Parked Vehicles And The Fourth Amendment: Ohio Supreme Court Explains Why A Warrantless Inventory Search Of A Lawfully Parked Vehicle Is Unreasonable

Jack Burton once said, “When some wild-eyed, eight-foot-tall maniac grabs your neck, taps the back of your favorite head up against the barroom wall, and he looks you crooked in the eye and he asks you if ya paid your dues, you just stare that big sucker right back in the eye, and you remember what ol’ Jack Burton always says at a time like that: ‘Have ya paid your dues, Jack?” “Yes sir, the check is in the mail.’”

And that ladies and gentlemen is exactly what Quayshaun Leak did over the course of three years.  Leak’s wild-eyed eight-foot-tall maniac, collectively, were the Richland County Prosecutors Office, the Richland County Common Pleas Court, and the Fifth District Court of Appeals Court.  After being told by the trial court and the appellate court that his God given rights as an American citizen were not violated, Leak took it to the next level.  That next level was the Ohio Supreme Court.  It was at this level that our faith in the United States Constitution and the Ohio Constitution was restored. (Insert mental image of Bald Eagle soaring over the Rocky Mountains while John Wayne chases down ISIS terrorists on horseback…does not get much better than that).

Back on August 8, 2012, the Richland County Sheriff’s Office issued an arrest warrant for Leak based on a charge of domestic violence.  Wanting to assist the Sheriff Office, a Mansfield police officer headed over to the area where Leak lived.  The officer had his wits, his training, his love of action, and a description of the car Leak was reported to be in.  But the officer did not have a copy of the warrant or any information on where the alleged domestic violence dispute took place.

Not letting that get him down, the officer began to search for the car around Leak’s apartment.  It was in a cul-de-sac that the officer spotted the car question parked behind another car.  By seeing what appeared to be an attempt to conceal the vehicle, the officer knew he had stumbled upon criminal masterminds that must be stopped.  Lucky for the officer, Leak was seated in the passenger seat.   The officer approached the car, ordered Leak out of the car, arrested Leak, and placed Leak in the back of his patrol car.

After securing Leak in the back of his patrol car, the officer ran a check on the driver and found a clean driving record.  Instead of letting the driver and the other passenger go on their merry way, the officer removed them from the vehicle and called for a tow truck to impound the car.  The officer then searched the vehicle and found a gun, which Leak admitted was his to the officer.  Leak was subsequently charged with weapons violations and at the trial court, he moved to suppress the evidence of the gun asserting the search of car violated his U.S. Constitution’s Fourth Amendment rights against illegal searches and seizures.

At the suppression hearing, the arresting officer testified he was not certain who owned the car, but said he ordered it to be towed because he believed Leak owned it.  The officer stated it was department policy to conduct an “inventory search” before a car is towed to account for all the items in it.  The officer also testified that in situation like Leak’s, he searches cars for evidence of a crime because he does not know where the alleged domestic violence happened.  Makes total sense…….

After the suppression hearing concluded, the trial court overruled Leak’s motion to suppress evidence.  Leak pled no contest and was sentenced.  Leak then appealed to the appellate court which overruled his appeal.  Moving onward and upward, Leak brought his plight to Columbus to be heard by the Ohio Supremes.

In writing for the court, Justice O’Neil ultimately concluded that inventory search violated Leak’s right to unreasonable searches under the Fourth Amendment to The United States Constitution and Article I, Section 14 of the Ohio Constitution.  Looking at the Justice O’Neil’s opinion, he breaks down the arguments for allowing police to search a vehicle.  Specifically: 1) Search Incident to Lawful Arrest; 2) Lawful Community-Caretaking Inventory Search; and 3) Good-faith exception to the exclusionary rule.  To ease this legal opinion, I will break down the analysis in the same order of the opinion.

Search Incident to Lawful Arrest

Alright, what the hell does Search Incident to Lawful Arrest mean?  When talking Fourth Amendment searches, any warrantless searches are per se unreasonable prior to approval by a judge or magistrate. Katz v. United States, 389 U.S. 347.  If you ever watched COPS, the amazing show it is, then you have probably witnessed police officers pat-down a suspect prior to being formally arrested and searched the suspect’s vehicle.  What you probably did not witness was that prior to the search of the vehicle or pat-down the officer trying to get ahold of a magistrate or judge to conduct the search.  So, we have officers conducting searches on suspects without a warrant from a judge or magistrate…..what gives?  Search incident to a lawful arrest is an exception to the Fourth Amendment warrant requirement.

This exception exists for officer safety and to safeguard evidence that the arrestee might conceal or destroy.  State v. Adams, 2015-Ohio-3954.  Search incident to arrest is not unreasonable under the Fourth Amendment for a law-enforcement officer to search a vehicle without a warrant when a recent occupant of the vehicle has been arrested and 1) the arrestee is unsecured and within reaching distance of the vehicle or 2) it is reasonable to believe the vehicle contains evidence of the offense that led to the arrest.  Arizona v. Gant, 556 U.S. 332.

Looking at the facts of Leak’s case, the search incident to lawful arrest will not pan out for the officer.  Leak was arrested, secured in the back of a patrol car, and not within reaching distance of the vehicle prior to the arrest.  The first part of the exception does not work.  Let’s move on to the second part of the exception.

As stated above, the officer had his wits, his training, his love of action, and a description of the car, BUT he did not have a copy of the warrant or any information on where the alleged domestic violence dispute took place.   In addition, the officer testified that in situation like Leak’s, he searches cars for evidence of a crime because he does not know where the alleged domestic violence happened.  Basically, the officer did not have any legitimate information about the domestic violence charge to establish a connection between the vehicle Leak was sitting in prior to the arrest and the offense for which Leak was arrested.   The officer was merely on a fishing expedition for criminal evidence against Leak!  Not liking the officer’s justification for the search, the Court found the officer’s belief that the car contained evidence of the domestic-violence charge unreasonable.  Thus, this type of search fails as search incident to a lawful arrest exception.

Lawful Community-Caretaking Inventory Search

Ever been in a traffic jam because of wrecked vehicles?  Chances are pretty good that at some point in your driving career you were stuck in a traffic jam and were running late to something because of it.  Do you remember sitting in your car yelling “just tow the damn cars already!  Let’s move it!!”  I would yell something similar, but with some more choice words.  Police towing cars after an accident is an example of their community-caretaking function, which results from the government’s extensive regulation of motor vehicles and traffic.  See Cady v. Dombrowski, 413 U.S. 433.  Some other examples of police taking vehicles into custody are violations of parking ordinances, stolen or abandoned vehicles, and vehicles that cannot be lawfully driven.  Id.  This makes sense because imagine if police or government workers could not tow an abandoned vehicle on a residential street.  No one in the neighbor wants abandoned cars just hanging out.

With that in mind, inventory searches performed pursuant to standard police procedure on vehicles taken into police custody as part of a community-caretaking function are reasonable. Id.  Inventory searches have three main objectives: 1) protecting an individual’s property while it is in the custody of the police, 2) protecting the police from claims of lost or stolen property, and 3) protecting police from danger. Id.   Based on that logic, inventory searches of lawfully impounded vehicles are reasonable under the Fourth Amendment when performed in accordance with standard police procedure and when the evidence does not demonstrate that the procedure involved is merely a pretext for an evidentiary search of the impounded vehicle.  Blue Ash v. Kavanagh, 2007-Ohio-1103.

Taking the above law surrounding community-caretaking inventory searches, the Court looked to R.C. 4513.61 and Mansfield Codified Ordinances 397.01 to find out if the vehicle had been lawfully impounded or whether the impoundment was merely a pretext for an evidentiary search of the impounded car.  Based on the record, the Court stated that the only reason the officer had the car towed was his uncertain and unverified belief that he had just arrested its owner.  Thus, the officer’s belief was insufficient to support a reasonable conclusion that the car’s impoundment was lawful under R.C 4513.61 or that Leak’s arrest would result in the abandonment of the car to justify its impoundment under 307.01 of the Mansfield Codified Ordinances.

Not wanting to beat up on the officer too much, the Court offered the officer a glimpse of hope that the inventory search was justifiable.  The Court went on to discuss that the U.S. Supreme Court left open the possibility that an impoundment may be lawful if it is pursuant to a police department policy based on “standard criteria and on the basis of something other than suspicion of evidence of criminal activity.”  Colorado v. Bertine, 479 U.S. 367.  Unfortunately for Officer Serpico, he never testified to any impoundment policy and no such policy was entered into the record.  Because of this lack of testimony, the Ohio Supremes had no basis to determine if “such a policy could be the lawful basis for impounding a vehicle.”

Good-Faith Exception to the Exclusionary Rule

Lastly, the Ohio Supremes looked to the good-faith exception to the exclusionary rule.  The exclusionary rule bars the use of evidence secured by an unconstitutional search and seizure. State v. Johnson, 2014-Ohio-5021.  Oddly enough, applying the exclusionary rule to evidence found as a result of an unconstitutional search and seizure is not a personal constitutional right to be exercised by the defendant.  Id.  The rule’s sole purpose is to deter future violations of the Fourth Amendment. United States v. Janis, 433 U.S 433.

However, the Ohio Supremes have held that “when law-enforcement officers act with a good-faith, objectively reasonable belief based on the state of the law at the time the search was conducted, suppression of the evidence obtained as a result of the search would have no appreciable effect on deterring future violations of the Fourth Amendment, and therefore the good-faith exception to the exclusionary rule applies. State v. Johnson.  But, when the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs.  Herring v. United States, 555 U.S. 135.

Looking at the totality of the circumstances of Leak’s arrest and subsequent search, the Ohio Supremes found that “permitting evidence to be used against Leak under the good-faith exception to the exclusionary rule would eviscerate the purpose of the Fourth Amendment’s prohibition against unreasonable searches and seizures.”

This opinion describing Leak’s legal plight brings me back to one of the greatest unsung heroes this country has ever produced, Jack Burton.  Jack has been known to say the following: “Just remember what ol’ Jack Burton does when the earth quakes, and the poison arrows fall from the sky, and the pillars of Heaven shake. Yeah, Jack Burton just looks that big ol’ storm right square in the eye and he says, ‘Give me your best shot, pal. I can take it.’”  And that is what happened over the course of three years to stand up for the Fourth Amendment of our Constitution.

As a side note, if you are reading this and you do not know who Jack Burton is, I suggest you rent the documentary entitled Big Trouble in Little China.  It is an amazing story about a simply man trying to get his beloved truck back from the street gang Lords of Death.  In doing so, Jack helps rescue his friend’s fiancée and saves San Francisco’s Chinatown.  It is worth your time!

Violating A Protection Order Through Social Media: How Tagging A Victim On Social Media Platforms Can Land You In Jail

Close your eyes for a moment and think back to a day when Facebook, Twitter, Instagram, Reddit, Vimeo, YouTube, and LinkedIn were not in existence.  Did you feel that sense of pure freedom from Social Media or did you freak out because you don’t know what you friend had for lunch today because you can’t see his food post?  Regardless, it is pretty crazy to think about our society without Social Media at the grasp of our fingertips.

Millions of people connect every second of the day via Social Media platforms.  By simply posting a picture or a status update you are connected with people across the world.  The world is truly your oyster when posting pictures of yourself sweating in the gym and captioning the picture with generic motivational sayings.

Another great aspect of saying what you feel through status updates or short videos is the ability to tag other individuals, groups of people, or organizations.  Not happy with your McDonald’s Big Mac??  Post it on Twitter, tag McDonald’s about your complaint/annoying Twitter post, and see what happens.  McDonald’s will respond!  This is pretty impressive and something that adults of the 1980s only dreamed of when their Big Mac meal fell short of expectation.  They had to call McDonald’s to put forth a complaint and were probably put on hold!  Do these kids today even understand what being put on hold even means?!?  Instant gratification is both a curse and a blessing.

This tagging ability on Social Media is now getting individuals in trouble with the law.  Awhile back, I published Government Can’t Stop Tone Dougie’s Fresh Beats and Fly Lyrics: The U.S. Supreme Court’s Take On Facebook Threats and Facebook Fought The Law And The Law Won: Court Rules In Favor Of The Government When It Comes To Search Warrants For Your Private Facebook Account.  Both articles addressed how courts are trying to keep up with Social Media.  Since publishing those articles, more and more criminals are making the news for Facebook and other Social Media posts.  For example, a man had his parole revoked because he took a picture of himself holding a firearm and then posting said picture on his Facebook account.  That picture sent him straight back to prison.

Just recently I came across an article about a New York woman getting in trouble over a Facebook post targeting her sister-in-law.  Ms. Maria Gonzalez had a protection order against her to refrain from contacting her sister-in-law.   The protection order prohibited direct and indirect contact along with any form of communication either direct or indirect.  I guess good ole Maria did not believe that Facebook contact counted.

Maria posted that her sister-in-law was “stupid” and “You and your family are sad…you guys have to come stronger than that!! I am way over you guys but I guess not in ya agenda.”  And of course, Maria used the Facebook tagging mechanism to ensure that her sister-in-law would read the post.  The cops were then notified and Maria was charged with violating a protection order.  Maria’s stellar defense was that the protection order did not specifically mention contact via Facebook.  Not really buying that argument, the judge stated “The allegations that she contacted the victim by tagging her in a Facebook posting which the victim was notified of is thus sufficient for pleading purposes to establish a violation of the order of protection.”  Looks like Maria will be in some hot water.

But that is New York law!  We are in Ohio and our law has to be different….right?!?!  Not really and just like Maria, you can land in the County Hotel.

Ohio has various protection orders to protect victims from their assailants.  These include Domestic Violence Civil Protection Order (R.C. 3113.31), Domestic Violence Criminal Temporary Protection Order (R.C. 2919.26), Criminal Protection Order (R.C. 2903.213), Civil Stalking Protection Order (R.C. 2903.214), Civil Sexually Oriented Offense Protection Order (R.C. 2903.214), and Protection Order Against A Minor (R.C. 2151.34).

Each protection order for the most part carries the same language with regards to contact with the victim.  However, Ohio protection orders are pretty specific and after reading the language regarding contact with a victim, it is clear that there is zero contact with the victim.  Take a look at the language directly from a protection order below.

RESPONDENT SHALL NOT INITIATE OR HAVE ANY CONTACT with the protected persons named in this Order or their residences, business, places of employment, schools, day care centers, or child care providers.  Contact includes, but is not limited to, landline, cordless, cellular or digital telephone; text; instant messaging; fax; e-mail; voice mail; delivery service; social networking media; blogging; writings; electronic communications; or communications by any other means directly or through another person.  Respondent may not violate this Order even with the permission of a protected person.  (Original emphasis).

For clarification, the respondent is the person that the court issued the protection order against based on testimony.

As you can tell, Ohio lays out quite a bit of ways to violate a protection order.  Looking at Maria’s plight, I think she would have violated the terms of Ohio’s protection orders by tagging her sister-in-law in a Facebook post.

Let’s change up the facts a bit to see if Maria could have avoided her mishap by not tagging her sister-in-law.  Maria writes the same rant against her sister-in-law on her Facebook status bar, she then publishes this rant to her Facebook page, but Maria does not tag her sister-in-law to the post.  Would Maria still be in violation of the protection order?

To violate the terms of a protection order, the prosecutor must show that you were reckless in your actions. (R.C. 2919.27).  A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature.  A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist. (R.C. 2901.22).  Say what?!?

Imagine a vehicle traveling down the Interstate at 120 MPH during the middle of rush hour.  This vehicle is zooming in and out of traffic with no due regard to safety.  The driver of this vehicle has mental state that is reckless because even though does not plan on crashing hurting himself, other persons, or property, the circumstances of driving 120 MPH during rush hour produces the risk of harm.

Taking that mental state into account, I will play prosecutor.  That means that I will need to show that by Maria posting her rant against her sister-in-law on Facebook, without tagging the sister-in-law, Maria disregarded the substantial risk that her conduct would result in her sister-in-law seeing the Facebook post.  Based on the previous facts that Maria was able to tag her sister-in-law that tells me they are both still Facebook friends that have not blocked each other’s posts.  So there is a substantial risk that by Maria posting her Facebook rant that said Facebook rant will come up in the sister-in-law’s Facebook newsfeed.  Is this good enough?  I would argue no, but there is room for the prosecutor’s argument.

Let’s take it to the next step and assume that Maria and her sister-in-law are not Facebook friends or they blocked each other from seeing their posts.  Now, as the prosecutor, I need to show that Maria’s Facebook post would indirectly get back to the sister-in-law.  Maybe show that Maria is still Facebook friends with other members of the sister-in-law’s family and they would in turn tell the sister-in-law about Maria’s Facebook post.  I personally think this would be a stretch of the purpose of the protection order.

For example, say Maria in her Facebook post states “Tell my sister-in-law she is a real bitch!” and Maria tags members of her family and other friends in the post.  Obviously Maria wants her family members and other friends to tell her sister-in-law what she thinks.  This can be construed as indirect contact.  Now assume that Maria posts “My sister-in-law is a bitch!” and Maria does not tag any members of her family members or friends.  At this point I would argue that Maria is simply stating how she feels about her sister-in-law regardless of who sees it.

Looking at these examples it is clear that the law is catching up with Social Media and is adjusting to it accordingly.  With that said, try to refrain from putting your thoughts and feelings on Social Media platforms.  Once your posted thought heads up to the Cloud, it is gone forever and might come back to haunt you later in life.  So eat your food instead of posting it online and actually workout in the gym instead of posting pics of yourself in the bathroom.  Or maybe I am in the wrong because I really like to eat food and I am over the whole workout thing.  A debate for next time I suppose.

Marijuana Debate Update: Toledo’s Sensible Marijuana Ordinance Is In Full Swing And Use!

It is hard to imagine that only a few months ago our great nation watched us Ohioans vote on Issue 3, the legalization of marijuana.  As most of us remember, Issue 3 got crushed at the polls.  The margin between the yay and nay votes was over 900,000.  That was a true bummer to those hoping to smoke their marijuana without Johnny Law coming after them.  This was especially tough for those ten rich investors that wanted all the marijuana to themselves in order to sell it at a higher price.  That is right Nick Lachey, marijuana users have not forgotten about you and your rich buddies.  I for one did enjoy their light hearted political advertisements about why we need to legalize marijuana.

During this brouhaha of whether Ohio should legalize marijuana or not, the City of Toledo took on its own initiative to decriminalize marijuana.  Back in September 2015, Toledo put on the local ballot Issue 1: The Sensible Marijuana Ordinance.  The Sensible Marijuana Ordinance decriminalized marijuana by decreasing the penalties of marijuana violations.  The decreased penalties also applied to felonies, described by state law.  The focus was to make the penalties the absolute minimum while keeping marijuana technically illegal in order to comply with state law.

The Sensible Marijuana Ordinance did the following:

1)         Removed all jail time and fines for marijuana violations;

2)        Prevented driver license suspensions due to marijuana violations;

3)        Forbids any marijuana violation from being reported to any professional licensing board or agency;

4)        Prevented law enforcement agencies from reporting marijuana violations to any authority above the city attorney;

5)         Prohibited civil or criminal asset forfeiture as a consequence of any marijuana related violation.

As of today, local news agencies are reporting that individuals that have been charged with marijuana violations after the implementation of The Sensible Marijuana Ordinance, have faced no jail time and no fines from the court.

A major issue that is before the court right now as it relates to The Sensible Marijuana Ordinance is the provision about felonies.  Attorney General Mike DeWine, Lucas County Sheriff John Tharp, and Lucas County Prosecutor Julia Bates filed a lawsuit against the city to stop it from enacting the sections of The Sensible Marijuana Ordinance as it related to felonies.  The above mentioned three amigos argued that removing certain penalties for crimes regarding more than 200 grams of marijuana is outside of the City of Toledo’s authority.   Both the City of Toledo and the three amigos are still waiting on the court’s answer.

It is interesting to note that the City of Dayton has very similar city ordinances when it comes to decriminalizing marijuana.  Albeit that Dayton did not go as far as Toledo did for lessening marijuana penalties, but the Gem City has taken the issue seriously.

Under City of Dayton Ordinance 139.02 (Trafficking in Marijuana), an offender only faces a minor misdemeanor and no driver license suspension if the marijuana in question is 20 grams or less.  That is a max fine of $150 and no jail time.

Under City of Dayton Ordinance 139.03 (Drug Abuse) an offender that possess 100 grams or less of marijuana will only face a minor misdemeanor.  Max fine of $150 fine, no jail time, and no driver license suspension.  In addition, the ordinance goes on to state that an arrest or conviction for a minor misdemeanor violation does not constitute a criminal record and need not be reported by the person so arrested or convicted in response to any inquiries about the person’s criminal record, including any inquiries contained in any application for employment, license, or other right or privilege, or made in connection with the person’s appearance as a witness.

Based on how cities across Ohio are handling marijuana violations, it seems it will be only a matter of time until marijuana is legal or decriminalized to a point that any minor marijuana offense will not bring any significant penalty.

Res Judicata and Expungements: Don’t Let A Latin Legal Phrase Bar You From Reapplying For An Expungement!

Alright, so we are eighteen days into the New Year and I am guessing most have given up on going to the gym.  I for one decided to forgo saying I was going to start exercising because I just know it won’t happen right now.  It is in the back of my mind and I think about it every time I pass the local gym while driving and eating a Big Mac.  I will eventually get to the gym, but for now I will just enjoy keeping on the extra pounds to fight off the cold temperatures.  That is what I am telling my wife at least.

In the legal world, the New Year means that citizens with a criminal history look to get their criminal records sealed or expunged.  A new year brings with it optimism for a new look on life, and you don’t want that optimism crushed by your criminal record that continues to hold you back!  With that, I begin to get a few phone calls every other day from upright American Citizens looking to get rid of that nasty criminal record.

There are many reasons to get your criminal record sealed or expunged.  The reasons could be for a new job, applying to colleges or graduate school, professional licenses, concealed handgun permit, or you just want the criminal charge off your record.  In any event, I sit down with the client to figure out if they are an eligible offender, and if so, I then explain the process of going about getting their criminal record sealed.

But what if you previously applied to have your criminal record sealed or expunged and the court denied your application?  Can you reapply to have your record sealed or expunged?  And if you do reapply, is there anything that may bar you from having the second application for sealing or expunging your record denied.

The answer to both questions is a simple, YES.  YES you can reapply to have your criminal record sealed and YES there is a legal term that could potentially bar your new application.  This legal term is called res judicata.  This is a Latin term that means “a matter judged.”  In the legal world this means that your legal claim can be barred from being reheard by the court if you already litigated the same claims against the same party.  An illustration might be useful to fully understand res judicata.

During your wild and crazy college days, you and your buddies were walking around campus and acting foolish.  During your foolish endeavors around campus you become drunk and disorderly.  A group of freshmen students, who are studying on a Tuesday night instead of partying like yourself, call the Campus Police on you and your buddies.  The Campus Police stop you and issue you a criminal citation for being drunk and disorderly.  Unfortunately for you though, in what you believed was funny at the time, you begin to antagonize the police officers and started to refer to them as bacon.  Well, that little conversation goes into their report along with the criminal citation.  The following week you go to court and pled guilty as charge.  Court finds you guilty, suspends the jail sentence, and orders fine and court costs.  No big deal and you move on with your life.

A year later you want to get this drunk and disorderly charge removed from your record because you are applying for jobs and you do not want your future employer to know about your college antics.  You file your application to seal your criminal record and you go before the judge.  You are sweating now because it is the same judge who sentenced you and yelled at you when you pled guilty one year ago.  The judge looks at the application, looks at you, looks at the application, then in a very soft voice the judge asks “aren’t you the one who kept referring to the Campus Police as bacon?”

Your face goes white and you know this is not going to end well.  Judge then orders application denied because the government’s interest to retain your criminal record outweighs your interest.  Well that sucks!

Alright, you file a second application to seal your criminal record one year after your first denied application.  Just your luck though, it is the same damn judge who denied your previous application and still has that distaste for you.  This time around he denies it because the prosecutor argues that your second application is barred by res judicata.  The reason why your claim is barred is because you are litigating the same claim of sealing your criminal record, the claim is with the same parties (you and the State), and the claim is before the same court.

This illustration demonstrates how res judicata can bar your second application to seal your criminal record, but don’t let it stop you from applying because there are ways around res judicata!

The Ohio Supreme Court and multiple Ohio Appellate Courts have held that res judicata does not bar a second application to seal a criminal record if there is a change in circumstances.  Well that is great news, but what constitutes a change in circumstances?

The most common example of a change in circumstance as it relates to sealing of criminal record is the change from “First Offender” to “Eligible Offender.”  Under the old expungement law in Ohio, only people who met the definition of First Offender were eligible for an expungement.  A First Offender was a person that had only one conviction.  Under the new expungement law, effective September 28, 2012, an Eligible Offender is a person who “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.”

A perfect example of this change is circumstance is in State v. Grillo, 2015-Ohio-308.  In Grillo, Grillo filed applications to seal his criminal record in 2009 and 2010.  Both applications were denied by the trial court.  It is important to note that both of Grillo’s applications were filed when the expungement law stated that a person had to be a First Offender.  In December 2013, Grillo filed a third application to seal his criminal record with the same trial court.  After being denied for the third time, Grillo appealed.

The State’s first argument was that Grillo’s claim is barred by res judicata.  The appellate court found that the expungement statute in effect at the time the application is filed is the statute that controls the court’s ruling.  State v. LaSalle, 2002-Ohio-4009.  The appellate court further found that res judicata applies to successive motions for sealing when there has been no change of circumstances since the filing of the offender’s prior motion.  State v. Haney, 1999 WL 1054840 (Nov. 23, 1999).

The court goes on to state that Grillo filed his previous motions for expungement under the statutory definition of First Offender not Eligible Offender.  The court further stated that Grillo’s third application to seal his criminal record was filed after the Ohio Legislature broadened the definition of an Eligible Offender.  Based on these facts, the court held that “if the expungement statute in effect at the time the application is filed is the statute that controls the court’s ruling, and that statute broadens the class of persons eligible for expungement form the previous version, we find this constitutes a change in circumstances between the prior requests for expungement and the instant application so as to allow a court to consider a subsequent petition and res judicata would not bar its review.”  see Set Products, Inc. v. Bainbridge Twp. Bd. Of Zoning Appeals, 31 Ohio St.3d 260.

Another example of a change in circumstance case that I found is State v. Cope, 111 Ohio App.3d 309 (1996).  In Cope, Cope applied to seal her criminal record for a drug conviction after Governor George Voinovich granted her an unconditional pardon for said drug conviction.  The State raised two arguments against Cope, one being that she was barred because of res judicata.  The court found that being granted an unconditional pardon for a drug conviction was a prime example of a change in circumstance.  Although, technically Cope really would not to seal her drug conviction because the pardon essentially made her conviction go away, but it was a matter of principal I suppose.

Between the two cases, I would say Grillo is more common example of a change in circumstances verses the change in circumstances in Cope.

Looking at both cases, the most important thing to realize is that a change in circumstances allows you to reapply to seal your criminal record without the possibility of being barred by res judicata.  However, this is not an easy task.  Make sure to consult with an attorney to help navigate through any res judicata argument and to help formulate your change in circumstance argument.

In closing, Happy New Year and Happy MLK Day!

I am now going to think about exercising.  Baby steps….can’t rush these things.