clark had booked a return flight the next day. When the Officer saw Mr. Clark the next day, he checked a new suitcase. He was still nervous. Officer Matson telephoned the Dayton Police. An Officer and a drug-sniffing dog awaited Mr. Clark's plane. The dog failed to alert to Mr. Clark's suitcase. The officer testified, however, that drugs could be packaged in a way that fooled the dog. Dayton Police Officer Bolinger had learned that Mr. Clark had a record, including arrests for possessing drugs. When the officer questioned Mr. Clark about the suitcase, he was told that Mr. Clark did not know its contents. Officer Bolinger told Clark that he would have to go with him to the airport police office. The officer read the Miranda warnings to Mr. Clark. The officer then told Mr. Clark that he could consent to the officer's searching the suitcase or the officer could get a warrant. Clark consented. The officer found cocaine wrapped in cellophane and dryer sheets. Having been charged with possession of cocaine, Clark filed a motion to suppress evidence. The court granted the motion and the state appealed. The Montgomery County Court of Appeals distinguished Florida v Royer (1983) 460 U.S. 491 because Royer was going and Clark was coming. Because the officer took Royer's ticket and driver's license, the court said, the officers interfered more with his movement. Appellant Clark was in no danger of missing his flight, having already arrived at his destination. Therefore, the Montgomery County Court concluded, the investigatory stop was not an arrest. The trial court had held that the officer lacked a reasonable suspicion to investigate Clark because the dog failed to alert. The Montgomery County Court rejected that idea. Although a dog's alerting, the court said, establishes probable cause, a dog's failing to alert does not negate probable cause. Finally, the trial court had said that the consent was invalid because 1) the investigatory stop was invalid and 2) the officer threatened to get a warrant. If an officer tells a suspect that the officer will obtain a warrant if the suspect fails to consent, the officer must be correct in his assessment that probable cause exists to obtain a warrant. The Montgomery County Court of Appeals held that the officer had probable cause that would have supported a search warrant had the officer sought a warrant. Therefore, the court said, Clark's consent was voluntary. The court reversed and remanded for trial.
SEARCH AND SEIZURE: USING A FLASHLIGHT IS NOT A "SEARCH." State v Reaves, No. 18302, (2d Dist. Ct. Apps., Montgomery Co., 11-03-2000). The state appealed from the trial court's granting the defendant=s motion to suppress evidence. At 3:30 a.m., a Dayton police officer, while patrolling a high - crime area, saw Frank Reaves driving a pick-up truck. Reaves turned without using a turn signal. After the officer caused Reaves to stop his truck, the officer saw Reaves bend down as if putting something under his seat. Afraid Reaves might have a gun, the officer called for back-up. Two other officers arrived immediately. The back-up officers placed Reaves and his passenger in their cruisers. The first officer shined a flashlight under the driver's seat. He found a loaded .38 caliber pistol. Having been charged with carrying a concealed weapon, the defendant filed a motion to suppress evidence of the weapon. Finding that using a flashlight was a "search", the trial court granted the defendant's motion. The state appealed to the Montgomery County Court of Appeals, which reversed. Under the circumstances, the appellate court said, the officer reasonably believed there may be a gun under the seat. Before allowing Reaves to return to his truck, the officer reasonably acted to protect himself. Finally, the appellate court said that using a flashlight is not a search. The court reversed and remanded for trial. [Ed. Note: Flashlights, amplifiers, and other "sense-enhancers" have long been recognized to be permissible aids to officers. See 59 A. L. R. 5th 615, Observation Through Binoculars as Constituting Unreasonable Search (The title is misleading, as most cases find using binoculars acceptable) and United States v. Dunn (1987) 480 U. S. 294 for using flashlights]. EXPERTS: EXPERT TESTIMONY REQUIRED TO ESTABLISH THAT SOCIAL SECURITY CARD AND GREEN CARD FORGED; COURT NEED NOT SPECIFICALLY FIND THAT WITNESS IS AN EXPERT. State v Rangel, No. C-000013 (1st Dist. Ct. Apps., Hamilton Co., 09-29-2000). Antonio Rangel, a Mexican citizen, applied for a driver's license. As identification, he presented a social security card and a resident-alien card. The clerk, Rae Jean Whitaker, thought the cards were forged and notified her supervisor, Sandra Scott. Ms. Scott called the police. Appellant was charged with falsification under R. C. 2921.13(A)(3), a misdemeanor. At Rangel's trial in municipal court, both women testified they believed the cards were forgeries because Rangel's picture did not cover the entire seal as it should have done and the social security card did not have raised pillars, ink dots, or perforated edges. The defendant objected to their testimony. Although the court did not declare the women to be experts, the court admitted their testimony. The defendant was convicted and he appealed. In a 2-1 decision, the Hamilton County Court of Appeals affirmed. The majority held that expert testimony was necessary to show that the cards were forged. Although the court held that Ms. Whitaker had insufficient experience and training to be an expert, the court held that Ms. Scott, based on her greater experience and training, qualified as an expert. The court also held that a trial court need not specifically rule that a witness is an expert. The dissent believed that neither woman had sufficient experience and training to qualify as an expert. The court affirmed the conviction. SPEEDY TRIAL: POST RELEASE CONTROL HOLDER TOLLS TIME EVEN IF POST RELEASE CONTROL INVALID. State v Kurston, No. 77102 (8th Dist. Ct. Apps., Cuyahoga Co., 11-02-2000). Having crashed his car during a high-speed chase, William Kurston was charged in Municipal Court with failing to comply with an order of an officer to stop, driving under the influence, driving with an expired license, failing to have a rear license plate illumination, and resisting arrest. The Cuyahoga County Grand Jury indicted Kurston for failing to comply with the officer's signal to stop. The defendant filed a motion to dismiss for failing to provide him a speedy trail. At a pretrial conference, a representative of the Ohio Adult Parole Authority told the court that a post-release control holder had been placed on Kurston in Athens County. At the hearing on the speedy trial motion the assistant superintendent of records of the Cuyahoga County Sheriff's Department testified that Athens County issued a post-release control holder on May 25, 1999. Kurston had been charged with a felony driving under the influence. Having violated his community control, he was sentenced to a prison term of one year. This was an erroneous sentence, as a first-time DUI felony offender may be sentenced to local incarceration only. Kurston was placed on post-release control. After the instant offense, the Athens County Court filed a post-release control holder. The trial judge accepted the defendant's argument that the post-release control holder failed to convert the 90 day time period to 270 day time period in which to bring the defendant to trial. As the prison term was invalid, the trial court reasoned, the post-release control was also invalid. The court granted the defendant's motion to dismiss the indictment and the state appealed. The Cuyahoga County Court of Appeals reversed, saying the following: However, the issue before us is not the validity of the Athens County Court's order, but the validity of the post-release control holder placed on Kurston. O A C 5120:1-1-31(A) provides: The department of rehabilitation and correction shall have the authority to file a detainer against an offender or otherwise cause the arrest of an offender by the issuance of a detainer whenever there is reasonable cause to believe that such offender has violated or is about to violate any of the terms or conditions of his supervision or sanction and commits an over act toward such violation." In this case, Kurston was on post-release control at the time of his arrest in the instant case. As of May 25, 1999, the date the parole holder was issued, Kurston had been arrested and charged with fleeing and eluding, driving under the influence, driving with and expired license, no rear license plate illumination, and resisting arrest. Under the circumstances, APA had reasonable cause to believe that Kurston's arrest violated the conditions of his post-release control. Consequently, the post-release control holder was properly issued and should have been applied to toll the statutory speedy trial time period in this case. The court remanded the case for trial. APPEAL: APP. R. 26 (B) APPLICATIONS TO REOPEN; AVAILABLE FOR DIRECT APPEAL OF CONVICTION ONLY State v McGuire, No. 99AP-982 (10th Dist. Ct. Apps., Franklin Co., 11-09-2000). James McGuire and some of his friends became involved in a tussle with another group of young men. Being out-numbered, McGuire ran away. Although some people chased him for a while, they got bored and went away. McGuire's friends came out from their positions of relative safety and were preparing to get into their cars and leave. McGuire, however, had gone to a neighbor's house and taken a shotgun. Because it was dark, McGuire failed to recognize his friends, including Charles Scott, standing in the street. He could see only that some people (two young men and two young women, all of whom were life-long friends of McGuire's) were in the street. McGuire fired the shotgun three times, killing Charles Scott. A jury convicted McGuire of involuntary manslaughter in the course of a misdemeanor. McGuire, however, failed to appreciate his windfall. He has filed innumerable appeals, motions, and petitions. In the instant case, McGuire filed an application to reopen the appeal from the trial court's denying his motion for new trial. The appellate court denied the application, holding that App. R. 26(B) is available to reopen an "appeal from the judgment of conviction and sentence" only.
|
