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.

 

 

 

Search of Car Violates Fourth Amendment

Anyone who has practiced criminal law, and I’m suspecting many ordinary citizens as well, know the all-to-familiar story where a police officer conducts a routine traffic stop for a relatively minor violation and somehow it turns into a full-blown search of the car.  How does this happen?  Why does failure to use a turn signal at least 100 feet from the turn, or having a broken taillight, eventually result in a felony arrest.  Police normally effectuate the traffic stop with the intent being that he or she ultimately wants to search the car, and they take particular steps to reach that goal.  One of the most common ways the officer gets to search is by obtaining the consent of the driver.  In one of the most confounding questions ever pondered by man, the precise reason that people voluntarily allow the police to search a car in which they have drugs hidden is beyond me.  Nonetheless, it happens all the time.  So, let’s address this issue.

Police have the right to make a traffic stop whenever they witness a traffic violation.  The detention of the driver is a seizure under the Fourth Amendment and therefore is subject to the “reasonableness” requirements.  I.e., the stop can only last as long as is reasonably necessary and must be performed in a reasonable manner.  Once the reason for the traffic stop has ceased to exist (the officer issued the citation), there is no further grounds under which the driver could continue to be detained.  Therefore, the police will have to then show either probable cause to believe that a crime is or has been committed, or at least reasonable suspicion that “crime is afoot” to continue the seizure of the driver in order to investigate.  Or, the police can simply make a request that the driver allow the officer to rummage through their personal property.  Consent is an exception to the Fourth Amendment and the police do not have to have any independent justification.  If you consent, the police are allowed to search, period.

However, what happens when the consent is given only AFTER the police no longer has the right to seize driver, because the traffic citation has been issued and the traffic stop is over? The Second District Court of Appeals correctly ruled that the consent is not valid in State v. White, 2013 Ohio 3027.

The defendant in White was pulled over for a broken taillight after the officer earlier witnessed some unusual behavior on the part of the driver.  A park ranger noticed the defendant sitting in her car in the parking lot of a local metro park.  The officer observed the defendant hunched over the console of the car, and upon her noticing the officer driving by, she popped-up and blurted out a “common epithet.” The decision doesn’t say what epithet she shouted or how the officer possibly heard it from inside his cruiser, but I digress.  The officer then watched as the driver exited the vehicle and walked into the woods, a common endeavor by those that frequent such places.  The officer was nonetheless curious and continued monitoring her behavior.  A short time later she returned to her car and pulled out of the park.  This is when the officer observed that she had a broken taillight and decided it was his chance to pounce.

The officer stopped the vehicle and requested her license and registration.  The officer also called in back-up, who stood on the opposite side of the car, essentially “flanking” the car.  When the information came back that she was valid and had no outstanding warrants, the officer issued her a verbal warning for the taillight – as it was never the reason for the stop to begin with, he wanted to search her and the car.  The officer testified at the suppression hearing that she seemed “nervous,” and her hands were shaking during the stop.  After issuing the warning, he then asked if she would answer a question.  He inquired as to whether she had anything illegal in the car and she responded, “not to my knowledge.” He then asked if he could search the car and she said yes.

The appellate panel held that because her continued seizure was illegal once the traffic stop had been completed, her consent was the product of a Fourth Amendment violation and was invalid.  Therefore, the heroine and marijuana pipe found within the car had to be suppressed. The State obviously argued that under the totality of the circumstances, a reasonable person would have felt free to leave and that she had provided valid consent to search, something people do all the time.

In one of the great myths involved in criminal law, the state loves to argue that a reasonable person would feel free to leave when being asked questions by law enforcement.  Common sense and reality belie this claim as almost no one ever feels comfortable telling an officer to “just move along, nothing to see here, sir.”  And, if someone does ignore an officer, they are usually charged with obstruction of justice or some such nonsense. However, when trial and appellate courts agree that a person “felt free to leave” and could have unilaterally decided the end the encounter with the officer, then there is no seizure under the Fourth Amendment, and no justification is needed to continue to engage the citizen.

In upholding the trial court’s decision to suppress the evidence, the appellate panel cited State v. Ferrante, quoting that “[a] police officer’s request for consent to search a vehicle stopped for a traffic violation is valid if it is made, and voluntary consent is obtained, during the period of time reasonably necessary to process the traffic citation; in other words, while the driver is lawfully detained for the traffic violation.”  If the consent is obtained only after the reason for the traffic stop has ended, as was the case here, the consent is invalid unless the government can then prove that the consent to search was not the product of the illegal seizure, but rather an “independent act of free will.” If the consent is obtained during the time it takes to issue the citation, when the officer has the right to detain the driver, the state need only show that it was voluntarily given and not because they were coerced.

In short, because the police could not point to any objective facts that gave rise to a reasonable suspicion that crime was afoot, once the traffic violation was over, they had no further justification to detain the driver.  The continued detention of the driver was unconstitutional at that point. When the driver then consented, that consent was presumptively invalid unless the state could prove that it was not the product of the illegal seizure, but rather an act of free will.  The trial court found that the consent was in fact the product of the illegal detention and not the driver’s free will.  It found that a reasonable person in this driver’s situation would not have felt free to leave; likely because there were two cruisers involved and the car was ‘”flanked” by the cops.  Would you have felt comfortable saying, “I know you want to ask me some questions, but I’m leaving now, thanks”?  Or, would you have done as every other person does: stay at the scene until the police decide they are done with you?

Here, both the trial and appellate courts understood that this defendant could not have felt free to leave under the totality of the circumstances, and therefore, the consent was invalid.  When the officers had no independent justification to search, the evidence had to be suppressed.  The lesson in all of this is that you should not consent to a search!  Change one fact here or there and this case would have come out a very different way.  In fact, one appellate judge dissented and would have overruled the trial court’s decision to suppress the evidence.

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