Criminal Law: Dog Sniffs are “searches” under the Fourth Amendment

One of the most powerful tools the police have to investigate crime, but also that can be the most invasive of a person’s privacy, is the power to search, without a warrant.  The Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court, is supposed to limit that power, by prohibiting searches without a warrant, and prohibiting “unreasonable” searches and seizures of evidence.

It is common for police to use dogs to sniff out contraband, particularly drugs, and do so around cars and buildings.  In the past, it was unresolved if this constituted a “search” under the Fourth Amendment, and therefore requiring a warrant, or one of the numerous court-created exceptions to the warrant requirement.  In the jurisdictions where a dog sniff was not a search, the police could bring in a dog around a parked or stopped vehicle, or even a home, and if the dog “reacted” in the trained way to the presence of contraband, the officers would then search the car, or the home, without a warrant.  The theory was that because it was only the free and public air being examined, it was not an invasion of anything private and therefore not really a search — it was no different than looking at something in the public view, just using a nose instead of eyes.

On March 26, 2013, the United States Supreme Court resolved the controversy and found that indeed when a dog was used, in that case on a suspect’s front door, to sniff for drugs, it was a search, and therefore subject to Fourth Amendment protection.  The rationale was that the senses of a dog were no different than a planted GPS, or a thermal imaging device, which the Court had previously found also were searches.

The decision is a greater protection of persons and places in their homes from the power, and sometimes misused power, of the police, and is a victory for the advocates for personal rights and liberties over the power of law enforcement.

The link may change but the case is Florida v. Jardines, and can be found at:

http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf

More information about my practice and background can be found at:

http://www.eaglelawoffice.com/

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney

Advertisement

Criminal Law: Paying attention to details in criminal cases sometimes pays off

Criminal Law: Sometimes people criticize so-called “technicalities” in defense of criminal charges, because they feel like it somehow rewards a guilty person.  But more often than not, those “technicalities” are the heart of the United States Constitution, the Bill of Rights, or the State Constitutions, and the Statutes of the particular jurisdiction.  These are not “technicalities,” but important Rights Americans have that keep the police, prosecutors, and the Criminal Justice system honest to everyone who comes before it, whether guilty or not.  Paying attention to those rights, and the details of all “technicalities” can sometimes be overlooked, but can sometimes be rewarding to someone defending themselves, with or without an attorney.

Such a case was recently decided in the First District Court of Appeals for Hamilton County, Ohio.  In Ohio, a criminal charge or complaint has to be signed under oath by the charging party — usually a police officer, usually before a notary or a court clerk.  If it isn’t, the Court doesn’t have jurisdiction to prosecute the charges. 

On February 3, 2012, an undercover officer getting ready to run a prostitution “sting” operation (where officers pose as prostitutes to arrest prospective customers), filled out the date of the offense and signed the criminal complaint form, but left the details to be filled in by other officers later.  After an arrest was made, the Complaint was filled in and filed with the Court.  When this was discovered, the defendant requested the charge be dismissed for lack of jurisdiction — because the facts of the accusation, being filled in after the complaint was signed, could not have been signed under oath as required — the facts hadn’t even happened yet.

The trial court denied the motion for “technical” reasons (a Rule that requires some motions to be made before trial).  But the steadfast defendant and his attorney appealed that decision, after he was convicted, and the Court of Appeals agreed with the defendant: there was no jurisdiction, that defense can be made at any time, and dismissed the charges.

It is sometimes assumed that these “details” are in order, but sometimes they are not.  This is a case that demonstrates the value of a vigorous inquiry and attention to all details.  You never know what might turn up.  In this case the details, or the “technicalities” of the Law, prevented a prosecution that the Court did not even have jurisdiction to prosecute, because Police “fudged” the “details.”

The link may change but the case is State v. Allen, and can be found at: 

http://www.sconet.state.oh.us/rod/docs/pdf/1/2013/2013-ohio-1673.pdf

More information about my practice and background can be found at:

http://www.eaglelawoffice.com.

I hope readers find this information helpful.

Thomas G. Eagle, Attorney

Auto Insurance Law, Personal Injuries: Having the right insurance coverage helps avoid losses

Auto Insurance Law:  The Ohio Supreme Court recently decided a case related to a driver’s rights to make claims against their own insurance company when they are injured by someone without sufficient insurance to cover their losses.  Many drivers have “Underinsured” or “Uninsured” Motorists coverage (also called UM/UIM).  This is coverage the driver pays for, so that if they or others in the car or other insured persons get hurt by someone who does not have any, or enough, insurance, you have paid for a right of compensation from your own insurance company.  Many insurance companies though will find ways to avoid paying.

One of those avoidances was arguing that the actual wrongful party (the under/un-insured driver) can’t be held liable for some reason, and therefore because you, the innocent person, couldn’t recover anything against them, you can’t get any UM/UIM coverage, either.

One of those avoidances involved government immunity, that is the person who caused the injury was a government employee entitled to some kind of immunity from suit, which is also common. 

The Ohio Supreme Court this week decided a case which essentially construed a common UM/UIM policy to in fact allow, or maybe require, UM/UIM coverage even though the other driver was entitled to governmental immunity, getting rid of a common defense Insurance Companies would use.

The Decision can be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-ohio-1957.pdf

The link is subject to change but the case is Marusa v. Erie Insurance.

Each driver should consult with their insurance agent to determine if UM/UIM coverage is right for them.  Many times a driver or passenger will find themselves seriously injured due to fault of someone else, and have no recovery because the responsible person is uninsured or underinsured, and UM/UIM coverage can prevent that.

More information about my practice and background can be found at http://www.eaglelawoffice.com.

I hope readers find this information helpful.

Thomas G. Eagle, Attorney

Legal issues important to families and businesses

As a sole practitioner lawyer, but with clients who are individuals, and small businesses, I regularly get questions about current issues important to the kind of people I represent.  I am therefore going to start this blog with short articles about current issues that are important to families and businesses, and hope it is helpful and informative.

For readers who don’t know me, I am a general practitioner in Southwestern Ohio, with an emphasis on various forms of litigation, including family law, civil and commercial litigation, personal injury cases of all kinds, criminal cases, and all forms of trials and appeals.  I have appeared in dozens of courts in this area, including Butler, Warren, Montgomery, Preble, Hamilton, Clinton, Clermont, Miami, Greene, and others, and in Kentucky.

More information about my practice and background can be found at http://www.eaglelawoffice.com.

I hope readers find this information helpful.

Thomas G. Eagle, Attorney