The Perils of Pleading No Contest

There are four pleas an Ohio criminal defendant can enter to a complaint or indictment: (1) not guilty, (2) not guilty by reason of insanity, (3) guilty and (4) no contest.  Many people believe the correct thing to do when they are of the belief they have actually committed the crime is to simply plead no contest.  In my experience defendants are not quite sure why this is the case other than perhaps friends and family members advised them that it is the correct course of action.  Hey, your not pleading guilty, and it gets the case over with, right?

Pleading no contest is often the correct thing to do, but an interesting appellate decision in State v. Martin, 2013-Ohio-5050 shows why this might not always be the best idea.  Before delving into the specifics of Martin, let’s first address the theory behind no contest pleas and why defendants may want or need to enter that particular plea.

A plea of no contest is essentially this: you as the defendant are not going to contest the factual allegations as stated on the face of the charging instrument (complaint or indictment), but you are not admitting your guilt, either.  If the face of the complaint or indictment contain all of the necessary elements of the offense, and thus providing a factual basis for the charge, then the court will proceed to find you guilty.  If the charging instrument is deficient for some reason (e.g., it fails to state an essential element of the charge), the court will have to find you not guilty.  Again, in theory, the idea is that you are simply not contesting the allegations, it is not as if you are acquiescing in state’s request to convict you.  While defective indictments/complaints are not necessarily uncommon, they are hardly something criminal defense attorneys encounter daily.  While we always review the indictment or complaint for legal sufficiency, it’s rare that you hit the jackpot.

So, the logical follow-up question for the layperson is, “if the judge is most likely going to find me guilty anyway, what is the purpose in pleading no contest?”  In truth, there are a few important reasons aside from the fact the indictment might fail to adequately charge a crime.  First, if your conduct resulted in damages to another person (e.g. an OVI crash), it is important to plead no contest so that your criminal conviction cannot be introduced against you in a subsequent civil trial.  If you plead guilty, the plaintiff in the civil suit can introduce a certified judgment of conviction at trial to prove that you were in fact driving impaired when you crashed.  Because you admitted guilt in the OVI criminal case, you cannot later deny that you were in fact drunk.  However, by pleading no contest, the plaintiff in the civil suit would retain the burden of having to prove that you were a drunk driver when you caused the accident and damages to the other party.

Another common reason, and perhaps the most important for criminal practitioners, is to preserve for appeal an objection to the trial court’s pre-trial rulings (motion to dismiss, motion to suppress evidence).   For example, if the court overrules a motion to suppress evidence, a defendant must plead no contest in order to appeal that decision.  If the defendant pleads guilty, by making a complete admission of guilt, he or she waives any right to later claim the trial court erred in its decision not to suppress the evidence.  Nobody cares if the cops violated your fourth amendment protections when you freely admit you are guilty.  Remember, when a court suppresses evidence it is not declaring the defendant is innocent of the crime.  Rather, the court merely prohibits the state from using the illegally obtained evidence against you in its effort to prove your guilt.

Now that we’ve engaged in a macro-level refresher on no contest pleas, let’s take a look at the Martin decision and why it may be a bit of a pit fall for criminal practitioners.  The defendant in Martin was charged with felony domestic violence (DV), which essentially requires the accused to “knowing cause or attempt to cause physical harm to a family or household member.”  Martin argued in the trial court that the victim, his step-sister, was not a “family or household member” as that term is defined under statute.  The defendant and the state both submitted briefs to the trial court regarding their respective legal positions.  After considering the arguments of both sides, the trial court issued a written decision stating how it intended to instruct the jury as to the definition of “family or household member,” and without going into the minutia here, let’s just say it was adverse to the defendant.  Based upon the trial court’s written decision, the jury instructions it intended to provide at trial was certainly going to allow the jury to find beyond a reasonable doubt that a step-sister falls within the definition of a “family or household member.”  Upon seeing the writing on the wall the defendant decided to cut-bait, plead no contest to the DV and have his legal argument decided by the court of appeals.  Or so he thought.

The Second District Court of Appeals quickly overruled his argument that the trial judge erred in finding him guilty of the DV because the victim was not a family or household member under law.  The appellate panel determined that by pleading no contest to the offense of domestic violence, the defendant did not contest the factual allegations in the complaint, including that the victim was a “family or household member.”  The defendant can’t first admit that she is a family or household member at the trial level and then claim she wasn’t when the case is on appeal.  If the defendant wished to contest that issue, he had to have a trial and argue that the state failed to prove that essential element of DV.

So, where does this leave us as criminal practitioners?  Aren’t there many factual allegations contained in indictments that we essentially admit upon a no contest plea after the trial court overrules a pre-trial motion?  The answer is yes, of course.  The difference between this situation and a case where the judge fails to suppress evidence or dismiss a case for violating the right to speedy trial boils down to nature of what was ruled upon by the lower court.  When the court determines the police did not violate the Fourth Amendment, he is ruling on something outside the four corners of the indictment.  The State does not alleged in the charging instrument that police acted constitutionally when they discover a defendant’s heroin.  Therefore, when the Defendant enters a no contest plea to the possession of heroin charge, while not contesting he was in possession of the drug, he is not admitting to the constitutionality of the search, thus preserving that issue for appeal.  The corollary of the Martin case for our heroin hypothetical would be if the defendant was contesting that substance was actually heroin at all.  That is a factual allegation in the indictment.  If the Defendant pleaded no contest to the indictment, he could not later argue on appeal that the court erred in finding him guilty because the substance recovered was not actually heroin.  The no contest plea admitted that fact.

While this was certainly a strange case in some respects, it does make logical and legal sense.  And this case is a helpful reminder that criminal defense attorneys must be aware of what they are preserving on appeal.  If you want to argue a fact that is alleged in the indictment, a no contest plea will foreclose that possibility.

 

Posted by Charles W. Morrison on November 20, 2013.

 

 

 

Police unlawfully searched car passenger’s purse.

In a great win for the Fourth Amendment, the Second District Court of Appeals upheld a trial court’s ruling that suppressed evidence obtained as the result of the search of a car passenger’s purse.  In State v. Caulfield, the defendant was a front-seat passenger in a car that was pulled over when a member of the Montgomery County, Ohio sheriff’s department noticed the license plate was completely covered in snow and, therefore, obstructed from viewing (which is a no-no).  Upon effectuating the traffic stop, the officer ran the driver’s information through the LEADS system (a database that provides real-time information to law enforcement regarding persons they encounter).  The LEADS system indicated the driver had a suspended license and an active warrant for his arrest.

The officer then arrested the driver on the outstanding warrant and subsequently received his consent to search the vehicle he was driving.  In the meantime, a second officer that had arrived on the scene approached the defendant and instructed her to exit the vehicle so that he may perform the search authorized by the driver’s consent.  When the defendant attempted to bring her purse with her as she exited the car, the officer instructed her to leave the purse inside the car on the passenger seat.  This is common for the police to do, as it is much easier to justify searching objects within a car.

Although the officers testified at the hearing that the defendant had also provided them consent to search her purse, the trial court found the defendant’s contradictory testimony credible, and made a factual finding that she did not consent to the warrantless search.  And, as a lesson to all readers, never provide consent to a search of your property, especially if you know the police are going to find something you would rather they don’t.  And Caulfield’s refusal to provide consent paid off in her case (if she were even asked) – the police ultimately located various drugs and drug paraphernalia in her purse and she was escorted to the pokey in short order.

So, if the trial court found that the defendant had not consented to the search, under what theory did the state appeal the trial court’s ruling?  The state also argued on appeal that the search was lawful as a search incident to arrest of the driver, and that the search was reasonable for “officer safety.”  Under modern Fourth Amendment jurisprudence, if the police effectuate a lawful custodial arrest, they are permitted to perform a search of the person arrested for weapons or contraband, as well as areas within the immediate vicinity of the arrest to ensure the defendant does not grab a weapon or destroy evidence.

The search-incident-to-arrest exception also extends to cars in which arrested persons are or were recently located.  However, the arrested person must actually be able to reach the interior of the car in order for that exception to apply.  Here, the driver was already handcuffed and placed in the police cruiser before the officers searched the inside of his car. It would have been quite a feat for him to grab a weapon from Caulfield’s purse from the back of the cruiser.  Nonetheless, with a straight face, the government actually argued that the search of the purse was necessary for officer safety as they arrested the driver.  Luckily, the appellate panel here correctly followed the Supreme Court’s decision in Arizona V. Gant, which explains that in order to invoke the search-incident-to-arrest exception, the person arrested must actually be able to reach places officers fear may contain a weapon.  Yes, sometimes logic does win out.

There was one final hurdle for the defendant, though: what effect did the driver’s consent to search his car have on the situation? Could that justify the search of the purse?  The answer was obviously no.  The appellate court found that the driver’s consent to search the interior of his car did not extend to the passenger’s purse located within the car (at officer direction, remember).  In order for consent to be lawful, the person providing the consent must have the authority over the area to be searched.  In other words, just as you can’t consent to the search of your neighbor’s house, the defendant’s male accomplice in this case was without authority to provide police consent to search her purse.

In summation, the Second District properly found that no justification existed for the search of an innocent passenger’s purse.  Just because she was riding around with some guy that had an outstanding warrant and failed to properly display his license plate, police cannot simply decide they are going to search her personal property.  I’m sure this was news to the police as they are not used to being told “no,” whether it’s by citizens or courts.

Published by Charles W. Morrison on August 3, 2013.