Archive | November, 2012

Limited Information on Attorney Bills Should Be Disclosed Under Ohio’s Public Records Law.

The Ohio Supreme Court has held that information on itemized attorney-billing statements that was not protected by the attorney-client privilege should be disclosed under Ohio’s Public Records Law.

The case is State ex rel. Anderson v. Vermilion, Slip Opinion No. 2012-Ohio-5320.

The former mayor of Vermilion believed that the annual legal fees expended by the new administration far exceeded the fees incurred during her administration.  She made several records requests to permit public scrutiny of the city’s expenditure of funds for legal services.

The city acknowledged its receipt of the request but denied it on the basis that the requested legal bills are exempted from disclosure by the attorney-client privilege.

The Ohio Public Records Law, R.C. 149.43(A)(1)(v), excludes “[r]ecords the release of which is prohibited by state or federal law” from the definition of “public record.” This includes records covered by the attorney-client privilege.  The attorney-client privilege covers confidential communications between attorneys and their clients pertaining to the attorneys’ legal advice.

In other cases, the Supreme Court has held that the narrative portions of itemized attorney-billing statements containing descriptions of legal services performed by counsel for a client are protected by the attorney-client privilege.  This is generally because the itemized narrative can provide information on legal issues and concerns facing a client.

The Supreme Court held that under “the Public Records Act, insofar as these itemized attorney billing statements contain nonexempt information, e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services, they should have been disclosed . . .”  The court instructed that the privileged information on the bills should be redacted and any remaining information released.

The city’s best argument was that the privileged information in the statements was “inextricably intertwined” with the non-privileged information, thereby making the entire bills privileged and exempt from the public records law.  The court rejected this argument, noting that other government entities have complied with the Public Records law by providing non-privileged information – such as time, rates, and billing amounts – from legal bills.



Search of Cell Phone Prohibited by Ohio Supreme Court Not Followed by Kansas Court

On the Stockycat Blog, I note a Kansas Court of Appeals decision that declined to follow the Ohio Supreme Court on whether police may search the contents of a cell phone incident to an arrest without a warrant.

The case is STATE OF KANSAS v. TOMMY RAY JAMES, No. 106,083 (November 9, 2012).

The Defendant was convicted of possession of marijuana with the intent to sell and other related offenses.  He was sentenced to 30 months in prison.

The defendant was stopped while driving his car because he had a headlight out.  The deputy smelled the odor of alcohol coming from the vehicle and the defendant later admitted he had been drinking.  He was arrested.  A search of the vehicle revealed a plastic bag containing approximately a half pound of marijuana. The defendant told the Deputy that the marijuana might belong to his brother. The Defendant suggested that he could call his brother and said that he was “pretty sure” the number was in his cell phone. The defendant, who was in handcuffs, then allowed the Deputy to retrieve the cell phone from his pants pocket. The deputy asked “are there going to be any text messages on here relating to drug sales?”  The Defendant said no.

The Deputy proceeded to look at the cell phone and found incriminating text messages:  “U got green I will meet U somewhere;” “Hey T-Ray this is Cotie. U got a 20?”

The defendant argued that the police violated his constitutional rights under the Fourth Amendment to the United States Constitution by searching the text messages on his cell phone without a warrant. In response, the State contends that the search of the text messages was part of a valid search incident to arrest.

My views on this issue can be found in this law review article.

The court noted that the scope of a search incident to a lawful arrest extends to containers found on an arrestee’s person. The court relied on United States v. Robinson, 414 U.S. 218 (1973), a case where the Supreme Court found that a law enforcement officer had the right to inspect a cigarette package found on an arrestee’s person incident to a lawful arrest.  The court found that “the weight of authority applies Robinson to cases involving the search of a cell phone— including the viewing of text messages—seized from an arrestee incident to arrest.”

The court did note that “there are jurisdictions that have found searches of cell phones incident to arrest to be illegal.”  In reviewing the Ohio case on this issue, State v. Smith, 124 Ohio St. 3d 163 (2009), the court acknowledged that the Ohio Supreme Court has held that a warrant was necessary to search a defendant’s cell phone because a cell phone is not a container “capable of holding other physical objects.” The court said in regards to this decision:  “We do not necessarily agree with the premise that the information kept on a cell phone should be treated differently than information written on a piece of paper found on an arrestee’s person.”

The court addressed concerns about the privacy implications of the decision:

The issue in dispute is not whether an individual has a reasonable expectation of privacy in the text messages found on his or her cell phone. Likewise, the issue in this case does not involve the recovery of sophisticated data from a cell phone. Rather, the issue presented is whether the scope of a search incident to a lawful arrest includes text messages contained in cell phones found on an arrestee’s person.

We recognize that many cell phones, tablets, and similar electronic devices are capable of storing a wealth of personal information. But we find that the Fourth Amendment and the exceptions to the warrant requirement adequately protect such information from unreasonable search and seizure. Accordingly, we conclude that as part of a search incident to arrest, it is reasonable for a law enforcement officer to view the text messages contained in a cell phone found on an arrestee’s person for evidence probative of criminal conduct. (Citations omitted.)

The court rejected the defendant’s other arguments challenging his conviction and affirmed his sentence.


Plea is Valid Even When Sex Offender Should Be Classified under Megan’s Law, Not Adam Walsh Act

The Ohio Court of Appeals for Miami County has held that a defendant may not be classified as a sexual offender under the Adam Walsh Act if his crime occurred before the effective date of the Act.  Instead, the defendant should have been classified under Megan’s Law.

The case is State v. Cruea, 2012-Ohio-5209.

The defendant had been indicted on multiple felony sex crime charges.  He pled no contest to one count of rape and two counts of Gross Sexual Imposition and was sentenced to eight years in prison.

One of the arguments raised on appeal by the defendant was that the trial court failed to properly advise him with respect to how his no contest plea would affect his sexual offender reporting requirements.  Specifically, the defendant argued that the trial court failed to advise him of his specific reporting responsibilities once he was designated as a sexual offender.

The trial court incorrectly designated the defendant as a Tier II sexual offender under the Adam Walsh Act.  This was incorrect because the rape occurred before the Adam Walsh Act took effect.  In a previous decision, the Ohio Supreme Court had ruled that constitution prohibits the application of the Adam Walsh Act to any sex offender who committed the underlying sex offense before the Act’s effective date.

Instead, the defendant in this case should have been classified under Megan’s Law, which was in effect at the time of the offense.  Under Megan’s  Law, a sex offender classification hearing must be held to determine if a defendant convicted of a sexually oriented offense has a community reporting responsibility.   If a defendant is classified as a sexual predator, he would have community reporting responsibilities.  If a defendant is classified as a habitual sexual offender, the trial court has the discretion to make the defendant subject to community reporting responsibilities.  Finally, under Megan’s law, if the defendant is classified as a sexually oriented offender, the defendant would not have any community reporting duties.

In this case, the trial court correctly informed the defendant during his plea hearing that “based upon your classification status, the Sheriff may have to – may be required to notify victims, neighbors, schools, churches and other institutions of your name, address and the offense.”  Accordingly, the plea hearing did not violate any of the Defendant’s rights and the guilty finding was affirmed.  The case was remanded for a new a sex offender classification hearing under Megan’s law.


Blue Book Value of a Car is Not Sufficient Basis for Restitution Order

The Second District Court of Appeals in Montgomery County has held that an award of restitution for Unauthorized Use of a Motor Vehicle cannot be simply based on the Blue Book value of the car.

The case is State v. Kennedy, 2012-Ohio-5215.

The Defendant was charged with grand theft auto.  As part of a plea deal, he pled no contest to a lesser-included misdemeanor offense of Unauthorized Use of a Motor Vehicle.

The pre-sentence investigation report contained the following in the victim impact statement under the heading “Economic Loss”: “$1,660.  This amount represents the Kelly Blue Book value of [the victim’s] 2000 Ford Taurus.  This information has been verified.”

Based on this information, the trial court ordered the Defendant to pay restitution in the amount of $1,660.

The court reversed the order of restitution.  The court said,

In the case before us, we do not know where the information concerning the amount of the victim’s loss came from other than that it may have come from the “Kelly Blue Book,” and it “has been verified.”  Elsewhere in the pre-sentence investigation report, it is stated that the victim “stated he never returned the vehicle.” 

The court noted possible problems with relying on the Blue Book Value of the car.  In particular, the court noted that the “Blue Book values depend upon the condition of the vehicle.”  In this case, the trial judge did not hear any evidence about the condition of the vehicle and the pre-sentence investigation report included statements that the car “didn’t work,” and “was a piece of junk.”

The court was also concerned that due process rights were violated because the defendant “never had an opportunity to rebut this at a hearing, although the pre-sentence investigation report quotes him as saying that ‘the victim and her friend took the vehicle while he was in jail and junked the car.’”

Because the restitution order was not supported by “competent and credible evidence at a hearing.” The matter was remanded for a new restitution hearing.



OH SCT Sets Rules for Use of Court Records to Prove Prior Conviction for Domestic Violence

The Ohio Supreme Court has held that a state may prove a prior conviction for domestic violence by submitting a judgment entry of the conviction.  However, this is not the exclusive method the state may use.

The case is State v. Gwen, Slip Opinion No. 2012-Ohio-5046.

In Ohio, domestic violence offenses can be elevated – including up to a felony – if the State proves that the defendant has a prior conviction for domestic violence.  This case involved how the state proves this conviction.

In this case, the defendant was arrested in 2009 after his girlfriend called 9-1-1 alleging an incident of domestic violence.  He was charged with domestic violence, as a third-degree felony under the statute applicable to third-time offenders.

At trial, in order to prove the prior convictions, the state introduced a certified journal entry from a court showing that the defendant pled guilty to domestic violence.  The state also introduced a “series of documents relating to a charge of domestic violence prosecuted against [the defendant] in another court” including a docket statement, a police incident report and other records.  The court’s journal entry was incomplete, however.

Ohio law, R.C. 2945.75(B), provides that:

(1) Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction  together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.

The court held that this statute “sets forth one way” for the state to prove the prior conviction.  But the statute is not the exclusive way.  For example, other proof may be offered, including a stipulation or prior testimony from court officials.

However, the court noted that when the state chooses to use a certified copy of an entry from a court, the certified entry must contain the elements required by the Rules of Criminal Procedure.  The court explained that simply a finding of guilty is not enough; the entry must show that a sentence was imposed.  “A judgment of conviction does not exist without a sentence,” the court said.  In order to be valid, the entry must contain:  (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.



OH SCT: Person Does Not Have Expectation of Privacy in DNA Profile Kept by Law Enforcement

In a significant opinion for law enforcement, the Ohio Supreme Court has held that a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and may not object to its use by the state in a subsequent criminal investigation.

The case is State v. Emerson, Slip Opinion No. 2012-Ohio-5047.

The case involves that The Combined DNA Index System (“CODIS”).  This is a database of DNA profiles obtained from convicted offenders, forensic samples, suspects, missing persons, unidentified remains and relatives of missing persons.

In 2005 the defendant was accused of rape.  Law enforcement officers obtained his DNA pursuant to a search warrant.  The DNA profile was placed into CODIS and remained there even after he was acquitted of the charges.

In 2007, the Defendant’s DNA matched a DNA sample found at a murder scene.  He was, as a result, charged with aggravated murder and other offenses.

The defendant argued that the use of the DNA sample in the database violated the Fourth Amendment because he has a reasonable expectation of privacy in the DNA profile obtained from his sample.  The Fourth Amendment applies, and a person has standing to object to the warrantless use of evidence, when the person has a reasonable expectation of privacy in the evidence seized.

To determine whether a person has a reasonable expectation of privacy, the court applies a two part test.  First, the person must subjectively expect of privacy.  Second, society must be willing to recognize that expectation as reasonable.

The court noted that a “person has a legitimate expectation of privacy in his or her bodily fluids.”  However, the sample in this case obtained lawfully pursuant to a warrant.  The question is whether that expectation of privacy extends to a DNA profile.  The court noted that a “DNA sample and a DNA profile  are not one and the same.”  The court explained:

a DNA sample is processed by  a specialist to obtain the DNA profile. . . .  Once the sample is processed, a record is made of the profile.  Accordingly, this scientific process results in a record separate and distinct from the DNA sample.  Because a scientific process must be performed on a DNA sample by an agent of the government to obtain the DNA profile, and the DNA profile is separate and distinct from the DNA sample, we conclude that the DNA profile obtained from appellant’s DNA sample was the work product of the government.  

As a result, a defendant has no “possessory or ownership interest in the DNA profile.”  Significantly, the state permits a person to request expungement of the profile from CODIS.  The defendant did not do so.  As a result, the court concluded that the defendant “did not manifest a subjective expectation of privacy in the profile, at least to the extent that it remained in the possession of the state for criminal investigatory purposes.”

The court also concluded that, even if the person had a legitimate subjective expectation of privacy in the DNA profile, society would not recognize this expectation as reasonable.  Citing Maryland and New York cases, the court concluded that “Although, human blood, with its unique genetic properties, may initially be quantitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests.”  The court reasoned that “retention by the state of a DNA profile for possible future comparison with profiles obtained from unknown samples taken from a victim or a crime scene does not differ from the retention by the state of fingerprints for use in subsequent investigations.”

The state was free to use the DNA sample in later cases because the defendant “was not subjected to  a new Fourth Amendment search and seizure when the DNA profile was used during the second criminal investigation.”  Moreover:  “The state did not violate any reasonable expectation of privacy held by appellant by using the DNA profile,  which was the state’s own record and which [the defendant] took no action to have removed from CODIS after his acquittal.”

The court also noted that the state was not required, on its own initiative, to remove DNA profiles from CODIS after an acquittal.  In addition, even if the state had violated the state statutory scheme by maintaining the DNA profile, this would not lead to suppression of the evidence because the Fourth amendment exclusionary rule would not be implicated for this type of violation of state law.