Fleeing Misdemeanor Suspect: Warrant or no Warrant?


U.S. Supreme Court Overturns An Appeals Court Ruling In Case Involving Fleeing Misdemeanor Suspect

The U.S. Supreme Court on June 23, 2021, decided the case of Lange v. California that questioned whether law enforcement personal needs a warrant to enter into the home of a fleeing misdemeanor suspect. Click here to read the case.

The facts:

Arthur Lange was driving around in a station wagon playing loud music and honking his horn when an officer noticed him and activated his overhead flashing lights. Lange did not stop and continued onto his driveway and entered his garage. The state of California argued that the officer was allowed to enter into the garage of Lange without warrant because he had failed to stop when the officer’s lights were activated, which constitutes a misdemeanor offense.

The officer then followed Lange into the garage and conducted field sobriety tests. Lange was charged with the misdemeanor of driving under the influence of alcohol and a low-level noise infraction. A later blood test showed that his BAC was more than three times the legal limit.

Lange filed a motion to suppress evidence of his intoxication that was collected after an officer entered into his attached garage without a warrant. The California appeals courts applied the categorical rule that police are always entitled to enter a home without a warrant when in the hot pursuit of a fleeing misdemeanor suspect. However, the Supreme Court overturned the appeals court ruling and remanded the case.


The majority opinion was written by Justice Elena Kagan, holding that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always justify a warrantless entry into a home. Justice Kagan went on to say that “A great many misdemeanor pursuits involves exigencies allowing warrantless entry. But whether a given one does so turns on the particular facts of the case.”


  1. Case-by-case basis.

    This exclusionary rule of having to obtain a search warrant for a fleeing misdemeanor suspect is fact intensive and should apply on a case-by-case basis. Officers must now consider all the circumstances in order to determine whether there is a law enforcement emergency. Some instances of good reason to enter without warrant are those “hot pursuit cases,” such as to prevent imminent harm of violence, destruction of evidence or escape from the home may justify the warrantless entry into a home.

  2. Time to spare.

    When an officer has time to get a warrant and it is not an emergency, they must obtain a warrant, even if the Defendant has fled.

  3. Fleeing felon rule intact.

    This new precedent does not, however, disturb the long-standing rule of police being allowed to enter into the home of a fleeing felon without a warrant. This was pointed out in the concurrence by Judge Kavanaugh to shine light on the differences between a fleeing misdemeanor suspect and felony suspect.

  4. Encouragement of suspects to flee.

    Justice Thomas in the concurrence stated that the exclusionary rule should not apply to evidence that is discovered by police while in pursuit of a fleeing misdemeanor suspect because it encourages suspects to flee. Further he stated that all precedents set thus far clearly disallow criminal defendants from using this exclusionary rule as a ‘shield against’ their bad conduct. Note: This however is not law, just food for thought.

Our experienced Dayton traffic and criminal defense lawyers at Holzfaster, Cecil, McKnight & Mues are here for you. We can assist you with better understanding of possible defenses to any criminal action! To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to helping you!


I want to thank Madeline Howell for her assistance in drafting this article. Madeline has completed her first year of law school at the University of Dayton School of Law. She has been interning with Holzfaster, Cecil, McKnight & Mues for the summer. Thanks again Madeline!

Is parental discipline a defense or an element of a crime under the Ohio domestic violence and assault statutes?


On February 19, 2020, the Ohio Supreme Court came out with the decision, State v. Faggs, Slip Opinion No. 2020-Ohio-523, where the Court affirmed the decision of the court of appeals and held that reasonable parental discipline is an affirmative defense to a charge under Ohio’s domestic violence and assault statutes.

What happened in the case?

The appellant, Faggs, was charged with one third-degree-felony count of domestic violence under O.R.C. § 2919.25(A) and one first-degree misdemeanor count of assault under O.R.C. § 2903.13(A). The incident that gave rise to these charges involved the seven-year-old son of Faggs’s live-in girlfriend. Faggs allegedly beat the boy after he acted out in school.

Faggs’s attorney argued during the bench trial that the allegations were exaggerated as Faggs’s conduct was merely “a reasonable and necessary exercise of parental discipline and corporal punishment.” The court found Faggs guilty of both charges.

On appeal, Faggs argued that the trial court had violated his constitutionally protected interest in raising and controlling his child by erroneously placing the burden of proving reasonable discipline on him. The appellate court affirmed the trial court’s decision because Faggs provided little authority as to why he should be afforded a full array of constitutional rights when he was only acting in loco parentis. The court further reasoned that “so long as the state was required to prove each element of the underlying offense beyond a reasonable doubt, treating reasonable parental discipline as an affirmative defense and placing the burden of proving that defense upon the accused does not violate due process.”

What did the Court do?

The Court was concerned with whether, under Ohio’s domestic violence and assault statutes, reasonable parental discipline is a component of the physical-harm element or whether it is an affirmative defense. Specifically, the Court was concerned with whether the state bears the burden to prove unreasonable parental discipline or if it is in the nature of an affirmative defense.

In analyzing the issue, the Court sought to clarify any confusion left by its decision in State v. Suchomski, 58 Ohio St.3d 74. In Suchomski, the Court provided an overly legalistic definition of “injury,” which resulted in confusion over who had the burden to prove the reasonableness of the discipline.

The Court applied a three-part analysis in clarifying any confusion left by Suchomski. The first part of the analysis highlighted that reasonableness is not an element of the offenses. The Court noted that its goal is to give effect to legislative intent. As such, since the legislature did not include a reasonableness requirement, but rather language to the effect of “regardless of its gravity or duration,” proof of unreasonable parental discipline is not a component of the physical-harm element.

The second part of the analysis focused on whether reasonable parental discipline is an affirmative defense. In Ohio, the two types of affirmative defenses are (1) “expressly designated,” O.R.C. § 2901.05(D)(1)(a), and (2) “involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence,” O.R.C. § 2901.05(D)(1)(b). After determining that O.R.C. § 2901.05(D)(1)(b) applied to the case at hand, the Court analyzed whether the three requirements were met. Those three requirements to qualify as an affirmative defense are (1) fit the definition of “excuse” or “justification,” (2) the justification must be “peculiarly within the knowledge of the accused,” and (3) the accused can fairly produce supporting evidence. The Court ultimately held that reasonable parental discipline met all three requirements under the statute to be considered an affirmative defense.

The third part of the analysis concerned whether the classification as an affirmative defense violated Faggs’s due process rights. The Court held that under O.R.C. § 2901.05(A), “once the state has met its burden of proof for all elements of a charged offense, the burden of proof, by a preponderance of the evidence, for an affirmative defense . . . is upon the accused.” Due to the extensive precedent suggesting that the classification comports with due process, as well as the choice of language used by the General Assembly, Faggs’s due process rights were not violated.

After considering the three parts, the Court held that reasonable parental discipline is an affirmative defense, the burden is on the accused, and the classification as an affirmative defense as well as the burden of proof are not unconstitutional.

What should you take away?

Under O.R.C. § 2901.05(A), the burden of proof concerning reasonable parental discipline lies with the accused. It is on the parent to prove a reasonable exercise of parental discipline and corporal punishment as an affirmative defense. This treatment of reasonable parental discipline as an affirmative defense does not violate the due process rights of parents to raise their children as it does not unconstitutionally shift the burden of proof. Click here to read the opinion.

PUBLISHERS NOTE: I want to thank Ashlyn O’Brien, a third-year law student at the University of Dayton School of Law, for all of her assistance in drafting this blog article. Excellent job Ashlyn!

Need help with a criminal defense case? Schedule an appointment online now.

New Expungement Law – Cleaning Up Your Record


Expungement In Ohio: What Is Eligibile To Be Expunged From My Record?

As of April 8, 2019, Ohio has switched up the rules on expungement once again, and made it easier for citizens to clean up their record. Expungement, however, is not a completely clean slate. According to Ohio law, expungement means that the records of arrest and conviction will be sealed from public access. An index will still be kept by the governmental agency, but those records won’t be accessible to the general public. It is important to note that DNA records will not be sealed in the ways that other records are, unless the conviction has been overturned. Additionally, you can request the sealing of records for more than one case in a single application, which will save you on application fees.


Per Ohio Revised Code Section 2953.32, the following can be expunged:

  1. 3 years after the final discharge if only one felony (This means 3 years after the completion of the sentence, probation, and  payment of fines, court costs, and restitution)
  2. 4 years after the final discharge if convicted of two felonies (This means 4 years after the completion of the sentence, probation, and payment of fines, court costs, and restitution)
  3. 5 years after the final discharge if convicted of 3, 4, or 5 felonies  (This means 5 years after the completion of the sentence, probation, and payment of fines, court costs, and restitution)
  4. 1 year after the final discharge after a misdemeanor (This means one year after the completion of the sentence, probation, and payment of fines, court costs, and restitution)
  5. See Ohio Revised Code Section 2953.32 for the exact language regarding bail forfeiture cases

Non-eligible Offenses

The following convictions cannot be expunged:

  1. convictions when the offender is subject to a mandatory prison term
  2. Sex offense convictions under §§ 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.321, 2907.322, or 2907.323, and former 2907.12
  3. Convictions of violence when the offense is a misdemeanor of the first degree or a felony (except assault and few others)
  4. Convictions of a felony in the first or second degree
  5. Traffic offenses such as speeding, OVI, or reckless operation under Chapters 4507., 4510.,4511., or 4549.
  6. Convictions on or after October 10, 2007, under 2907.07 (importuning) or similar local laws when the victim is under 18
  7. Other sex offenses where the victim was less than 16 years old
  8. Bail forfeitures in certain traffic cases
  9. multiple convictions of an identical offense

What happens

After an application is filed with the court, the court will then set a date for a hearing, and notify the prosecutor for the particular case. The prosecutor is allowed to file objections to the application, and must specify why those objections are being made. The court will then direct the probation department to make inquiries and written reports as to the applicant. If the conviction is for a violation of 2919.21 (nonpayment of child support), the probation department will also contact the child support enforcement agency to ask about the applicant’s compliance with paying child support. The court will then make a decision regarding the application, reports and objections filed, as well as the public interest. Pending criminal proceedings and other issues will also be taken into account.

If you have any questions, or would like to discuss expungement under this new law, please contact Holzfaster, Cecil, McKnight & Mues, LPA.

Marsy’s Law – Expansion of Victims’ Rights


Victims Of Crime Can Now Petition Court To Be Heard And Participate In Proceedings Under Marsy’s Law

Marsy’s Law, or Issue One from the ballot in November 2017, is an expansion of victims’ rights in regards to notification and to be more involved in the criminal process. Additionally, who is classified as victim of a crime has been greatly expanded. Most importantly, victims of crimes may now petition the court via a motion or appellate review to make sure they are heard. This doesn’t mean that victims are now in control of the criminal court proceedings, but they are given the right to be heard and to participate in the proceedings. The law officially took effect February 5, 2018.

Who is protected under Marsy’s Law?

Marsy’s Law expands the traditional definition of victim to one that is more broad. Under the current law, victim only encompasses the person injured by certain types of crimes, as identified as victims in police reports. Now, the definition includes the person directly and proximately harmed by a criminal offense. For example, the parents of a child victim would be covered under this law, and gain the same rights to petition and be notified.

What is Gained under Marsy’s Law?

Under this new law, victims gain:

  1. The right to be informed of proceedings in writing
  2. The right to assert the rights described in the act via representative, and may appeal decisions based on those decisions
  3. The right to be treated with fairness and respect for the victim’s safety, dignity and privacy
  4. The right, UPON REQUEST, to reasonable and timely notice of all public proceedings
  5. The right to be present at the above proceedings
  6. The right to be heard in public proceedings that involve release, pleas, sentencing, disposition, or any other proceeding
  7. The right to speak with the prosecutor, upon request
  8. The right to proceedings free from unreasonable delay and a prompt conclusion of the case
  9. The right to refuse an interview, deposition, or other discovery request by the accused, except as described in the Ohio Constitution, Article 1, Section 10
  10. The right to full and timely restitution from the offender
  11. The right to reasonable protection from the accused, or any person acting on behalf of the accused
  12. The right UPON REQUEST to reasonable notice of escape or release of the accused

Who was Marsy?

Marsy Nicholas was a University of California Santa Barbara student who was stalked and killed by an ex-boyfriend in 1983. One week after her murder, Marsy’s family ran into the murderer at the grocery store, as he had been released on bail. After this traumatic event, Marsy’s brother, Dr. Henry T. Nicholas III, chose to purse an initiative to protect victims and their families from what his family experienced after his sister’s death.

Which States have Marsy’s Laws?

As of the writing of this article, Marsy’s Law has already been passed and enacted in California, Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, and South Dakota. Other states are currently targeted to bring Marsy’s law to those states.

EDITOR’S NOTE: I want to thank our law extern, Lily Mann, for writing this article. Lily will be completing her JD degree from the University of Dayton School of Law in 2020. Nice job Lily!

For More Information, Check out the Links Below:

For the full text, see Article I Section 10a of the Ohio Constitution:

Ohio Introduces Reinstatement Fee Amnesty

Who Is Eligible For Driver’s License Reinstatement Fee Reduction?


House Bill 336 creates a six-month driver’s license reinstatement fee amnesty reduction and waiver for offenders whose driver’s license has been suspended for certain violations.

The amnesty/reduction only applies to a driver’s license or permit suspension; it does not apply to a commercial driver’s license or commercial permit suspension.

The Ohio Bureau of Motor Vehicles will determine eligibility based on the specific qualifying offense contained in the Ohio Revised Code.

In order to be eligible for the driver’s license reinstatement fee reduction:

  1. Applicants must have completed all court-ordered sanctions related to the eligible offense other than payment of any reinstatement fees.
  2. At least 18 months must have passed since the end of the period of the suspension ordered by the Court.

Those able to provide proof of indigence will qualify for complete amnesty of reinstatement fees. House Bill 336 defines “indigent” as a person who is participating in the supplemental nutrition assistance program (SNAP) administered by the Department of Job and Family Services pursuant to Section 5101.54 of the Ohio Revised Code.

To apply, complete BMV form 2829, a BMV reinstatement fee amnesty application. You may obtain the form at your local Deputy Registrar, online at www.bmv.ohio.gov or it can be mailed to you by calling (614) 752-7500. Applications must be received or postmarked by July 31, 2019 to be eligible.