Monthly Archives: July 2013

No Probable Cause, No Problem Says Second District Court of Appeals

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If you have ever considered manufacturing your own fireworks at your residence (and who hasn’t, right?), you may want to think again.  In a recent decision by the Second District Court of Appeals, Dayton Police officers were permitted to enter a home’s detached garage and observe its occupants making fireworks inside without the benefit of a warrant, and without even determining whether officers had probable cause to believe that a crime was being committed.

In State v. Griffin, the police had received an anonymous tip that two individuals at Griffin’s residence were “making bombs and selling them to neighborhood kids.”  Police were not immediately dispatched to the home. Rather the call was placed on a list of “medium to lower priority calls” that is logged into police cruiser computers.  This list is evidently maintained and updated every so often so that when police have the time and opportunity to investigate, they can choose then do so.  Leaving for a second the entire series of questions surrounding the fact that giving bombs to children was an “medium to low priority” for Dayton Police, let’s discuss why officers were allowed to enter the detached garage on nothing more than the anonymous tip and some observations they were able to make from the driveway.

Two different officers independently responded to the call and arrived simultaneously at Griffin’s home.  The officers testified they could view from the street that someone was in the garage.  The garage door was apparently open “about waist high.” The officers simply walked up the driveway and, as they approached the garage, claimed to have observed a couch, several tables with mixing bowls, gun powder on the tables and the floor, as well as someone walking back and forth between the tables.   The officers immediately entered the garage and arrested the two individuals for the illegal manufacture of fireworks.

It is undisputed that the officers did not have a warrant, based upon probable cause, to search the garage. Nor did the officers receive consent to enter prior to making contact with Griffin.  In overruling Griffin’s motion to suppress evidence, the trial court determined that once officers observed gunpowder strewn across the tables, the officers had probable cause to enter.  Apparently, viewing gun power was enough for the trial court to find probable cause existed that a crime was being committed – the illegal manufacture of fireworks.  Moreover, the officers did not need to first obtain a warrant because an emergency existed which excused the general requirement that searches be performed only upon issuance of a warrant from a neutral and detached magistrate.

The general rule is that a search of a home without a warrant, even if based upon probable cause that crime is being committed, is per se unreasonable and, therefore, unconstitutional under the 4th Amendment.  However, one of the several exceptions to the warrant requirement is “exigent circumstances” or when an emergency exists where it is reasonable for the officers to immediate perform the search.  Nonetheless, there must still be probable cause that a crime or evidence of crime is located within the home to dispense with a warrant.

In sustaining the trial court’s ruling, the Appellate court did not base its decision on the fact that the officers had probable cause of a crime. In fact, the Appellate Court did not even reach that decision. And for good reason, it is highly unlikely that having gun powder and mixing bowls in your garage is evidence of a crime.  Instead, the appellate court ruled the search constitutional based upon another exception to the warrant requirement, the “community caretaking/emergency aid exception.”  Under this doctrine, officers are privileged to enter a home without a warrant or probable cause if (1) police have reasonable grounds to believe that there was an immediate need to protect the lives or property of themselves or others; (2) the circumstances, as viewed objectively, justify the warrantless entry; and (3) there is a reasonable basis, short of probable cause, to associate the place to be searched with an emergency.  The anonymous tip, corroborated by the officer observations once on the property, were enough for the court to find the community caretaking exception applied.

The Court states in its opinion that “[while] we may question whether, before the officers entered the garage, there was probable cause to believe a crime was being committed … such determination is not controlling in an analysis of the community caretaking exception to the Fourth Amendment.”  The panel goes on to find that under the particular circumstances presented in this case, officers reasonably entered the garage to ensure that the apparent explosives did not pose an immediate danger to the officers and others in the area.

The Court was quick to emphasize, however, that it was not insinuating through its holding that every corroborated report of a dangerous weapon or ordinance is sufficient to justify a warrantless entry into a home, citing State v. Boyd (a case in which our firm was responsible for the appeal and successfully established that the warrantless search of a home and seizure of a gun was unconstitutional).  The Court may as well have said “this is a unique set of facts and, based upon all of the circumstances, we can’t fault the police for acting.”  I take the decision as saying Bombs + Kids = enter the garage and stop this.  Therefore, I’m not confident this decision will have very much impact long-term.  As much as the Fourth Amendment has been eroded by judicially-created exceptions over the years, this decision doesn’t really do any more damage to our constitutional protections.

However, this case is a good reminder that notwithstanding the Fourth Amendment, sometimes police don’t even have to establish probable cause to enter your home! And there are so many exceptions to the warrant requirement that it is indeed rare these days for officers on the scene to even bother to seek a warrant, knowing that their actions will likely be excused away as long as the bad guys get caught.  The real lesson here is that if you are doing something you shouldn’t, don’t expose the activities to the public by leaving the door halfway opened.  You are only setting yourself up for a search that will ultimately be upheld. In other words, actively protect your Fourth Amendment rights as there are a whole lot of ways courts can get around having to do so for you.

Posted on July 27, 2013, by Charles W. Morrison

Self-Defense in Ohio Vs. Florida – what is stand your ground anyway?

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Following the George Zimmerman acquittal, there has been a lot of discussion around our nation regarding the use of self-defense and, in particular, whether Florida’s “Stand your ground” law is appropriate or terrible social policy.  Is it a bad law? Would Mr. Zimmerman have been convicted absent the law? The point of this post it to try and educate the public regarding the law of self-defense, the duty to retreat (or not retreat) and how Ohio law may differ from Florida.

Let’s start with the basics.  Self-defense has been a viable affirmative defense to many crimes (assault, felonious assault, murder, etc.) for many, many years.  Since the inception of our great country, the law has recognized that no person is obligated to sit there while an aggressor beats on them; no person must remain idle when he or she has an objectively reasonable belief that they are about to suffer imminent serious harm or death.  We have always had the right to meet force with force.

Currently, the law in Ohio requires a defendant asserting self-defense to prove three things by a preponderance of the evidence (more likely than not):

(1)   That the defendant “was not at fault in creating the situation giving rise to the “affray.” Basically, you can’t start the fight and then claim self-defense when the other guy ends up dead.   A defendant must not have been responsible for causing the altercation in order to validly assert self-defense.

(2)   That the defendant “had a bona fide belief that he was in imminent danger of death or great bodily harm and the only means to escape such danger was in the use of such force.” The defendant must have reasonably believed, under the circumstances as he knew them, that he was about to suffer serious physical harm or death, and the use of force was necessary to thwart that imminent harm.

(3)   That the defendant “did not violate any duty to retreat or avoid the danger.”  Astute readers will notice that this third prong is somewhat duplicative to the second prong, because if the only means to escape the danger was the use of force, then obviously the defendant could not otherwise avoid the danger. But let’s not get too bogged down in that minutia. Appellate courts craft “tests” all the time that seem nonsensical.

This test is the classic common law definition of self-defense, and was rearticulated by the Ohio Supreme Court fairly recently in State v. Barnes (2002), 94 Ohio St.3d 21. So, where does Florida’s “stand your ground law” come into all this?  Stand your ground alters the second and third prongs of the test – whether the defendant violated a duty to retreat or to otherwise avoid the danger in deciding inflict harm on the victim rather than run.

In Florida, even if you are capable of retreating safely and avoiding the attack, you may still use whatever force is reasonably necessary in order to thwart the potential harm.  Run to your car? You may, but need not do so.  You are permitted to meet the force with force no matter the available alternatives.

This is fundamentally different than Ohio’s law on self-defense.  If you are out on the street and accosted by someone, but have the means to run away, you must do so.  Only when the use of force is your only alternative will self-defense be found legitimate by a jury.

There is one exception, however, to Ohio’s duty to retreat: the Castle Doctrine, as codified in R.C. 2901.05 and R.C. 2901.09.  Taken together, these sections state that a person has no duty to retreat from their residence or vehicle when confronted with the danger of physical harm. Moreover, there is a rebuttable presumption that the defendant acted in self-defense whenever he inflicted harm on the victim in his residence or car and the victim was unlawfully entering or within the residence or vehicle.  In other words, the state bears the burden of proving that the defendant did not act in self-defense if the circumstances fall within the Castle Doctrine.

In short, the Ohio legislature has determined that persons within their residence may use force, even deadly force, whenever they reasonably believe they are about to suffer serious physical harm or death, regardless of whether they could have run out the back door.   There is no duty to retreat from your “castle” (or carriage, I suppose).  Florida law essentially takes Ohio’s Castle Doctrine to the streets. No one should ever have to retreat, period.

So, with all of this in mind, did Florida’s law on self-defense have any impact on the Zimmerman trial? Absolutely not.  Zimmerman simply asserted the classic version of self-defense, and the jury evidently bought it.  As best I can tell, his argument was basically: (1) he was not the aggressor on that rainy evening in central Florida. Trayvon Martin threw the first punch. (2) He reasonably believed that he was about to suffer serious physical harm or death while his head was repeatedly hitting the pavement, and (3) he had no available option but to shoot young Mr. Martin to avoid serious injuries or possibly death.  Had the Florida legislature never enacted “stand your ground,” the arguments for and against Zimmerman’s use of force would have been the same.

Zimmerman never contended that he had the ability to retreat once the attack started, but wasn’t required to do so under “stand your ground.”  The defense never requested any instruction on “stand your ground” as it was irrelevant to the factual issues the jury was required to sort out.  Zimmerman’s argument was that he simply reacted reasonably under the circumstances, which he did not create, and did what he had to in order to save his life.  Had the trial taken place in Ohio, the ultimate issues would have been very similar.

Remain Silent: Never Talk to the Police, Or Should You?

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How Invoking Your Fifth Amendment Privilege Will Protect Your Ability To Remain Silent

remain silentIt is common to hear people give advice regarding how to act when they encounter the police.  Often, the advice is something along the lines of “don’t say anything at all.”  But, is this actually sound legal advice?  The answer is quite definitely, “No.”  Your failure to respond to police questioning can and will be used against you, according the recent decision by the Supreme Court of the United States in Salinas v. Texas.

In Salinas, the defendant voluntarily accompanied the police back the stationhouse for questioning about a murder.  The defendant was not in “custody” and was free to leave at any time he desired.  The defendant initially answered all of the detectives’ questions.  However, upon being asked whether the ballistics results from the shell casings recovered from the crime scene would match his weapon, the defendant said nothing in response.  Instead of saying, “I invoke my Fifth Amendment right to remain silent,” the defendant simply looked down at the floor and acted nervously.  The prosecutors later argued to the jury that the defendant’s silence and demeanor was evidence of his guilt.  After all, if you were asked that question as an innocent man, wouldn’t you have said something?

The jury ultimately convicted the defendant and he subsequently appealed the case all the way to the Supreme Court, arguing that the admission of this evidence at his trial violated his Fifth Amendment right to be free from providing testimony that may incriminate him.

So why did the Supreme Court rule that it was constitutional for the prosecutor to present this evidence at trial and argue its relevance to the jury?  The reason is that a person being questioned by law enforcement must affirmatively and unambiguously assert his Fifth Amendment right remain silent (the privilege against self-incrimination).  Oddly enough, and contrary to commonsense, simply remaining silent is not enough to invoke your right to remain silent in the face of police questioning.  Instead, the suspect must state something that unequivocally announces that he is refusing to answer questions and is asserting his Fifth Amendment privilege against self-incrimination.  If the suspect fails to affirmatively invoke his constitutional right against self-incrimination, he has waived the right and the state is free to introduce evidence of his silence at his trial.

Moreover, the “invocation rule” applies whether or not the suspect is in custody.  In fact, the defendant Salinas was not in custody and, therefore, police were not required to provide the well-known Miranda warnings to him at any time.  The Salinas decision was based in part on the Supreme Court’s 2010 decision in Berghuis v. Thompkins, in which the court ruled the defendant had waived his constitutional right, after having been provided his Miranda warnings, by remaining silent for more than two consecutive hours in response to persistent police questioning.  When he ultimately made incriminating statements to the police after breaking his prolonged silence, he did so at his own peril and without any constitutional protections.

However, the Salinas case presented a somewhat different factual scenario than Berghuis, as the dissent in Salinas correctly points out:  In Berghuis, the state introduced incriminating statements made by the defendant after he failed to properly assert his privilege (i.e. by only remaining silent); in significant contrast, the prosecutors in Salinas sought to introduce the defendant’s actual silence as evidence of guilt.  Nonetheless, a plurality of the court determined that this distinction did not warrant a different outcome than in Berghuis.  Therefore, failure to invoke the right to remain silent means that both statements made after silence while in custody, as well as the actual silence if you are not in custody, are admissible at trial.  It should be noted, that if you are in custody and simply remain silent, that silence may not be introduced into evidence – only statements made after silence.  However, this is a distinction that is important, yet probably difficult for most citizens to apply in practice.

In short, it is best not to say anything incriminating to the police, no matter how pressured you feel to do so.  However, you should not simply remain silent.  Instead, you should say only one line to the police: “I am refusing to answer your questions and I am invoking my Fifth Amendment privilege against self-incrimination.”  That should sufficiently protect your ability to remain silent whether you are in custody or out of custody and whether or not you have been provided Miranda warnings.