Visitation Schedules And Interference With Custody: A Look At How Criminal Courts Interpret Custody Orders

When you hear the term “custody battle” what do you think of?  I would say most people think of parents in a no holds barred cage match where anything goes.  There is name calling, false accusations, and a whole lot of hurt feelings in a custody battle.  Eventually though, after the custody trial/cage match, the court makes the determination with regards to custody and visitation.

Now to be fair, there are plenty of couples and married couples that go their separate ways and work together to formulate a custody and visitation plan surrounding their children.  These individuals usually present their formulated custody and visitation plan as an agreed order to the court.  A majority of these plans end up as Shared Parenting Plans.

Regardless if the court issues an order after a custody trial or if the parents present an agreed entry to the court, the parents must abide by the court’s order regarding custody and visitation.

Unfortunately, some parents choose to ignore the court order surrounding custody and visitation of the minor children.  Not only can this lead to civil prosecution (i.e. contempt of court) it can also lead to criminal prosecution!

Like most criminal cases, Interference with Custody cases are fact sensitive and can have very different outcomes based on visitation agreements.  To help us on this fantastic journey of criminal law, we will take a look at two cases of individuals being accused of Interference with Custody but will two very different outcomes.  Before we begin this magical journey let’s take a gander at Ohio Revised Code 2919.23 Interference with Custody.

R.C. 2919.23 (A)(1) provides the following:

No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a child under the age of eighteen, from the parent, guardian, or custodian of the child.

R.C. 2919.23 seems simple enough and pretty straight forward right?  Let’s take a look at our first case of State v. Sprinkle, 2007-Ohio-4367, where the defendant tried to skirt around the Interference with Custody statute.

In Sprinkle, Sprinkle and her ex-husband entered into a shared parenting plan that named both parents as residential parents of their child and incorporated a visitation plan.  Pursuant to the shared parenting plan, Sprinkle was to have visitation with her child every other weekend and on alternate weeks, Monday through Friday.  In addition, Sprinkle was allotted two continuous weeks during the summer, but only upon 30 days written notice to her ex-husband.  Lastly, either parent could modify the agreement upon the other’s consent.

Prior to Sprinkle executing her weekend visitation with her child, Sprinkle requested to her ex-husband if he would have any issue of taking the child to Kentucky and bringing the child back on Monday instead of Sunday when her visitation would end.  Sprinkle’s ex-husband had no issue and Sprinkle, along with the child, went down to Kentucky for a long weekend.

Well, Monday came and went without Sprinkle returning the child back to her ex-husband.  Not too happy with this, Sprinkle’s ex-husband contacted Sprinkle several times while she was in Kentucky and notified the police department.  The police department eventually was able to get ahold of Sprinkle and notified her that she was in violation of the agreement.  Sprinkle and the child returned after being in Kentucky for 10 days.  Sprinkle was arrested and subsequently indicted on one count of Interfering with Custody, a felony of the fifth degree.

Sprinkle took her case to the box (jury trial) and was found guilty as charged!  Sprinkle was sentenced to 90 days in the local county hotel (jail) and three years of probation.  Sprinkle filed a timely appeal.

On appeal, Sprinkle argued that the statute in question does not apply in the context of a shared parenting plan because she is the custodial parent of the child so long as the child is with her.  Thus, even though she allegedly kept the child in violation of the agreement, she had custody and could not have violated the criminal statute.

The appellate court said, in their Coach Lee Corso voice, “NOT so fast my friend!”

A parent with visitation rights under a court order can be charged with violating R.C. 2919.23 if the parent keeps their child without privilege to do so.  State v. Brickles, 1999 WL 957643 (Sept. 3, 1999).  In Brickles, the appellate court found that parents’ natural privileges regarding custody are limited by a court order including specific times listed for visitation.

Applying Brickles, the appellate court found based on the testimony given at trial that 1) Sprinkle’s did not have the right to keep her daughter for ten days, 2) Sprinkle’s ex-husband was the residential parent during the time Sprinkle’s was in Kentucky with the child, and by her own admission 3) Sprinkle knew that she was keeping the child, without privilege to do so, in violation of R.C.2919.23.

With that, the appellate court affirmed the judgment and ole Sprinkle got to cool off in the county spa.

Now in State v. D.F., 2017-Ohio-534, the facts led to a different outcome.

In D.F., D.F. was convicted of a single count of interference with custody in violation of R.C. 2919.23 after a brief trial.  During the trial, the father (who was also the custodial parent of the minor child) testified that he and D.F. often deviated from the parenting schedule, including the incident that led to charges being brought against D.F.  Although the father testified that he did not give D.F. permission to keep the child for the period in question, the state presented no evidence to prove that the parties actually discussed the child’s return date.

In addition, the father testified that he attempted to call and text message D.F. to inquire about the child’s return, he only did this for one day with no evidence that D.F. received the calls and text messages.

Applying Sprinkle and Brickles, the appellate court found based on the testimony given at trial that 1) there was no evidence given of any specific understanding as to when the child would be returned and 2) given the fact that the parties routinely deviated from the parenting schedule, the father’s testimony regarding his subjective understanding of the matter did not prove what D.F. knew or should have understood.

Based on the above, the appellate court found that the state offered insufficient evidence to prove beyond a reasonable doubt that D.F. knowingly or recklessly kept their child without privilege to do so.

Great outcome for D.F., but a real bummer for Sprinkle!

My take on these cases is to keep it simple and to follow the visitation order!  Don’t be like Sprinkle whose only justification for keeping the child for 10 days in violation of the visitation order was that she was the child’s mother.  In other words, “you are not going to tell me what I can and can’t do with my child.”

You might get away with that in divorce or juvenile court, but not so much in criminal court.  These cases make it clear that a criminal court is going to follow the visitation agreement as it is written!

And if you and your ex-significant-other like to deviate from the agreed upon visitation order, I highly recommend you talk with a family law attorney to structure such an agreement to ensure your visitation rights are protected!

The Ellen DeGeneres Show, Failure To Pay Income Taxes, and Ineffective Assistance Of Counsel…Oh My!

A few weeks back I saw one of those funny internet memes that went viral.  In the meme, a young boy’s older brother took a before and after picture of the young boy opening up his first paycheck.  The before picture shows the boy with a smile on his face ear to ear while he holds up the paycheck still in the envelope.  The after picture shows the young boy’s face is complete dismay while reading all of the taxes and deductions taken out from his paycheck.  The older brother captioned the picture with “Congratulations to my brother on his first paycheck and his discovery of taxes!”  Well I feel you younger brother!

And that little story leads us to the case at hand, State v. Fields, 2017-Ohio-400.

In Fields, Fields was a single mother of four minor children that lost her teaching position due to budget cuts.  During the holidays, Fields went to the local Rotary Club for help during the holiday season.  It was there that Fields met Diane Toby, who bought Field’s entire family Christmas presents for the next three years.

Fields, a huge fan of the Ellen DeGeneres Show, wrote to Ellen to help her show her appreciation to Diane.  Thereafter, the producers of the Ellen DeGeneres Show flew Fields and her children to Los Angeles to attend the show.  In addition, and not known to Fields, Diane was also flown to Los Angeles for a surprise reunion with Fields and her children.

When the reunion took place on the stage, Fields was given $55,000!  The sum was stated as being $10,000 for each of the four children to help pay for college, $10,000 to help Fields finish her Master’s Degree, and $5,000 to help Fields pay her bills.  The money was received from the website

For the 2013 tax year, Shutterfly issued an IRS Form 1099-Miscellaneous Income to Fields.  Fields alone was listed as the recipient, and $55,000 was listed in Box 7, Nonemployee Compensation.  Fields had her 2013 federal, state, and city income tax returns prepared by a volunteer.  The $55,000 sum was reported as income on all three returns, and a tax liability is still owing on each of the returns, which Fields has been unable to pay.

Fields was soon after charged by complaint for “knowingly failing or refusing to pay the tax, penalties or interest imposed by the Xenia Ordinances related to income tax for tax year 2013.”  Fields had a balance due of $1,758.61.  On advice of counsel, Fields attempted to file an amended tax return with the Xenia to reflect that the $55,000 was a gift and that no tax was due.  The amended return was not accepted.

After the amended return was denied, Fields’ attorney filed a Motion to Dismiss the case.

The trial court set a hearing to “allow counsel for the parties to provide further argument (with supporting case law or other documentation) as to whether the $55,000 at issue herein is Nonemployee Compensation, a Gift, a Charitable Contribution, or has some other legal status.”

After the hearings, the trial court reasoned the following:

“The Court will state at the outset that, after watching the YouTube video, it certainly does not seem that the $55,000 Defendant received was Nonemployee Compensation.  It appears to the Court the money was an unexpected gift to help Defendant and her children.

With that said, the Court is faced with City’s Exhibit 1, the IRS Form 1099-Misc which clearly lists Defendant as the sole recipient of $55,000 for Nonemployee compensation.  This Court is unaware of any case law that authorizes it to change the characterization of the money as reported to the IRS by the payer, Shutterfly Inc.  It would seem any change would need to occur at the behest of Shutterfly Inc.

Nonemployee compensation is taxable income as defined in Court’s Exhibit 1.  Accordingly, the Court must OVERRULE Defendant’s Motion to Dismiss.”

On January 4, 2016, Fields pled no contest to the charge of failure to pay income tax.  The trial court found her guilty and imposed a fine of $75 and 30 days in jail, all of which were suspended on the conditions that she (1) have no further violations within five years and (2) sign and comply with a pay agreement with the Xenia Tax Department.

Fields filed a timely appeal.

For the purposes of our discussion, I am going to only focus on Fields’ third assignment of error, Ineffective Assistance of Counsel.

Fields claimed that her attorney should have done the following:

1)         Worked with her to get an amended Form 1099-Miscellaneous Income;

2)        Sought a continuance;

3)        Offered “facts or circumstances after the no contest plea about her lack of intent to refuse to pay the taxes or how she could not be found guilty due to valid questions about taxes owed;”

4)        Not stipulated that there were sufficient circumstances upon which the trial court could make a finding of guilty on her no contest plea; and

5)         Argued that she could not be found guilty and imprisoned for inability to pay.

To establish ineffective assistance of counsel, a defendant must demonstrate both that trial counsel’s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different.  State v. Bradley, 42 Ohio St.3d 136 (1989).  Trial counsel is entitled to a strong presumption that his or her conduct falls with the wide range of reasonable assistance.  Strickland v. Washington, 466 U.S. 668 (1984).

The appellate court, addressed each of Fields’ claims of ineffective assistance in the same order she presented them in her brief.

First, the appellate court concluded that defense counsel’s conduct did not fall below an objective standard of reasonableness due to counsel’s alleged failure to help Fields obtain an amended 1099-Miscellaneous Income form.  Fields’ attorney was appointed to provide legal assistance in a criminal matter; counsel was not appointed to act as a tax attorney for Fields.

Second, counsel was not ineffective for not seeking a continuance because it is unknown whether Shutterfly would have agreed to amend the 1099 form, and one can only speculate whether the outcome of Field’s case would have been different.  Thus, Fields did not demonstrate ineffective assistance of counsel on this basis.

Third, by pleading no contest, Fields agreed that she “knowingly failed or refused” to pay the tax, and she was aware that the court would find her guilty based on her plea and the facts contained in the complaint and supporting documentation.  Thus, Fields waived her ability to challenge whether she owed income tax and counsel did not rendered ineffective counsel with regards to this claim.

Fourth, the appellate court questioned counsel’s agreement to stipulate to the facts and waive the reading of the facts as said stipulation directly counteracts the protections of R.C. 2923.07 for misdemeanor defendants and fails to ensure that the court’s finding of guilty on a defendant’s no contest pleas is other than perfunctory.  Nevertheless, the appellate court still found that counsel did not render ineffective assistance of counsel through agreeing to a stipulation and waiver because the trial court on its own accord reviewed the criminal complaint and attached documents to determine Fields’ guilt.

Looking at Fields last claim of ineffective assistance of counsel, the appellate court dove into some more very fascinating case law.  Let’s take a look!

Section 15, Article I, of the Ohio Constitution forbids imprisonment for debt in a civil action.

In Cincinnati v. DeGolyer, 25 Ohio St.2d 101, the Ohio Supreme Court held that municipal income tax, due and unpaid, is a debt within the meaning of this constitutional provision.  The court further held that a sovereign could provide, by law, that a willful failure or refusal to pay taxes was a crime and impose sanctions, including imprisonment, for a violation of such a law. Id.

In order to convict a defendant accused of a violation of a municipal income tax ordinance which imposes a penalty of imprisonment for a refusal to pay said taxes, the municipality must allege and prove, beyond a reasonable doubt, that the failure to pay was willful or intentional or fraudulent.  Id.

The inability to pay due to indigence, lack of control over the withheld monies, or the like would tend to negate the element of willfulness.  Toledo v. Micham, 6th Dist. Lucas No. L-90-377, 1991 WL 192147, *3 (Sept. 30, 1991).  The inability to pay in this situation is an affirmative defense.  R.C. 2901.05 (A) and (C)(2).  As such, the burden in on the defendant to show impossibility of payment by a preponderance of the evidence.  Micham.

Based on the record, and the supported case law above, the appellate court believed there was a reasonable probability that the outcome of the case would have been different had Fields proceed to trial.  Thus, counsel was ineffective for not raising the issues raised in the Motion to Dismiss in a trial.

A very tough case for Fields!  One moment she is being helped out by her community to get through a difficult time and the next moment she is facing jail time for being poor.  I want to point out that the trial court judge in this case wanted to side with Fields.  In fact, the trial court stated on the record that it was not happy with the decision it wrote.

As the great Mark Twain once said, “What is the difference between a taxidermist and a tax collector?  The taxidermist takes only your skin.”



Obstructing Official Business: Affirmative Act vs. Uncouth Conduct

There is no doubt in my mind that police officers deal with a ton of bullshit on a daily basis.  Their lives are on the line every day and to make things even better they deal with some real annoying jackasses.  And when these individuals get in the way of police business, a real quick arrest charge an officer can utilize is charging this individual with obstructing official business.  However, as State v. Morris, 2016-Ohio-8325, points out, courts have not interpreted the obstructing official business statute to criminalize uncouth and/or uncooperative conduct.

In Morris, Morris helped out his daughter raise her two children that she had with a one Robert Wade.  Wade, being a deadbeat dad, has not helped with the children.  The children are a five-year old and a baby.  To help his daughter out, Morris would go to his daughter’s house every morning to pick up his grandchildren, take the five-year old to school, and care for the baby while his daughter worked during the day.

One morning, Morris went to his daughter’s house per usual to pick up the children.  While inside the house, he noticed Wade sleeping in a bedroom.  Morris was surprised to see Wade’s presence and confronted him about being a deadbeat dad.  This verbal confrontation soon turned into a physical altercation.  Wade managed to get on top of Morris and proceeded to beat Morris.  Morris, in self-defense, stabbed Wade with a pocket knife.  This did not faze Wade and he continued his onslaught of punches to Morris’ face and body.  Morris’ daughter was eventually able to remove Wade from Morris.  Upon doing so, Morris went outside to call police officers.  Morris remained outside while the police officers were en route.  Shortly thereafter, two officers arrived on scene.

When the officers arrived to investigate, Morris approached them and informed the officers that Wade jumped him and that he stabbed Wade.  The officers immediately detained Morris, handcuffing him and placing him in the back of a patrol car while they investigated the stabbing incident.  Morris, unfortunately, had a difficult time sitting up in the patrol car as he is a 6’2 man weighing in at a solid 300 pounds.  Morris became agitated and confused as to why the police arrested him when he was the person that called the police to report the incident.

The officer’s testified that when transporting Morris to the police station for booking, Morris laid on his side in the back seat and refused to sit up, complaining of discomfort.  The officers had to pull over their cruiser at one point because of Morris’ continual complaint of discomfort.  The officers instructed Morris to sit up and he could breathe better.  Morris refused to do so and began to call the officers names.  At one point, Morris decided it would be in his best interest to spit at the officers.  Morris tried to explain to the officers that he had breathing problems, his back hurt, and that is why it took him a little while to get out of the police car.  It took the officers 20 to 30 minutes for the officers to remove Morris from the vehicle.  Once removed, Morris was cooperative with the officers.

Morris was indicted on two counts of aggravated assault, two counts of endangering children, and one count of obstructing official business.  Morris was found not guilty for the aggravated assault and endangering children.  The jury, however, found Morris guilty of obstructing official business.  The judge sentenced Morris to 30 days in the county jail.  Morris appealed.

Obstructing official business as defined in R.C. 2921.31(A) has five essential elements: 1) an act by the defendant, 2) done with the purpose to prevent, obstruct, or delay a public official, 3) that actually hampers or impedes a public official, 4) while the official is acting in the performance of a lawful duty, and 5) the defendant so acts without privilege.  Brooklyn v. Kaczor, 2013-Ohio-2901.

The state argued that Morris’ refusal to exit the vehicle on his own, lying down and spitting in the back seat of the police vehicle, and verbal outbursts constituted the offense of obstructing official business.

The appellate court found that the officers’ testimony, even viewed in light most favorable to the state, was, as a matter of law, insufficient to support a conviction for the criminal offense of obstructing official business.

Refusal To Exit Vehicle & Verbal Outbursts

Looking at Morris’ refusal to exit the police vehicle, the appellate court found that case law has required more than a mere failure to obey or respond to a law enforcement officer’s request in order to support a conviction of obstructing official business.  Garfield Hts v. Simpson, 82 Ohio App.3d (1992).

Likewise, the appellate court found Morris’ verbal outburst while in the backseat of the police car were offensive and ill-advised.  However, it was still insufficient to support a conviction.  Courts have required evidence reflecting “affirmative acts, not oral statements or inaction, which hamper or impede a public official in the performance of lawful duties.”  Dayton v. Rodgers, 60 Ohio St.2d 162.

The appellate court noted that there was no testimony from the officers that Morris engaged in affirmative acts such as struggling with, kicking, or striking the officers, stiffening his body, or otherwise physically resisting the officers’ efforts to remove him from the vehicle.  Further, even if there were such an affirmative act, the state must prove not only that the act was committed with an intent to obstruct the officers but also that the defendant succeeded in actually hampering or impeding them.  State v. Crowell, 2010-Ohio-4917.

Obstructing official business is established where there is both an illegal act which quickens the duty of the police officer to enforce the law, and interference with intent to impede that enforcement.  Middleburg Hts. V. Szewczyk, 2008-Ohio-2043.

Viewing the officers’ testimony in light most favorable to the state, the appellate court found there was no necessary convincing evidence that Morris refused to exit the police vehicle on his own with an intent to impede the officers’ duty.

Lying Down In The Back Seat & Spitting

Looking at Morris’ lying down in the back seat and spitting, the appellate court noted that they consistently required conduct substantially more egregiously obstructive than Morris’ conduct in order to establish the element of an affirmative act done with an intent to impede law enforcement.  see State v. Vargas, 2012-Ohio-2768; State v. Wilson, 2011-Ohio-6886; State v. Williams, 2004-Ohio-4476.

Distinguishing the above cases from Morris’ case, the appellate court found that the conduct of lying down in the back seat of the police vehicle does not rise to the level of obstruction required for a conviction.  Moreover, the evidence does not establish Morris was lying down on the seat with an intent to impede the officers’ duty.

In addition, the appellate court found Morris’ spitting as being noxious, but it did not interfere with the officers’ duty of transporting him to the police station.

The appellate court noted that the evidence presented by the state at most reflects a highly agitated grandfather who believed he was aggrieved and his resultant lack of cooperation.  Based on all of the evidence, the appellate court held this is insufficient to support a conviction for the serious matter of obstructing official business.

Lesson learned…don’t mess with a pissed off grandfather!

How Possession Of A Minor Misdemeanor Amount Of Marijuana Does Not Lead To Probable Cause To Arrest Or Search An Individual

One of the time honored traditions of being an attorney is waiting your turn to have your case called before the court.  Where an attorney’s name is on the waiting list can determine whether that attorney is looking at a 10 minute hearing or being stuck in the courtroom for hours on end.

During a court appearance the other day, I was about midway down the list for cases being called.  No big deal for me though, especially in the world of smartphones.  I was able to catch up on emails and get a couple games of solitaire in before my case was called.  However, on this particular court appearance, I witnessed something that I thought would not happen.

A defendant was before the court for a probation revocation.  Listening to the court, it was very clear that the court was not happy with the defendant not even doing one thing to satisfy his probation requirements.  The unpleasantness led to the defendant being sentenced to 30 days in the local county jail.  Now this defendant was in his street clothes for this hearing and had not been picked up by police prior to this hearing.  And wouldn’t you know it; the defendant had some marijuana in his pockets.  Given that he was going jail, having illegal contraband on him was a big no-no!

Now in this day and age, a person having small amounts of marijuana on their person is really no big surprise at all.  I am willing to bet that a majority of people you converse with on a daily basis has marijuana on their person or in their vehicle.  Hopefully those individuals would be smart enough to remove the marijuana before entering a courtroom that is protected by law enforcement officers.

The thought or notion of individuals having small amounts of marijuana on their person leads us to State v. Grubbs, 2017-Ohio-41.

In Grubbs, Grubbs was a passenger in a vehicle that was pulled over due to the driver driving while under a license suspension.  After speaking with the driver, the stopping officer initiated a conversation with Grubbs to ascertain his identity.   Grubbs handed the officer his Ohio ID and informed the officer that he was legally blind.

The officer then had Grubbs step out of the vehicle.  Grubbs, by himself, walked to the rear of the passenger side of the truck then turned and took a few steps behind the truck towards the roadway.  The officer stopped Grubbs and guided Grubbs by the arm to the passenger corner of the truck.  It was there that Grubbs began to try to call individuals to come pick him up.  After his phone call, Grubbs just stood in place and waited for his ride.

The officer called for back-up to assist him with the stop.  While waiting for backup to arrive, the officer asked the driver if he could search his person and the driver consented.  The officer found pills and placed the driver under arrest.  When the requested backup officer arrived, the stopping officer moved onto Grubbs.

The officer approached Grubbs and asked Grubbs if he had anything on him that he was not supposed to have.  Grubbs in turn, asked why he was being searched as he did nothing wrong.  The officer responded to Grubbs question by informing Grubbs that he noticed marijuana flakes on his shirt.  Grubbs immediately denied this assertion.

The officer again asked Grubbs, “Do you have anything on you before I search you here?”  Grubbs replied, “Just arrest me, man.  Take my shit, put me in cuffs.”  As you would imagine, Grubbs was handcuffed and searched.  The officer found pill bottles in Grubbs’ pocket.  Grubbs was subsequently indicted on one count of aggravated possession of drugs.  Grubbs filed a motion to suppress the evidence seized in the warrantless search.

At the suppression hearing, both the arresting officer and Grubbs testified.

The officer testified to the following at the suppression hearing:

1)         He could smell marijuana within one foot of Grubbs.

2)        He observed a one-hit pipe by the driver’s right leg, marijuana residue on Grubbs’ shirt and bulges in Grubbs’ pockets which he could see were pill bottles.

3)        He inquired about the contents of Grubbs’ pockets and Grubbs “just said he had all kinds of shit in there.”

4)        After Grubbs got out of the truck, he had to be stopped from walking into the roadway.

5)         After the consent search and arrest of the driver, he searched the truck and found two marijuana roaches in the ashtray.

6)        He placed Grubbs in handcuffs as he believed that he had probable cause to search Grubbs because of the marijuana residue on his shirt.

7)         He was not arresting Grubbs, but handcuffed Grubbs to safely conduct the search.

8)        He had no cause to believe Grubbs was armed or dangerous.

Grubbs testified to the following:

1)         The officer asked what was in his pockets because the officer saw bulges in his pockets.

2)        When he got out of the truck, another officer told one of the officers that he had pills in his pocket and to watch him because he was going to throw them.

3)        He was on the phone to try to arrange for a ride and obtained a ride when the officer told him to get off of the phone.

4)        He did not have a chance to tell the officer that he had a ride.

5)         He was legally blind, but he could see objects and saw cars on the interstate.

6)        He was not going to wander out into the highway.

After hearing all testimony, the trial court granted the motion to suppress.  The trial court found that the officer did not have probable cause to arrest or search Grubbs because the officer did not have grounds to reasonably believe Grubbs possessed more than a minor misdemeanor amount of marijuana.  The court further found Grubbs’ statements to the officer prior to the search did not constitute consent to search Grubbs’ person.  Lastly, the trial court concluded that since the officer did not have a search warrant and none of the warrant exceptions applied, the search violated Grubbs’ Fourth Amendment rights.

The state filed a timely appeal.

Fourth Amendment Warrant Exceptions and Investigative Stop & Frisk

The Fourth Amendment to the U.S. Constitution and the Ohio Constitution, prohibit unreasonable searches and seizures.  State v. Emerson, 2012-Ohio-5047.  While the Fourth Amendment requires a search warrant based upon probable cause, there are specifically established exceptions to the warrant requirement.  Katz v. United States, 389 U.S. 347 (1967).

One exception to the warrant requirement is the investigative stop, which allows a police officer to stop a person if the officer has an objectively reasonable suspicion that criminal behavior has occurred or is imminent.  Terry v. Ohio, 392 U.S. 1 (1968).  The officer may then frisk the person for weapons if the officer has a reasonable suspicion that the person may be armed and dangerous.  Id.

During a traffic stop, an officer may order all occupants to step out of the vehicle pending completion of the traffic stop.  Maryland v. Wilson, 519 U.S. 408 (1997).  When a passenger is cooperative and gives no indication that he is armed or dangerous, an officer may not perform a protective frisk.  State v. Caldwell, 2000 Ohio App. LEXIS 4442 (Sept. 29, 2000).

The appellate court found that the officer had the right to stop the driver’s vehicle and the officer had the authority to order Grubbs out of the passenger seat.  The appellate court noted that Grubbs was cooperative and complied with all of the officer’s commands.  The appellate court further found that there was no evidence indicating that Grubbs had a weapon, that Grubbs was dangerous, and there was not any basis for the officer to believe that Grubbs was armed or dangerous.  The officer’s search of Grubbs was directed at discovering drugs, not weapons.  Thus, the appellate court found that the search cannot be justified under a Terry frisk analysis.

Probable Cause, Exigent Circumstances, and Minor Misdemeanor Searches

Probable cause exists if the facts and circumstances known to a police officer warrant a prudent man in believing the offense has been committed.  Henry v. United States, 361 U.S. 98 (1959).  A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.  Ybarra v. Williams, 444 U.S. 85 (1979).  In order to determine whether a police officer possessed probable cause to conduct a search of an individual, the appellate court reviews the totality of the circumstances known to the officer at the time of the search.  Beck v. Ohio, 379 U.S. 89 (1964).

Another exception to the warrant requirement is exigent circumstances, which generally include the necessity for immediate action to protect or preserve life or protect a governmental interest that outweighs the individual’s constitutionally protected privacy interest.  Mincey v. Arizona, 437 U.S. 385 (1978).  However, no search, even for exigent circumstances, can be conducted without probable cause.  State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49 (1985).  Exigent circumstances do not apply to misdemeanor offenses.  State v. Reining, 2011-Ohio-1545.

Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.  State v. Brown, 2003-Ohio-3931.  A police officer may briefly detain an individual for a minor misdemeanor offense and issue a citation, but the officer may not conduct a custodial arrest or a search of the individual, when none of the exception in R.C. 2935.26.  State v. Bradford, 2014-Ohio-5527.

R.C. 2935.26 provides:

(A)      Notwithstanding any other provision of the Revised Code, when a law enforcement officer is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the officer shall not arrest the person, but shall issue a citation, unless one of the following applies:

(1)       The offender requires medical care or is unable to provide for his own safety.

(2)       The offender cannot or will not offer satisfactory evidence of his identity.

(3)       The offender refuses to sign the citation.

(4)       The offender has previously been issued a citation for the commission of that misdemeanor and has failed to either appear for trial or plead guilty.

Looking at the evidence, the reason for searching Grubbs was because he had marijuana flakes on his shirt.  The officer testified that he believed that he had probable cause to search Grubbs because he had marijuana residue on his shirt.  No testimony was presented at the hearing that based on the officer’s training or experience prescription pill bottles are used to carry illegal drugs or that pill bottles are indicators of illegal drug possession.

The appellate court found that the officer conducted a search of Grubbs because he had marijuana flakes or residue on his shirt, which is a minor misdemeanor.  Thus, based on the totality of the circumstances, the officer did not have probable cause to search Grubbs.

Looking at R.C. 2935.26, the appellate court found that the only exception that could possibly apply in Grubbs’ case was subsection (A)(1) because Grubbs is legally blind.  However, the state did not argue this point and the evidence did not support such a finding.  Thus, the officer was not justified in searching Grubbs for a minor misdemeanor offense and exigent circumstances search is not justified since that exception does not apply to misdemeanor offenses.


Police may conduct a warrantless search of an individual with the individual’s voluntary consent.  Schneckloth v. Bustamonte, 412 U.S. 218 (1973).  Consent may not be coerced, by explicit or implicit means, by implied threat or covert force.  Id.  For, no matter how subtly the coercion was applied, the resulting consent would be no more than a pretext for the unjustified police intrusion.  Id.  Consent to search which is given following a claim of authority is not freely and voluntarily given, but is merely an acquiescence and an acknowledgment of authority.  Bumper v. North Carolina, 391 U.S. 543 (1968).

In Grubbs’ case, Grubbs challenged the officer’s question of whether he had anything on him that he was not supposed to have, by asking why he was being searched since he had done nothing wrong.  When the officer responded because Grubbs had flakes of marijuana on his shirt, Grubbs denied he did.  The officer then asked Grubbs, “do you have anything on you before I search you here?”  It was only then that appellee replied, “Just arrest me, man.”  “Take my shit, put me in cuffs.”

Based on the totality of the circumstances, the appellate court found that the officer’s questions and statements to Grubbs sent a message that Grubbs had no choice but to comply with the search, as the officer announced he would search Grubbs and acted as if he intended to search regardless of Grubbs’ response.  The officer clearly claimed the right to search without permission.  Further, Grubbs’ statements in response were merely a demonstration of acquiescence and submission to authority after he was told he was going to be searched.  Thus, Grubbs did not voluntarily consent to be searched.

Alright!  Talk about a legal primer for warrantless searches and seizures!  Great case with great analysis!

Right To Counsel For The Poor, The Rich, And The Somewhat Annoying

State v. Leonard, 2017-Ohio-211, read like an old country song about losing everything to the ex-wife, including your freedom.  Good thing for Leonard, he got his freedom back and his case was remanded back to the trial court.

In Leonard, Leonard charged with Domestic Violence Threats and appeared for his arraignment without counsel.  During the arraignment, the court asked Leonard if he could afford an attorney.  Leonard responded with “potentially.”

After Leonard’s response, the city prosecutor chimed in to notify the court that he looked up Leonard’s 2014 divorce decree and stated that Leonard might not qualify for a public defender because his annual income might be as high as six figures.  Without inquiring further, the trial court told Leonard that his case will be continued in order for him to retain an attorney.

Leonard appeared in court with private counsel on two separate occasions for pre-trials and at both hearings, Leonard’s counsel filed for continuances and for additional pre-trials.  These requests were granted by the trial court.  However, Leonard’s counsel withdrew from the case and Leonard found himself without an attorney for his next hearing.

At the new hearing, Leonard requested a public defender stating to the trial court that he was unable to hire new counsel.  The trial court briefly inquired Leonard on his finances and then assigned Leonard a public defender.  On his affidavit of indigency, Leonard stated that his income was $5,000 per month and his month expenses was $8,500 per month, to include a child support obligation of $4,300 per month.

Back for another hearing, Leonard’s public defender moved to withdraw from the case, stating that the Leonard did not meet the indigency requirements.  In addition, Leonard’s public defender notified the trial court that Leonard wanted a jury trial.  The trial court granted the public defender’s motion to withdraw from Leonard’s case and stated “We are not to that point yet” with regards to the jury trial.

On July 14, 2015, Leonard showed up once again for another pre-trial and without a lawyer.  At this hearing the following conversation occurred between the trial court and Leonard.

Court:  All right, sir, you have a new case of driving under suspension, and this was continued on the previous case for you to have a lawyer here.  Have you retained counsel?

Leonard:  I don’t have the resources, Your Honor.

Court:  I don’t believe you.

Leonard:  I’m sorry.

Court:  You’re facing – we have a bond report – have a seat, I want to see what your compliance with bond is.

Court:  If you don’t hire a lawyer, we are proceeding without a lawyer.  Case is set for trial August 19 at ten o’clock.

Leonard:  What if I don’t have the money?  I do not have it.  I’m ordered to pay from Judge Zemmelman.  I don’t know why the court doesn’t understand that.

Court:  You make too much money to qualify for the public defender’s office.  When the trial is, if you want to go without a lawyer, that’s up to you, I wouldn’t do it.  Bond is continued.

On the day of the trial, Leonard showed up without an attorney.  As the trial court began to explain the trial procedure, Leonard interrupted the trial court several times asking for a continuance.  Leonard’s continuances requests were based on his public defender failing to file a jury demand and that he never received the state’s witness list.  The trial court denied the continuances and made it known to Leonard that if he continued to interrupt court proceedings the court would find him in contempt.

The trial began and the prosecution called several witnesses, including Leonard’s ex-wife and their two children.  Leonard attempted to questions the state’s witnesses, but as the appellate court noted “Leonard appeared to be at a severe disadvantage.”  After the prosecution rested, Leonard called himself as his own witness.

Upon finishing his statement to the court, the trial court stated the following:

“Quite frankly, sir, you are one of the most abrasive acerbic persons that I have seen in this court.  To be around you is difficult.  You interfere with all proceedings; you try to control all proceedings.  It is incredibly difficult to be around you.”

The trial court found Leonard guilty of domestic violence threats and continued the case for a sentencing hearing.  Prior to the sentencing hearing, Leonard retained counsel and filed a motion for a new trial, asserting that his Sixth Amendment right to counsel was violated.  The state filed a response in opposition to Leonard’s motion arguing that Leonard waived his right to counsel.

At Leonard’s sentencing hearing, the trial court allowed arguments on Leonard’s motion for a new trial.  The trial court stated the following:

“Quite frankly, I find it telling that the retained counsel is now representing the defendant at this stage.  I urged him to have retained counsel at the trial, he chose not to do that.”

The trial court summarily denied Leonard’s motion and sentence Leonard to 10 days in county jail.  Leonard appealed.

Leonard assigned two assignments of error on appeal, but the appellate court only ruled on his first assignment of error surrounding his Sixth Amendment right to counsel argument.

Under the Sixth Amendment, a criminal defendant is entitled to full and fair representation at trial by counsel.  U.S. v. Ash, 413 U.S. 300 (1973).  When a defendant is unable to secure counsel using private funds, the state has a duty to provide such counsel.  Gideon v. Wainwright, 372, U.S. 335 (1963).  An indigent defendant is entitled to appointed counsel only in those prosecutions where a term of imprisonment could be imposed.  Argersinger v. Hamlin, 407 U.S. 25 (1972).

There are many factors that may impinge upon a defendant’s inability to obtain counsel, factors which may differ greatly from case to case.  State v. Tymico, 42 Ohio St.2d 39 (1975).  To make the right to assistance of court-appointed counsel a factual reality, the determination of need must turn, not upon whether an accused ought to be able to employ counsel, but whether he is in fact able to do so.  Id.

In order to determine whether a criminal defendant is “unable to obtain counsel” under Crim.R. 44, the trial court must “inquire fully into the circumstances impinging upon the defendant’s claimed inability to obtain counsel.”  Id.  When an accused is financially able, in whole or in part, to obtain the assistance of counsel, but is unable to do so for whatever reason, appointed counsel must be provided.  Id.

The appellate court found that Leonard repeatedly requested for appointed counsel.  They went on to find that Leonard insisted he was unable to independently obtain counsel, despite several attempts to do so, because he did not have sufficient cash for attorney’s retainer.  The record, however, indicated that the trial court failed to inquire fully pursuant to Tymcio as to the circumstances impacting Leonard’s ability to retain counsel.

Based on the case law and the facts, the appellate court held that the trial court failed to ensure that Leonard was adequately represented by counsel, and remanded the case back to the trial court for further proceedings.

Something tells me that Leonard really got underneath the trial court’s skin and he just could not stand the man any longer.  Hopefully the next go around works out for Leonard.