Criminal Justice Update Fall 2009

Ohio Attorney general’s

Criminal Justice

Update

In this issue A message from Attorney General Cordray Arizona v. Gant: What it means for police News and notes from the office

Fall 2009

Dear Colleague,

A recent national magazine profile of the city of Cincinnati’s successful efforts to fight gang violence sparked a lot of discussion within Ohio’s law enforcement community. The June 22, 2009 “New Yorker” article describes the Cincinnati Initiative to Reduce Violence (CIRV): nearly 50 partner agencies including the city’s police department, county sheriff and probation offices, U.S. Attorney, district attorney, state parole authorities, social service agencies, University of Cincinnati Policing Institute and former executives from Procter and Gamble who volunteered to teach best management practices to the group. Organized in 2007, CIRV has held “call-ins” that target known violent gang members. This approach, also known as “Ceasefire,” is the outcome of nearly three decades of criminal justice research. David Kennedy, director of the Center for Crime Prevention and Control and professor of anthropology at John Jay College of Criminal Justice in New York City, helped CIRV analyze crime data and use social network analysis software to identify gang ringleaders who were forced to attend meetings with law enforcement and social service providers. They were then put on notice to get jobs, education and rehabilitation or face swift and certain punishment. The results are undeniable: murder is down, arrests have declined and morale in the police department has improved. Drawing upon academic support for research and implementation was instrumental and

should be part of any city’s gang work, police department officials said. For me, one major lesson stands out. Getting smart on crime is just as effective and just as important as getting tough on crime. While personnel, equipment and technology will always be the key tools to protecting citizens’ safety, leveraging the community’s knowledge is vital. Researchers, social workers, victim advocates and victims themselves can play a key role in enforcing the law. Law enforcement officers on the front line of fighting crime need the help of others. Smart crime fighting requires the talents and dedication of different groups with different specialties to assist each other. Examples of this approach are featured throughout this publication. For instance, officers who use the Ohio Law Enforcement Gateway’s search engine can now access its vast amounts of information from their smart phones. Additionally, firefighters can work with police departments in their communities to use OHLEG to investigate arson cases.

We offer free, sophisticated resources through the Bureau of Criminal Identification and Investigation to help local agencies perform the lab work and criminal analysis needed to find and punish offenders. We also offer trainings, through the Ohio Peace Officer Training Academy, on the latest crime-fighting techniques. This quarterly publication is intended to update you on our criminal justice efforts throughout the state and particularly from the Ohio Attorney General’s Office. I hope it will allow us to highlight the kinds of partnerships and initiatives we are pursuing to be tough—and smart—in the fight against crime. Sincerely,

Richard Cordray Ohio Attorney General

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News & Notes Task force cracks mortgage fraud case involving 453 homes

Ohio Attorney General Richard Cordray in late August announced details of an 18-month investigation that led to indictments against 41 people and four companies. The defendants are alleged to have engaged in real estate transactions to purchase 453 homes with fraudulent loans totaling $44 million. The indictments are the result of work done by the Cuyahoga County Mortgage Fraud Task Force operating under the authority of the Ohio Organized Crime Investigations Commission. “Mortgage fraud has cost this country billions of dollars and has caused much of the nation’s current economic hardship,” said Attorney General Cordray. “This case clearly demonstrates the value of teamwork and sends the message that if you are engaged in mortgage fraud, we will come after you and prosecute you to the fullest extent of the law.” For more information on the case, visit www.OhioAttorneyGeneral.gov/ CuyahogaMortgage.

New commission to investigate human trafficking

Ohio’s Trafficking in Persons Study Commission was convened by Attorney General Cordray this summer. It is designed to address a dismaying problem that is difficult to measure: modern-day slavery in Ohio. More than 20 offices and agencies throughout the state as well as survivors of human trafficking make up the commission, which will make recommendations on

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whether the state’s laws are sufficient to fight human trafficking and, most importantly, what law enforcement and others should do to crack down on this problem.

interface for real-time searches of many databases: criminal history, police incident reports, sex offender registration status and BMV records. OHLEG users can check out this service by visiting www.ohleg.org.

The commission will reconvene for its next meeting Sept. 30. We will be providing updates on its work at the office’s blog, available at www.OhioAttorneyGeneral.gov/ Blog.

Bowling Green BCI adds polygraph examiner

OHLEG can help fire investigations Fire departments can work with their partners in local law enforcement to access the Ohio Law Enforcement Gateway (OHLEG), which can assist with arson investigations.

OHLEG is a secure web-based resource that houses many investigative tools and training applications for law enforcement. To request access to OHLEG, fire departments need only provide a letter from their community’s chief of police that includes the names of firefighters who need access and gives the police department’s Originating Agency Identification as assigned by the Federal Bureau of Investigation. BCI also can provide on-site OHLEG training. To request training or to submit an authorization letter, please contact Steve Raubenolt at (740) 845-2105 or Steven. [email protected].

OHLEG-SE now available on smart phones

The Ohio Law Enforcement Gateway Search Engine (OHLEG-SE) is now accessible to officers in the field using smart phones. OHLEG-SE Mobile provides a single secure

The Bureau of Criminal Identification and Investigation (BCI) has hired a new polygraph examiner for the Bowling Green office, which means that BCI’s offices in London, Richfield and Bowling Green now each have one examiner. Local law enforcement agencies in need of a polygraph should call the 24-hour hotline, (800) 282-3784, whenever these cases arise and they need a polygraph, including weekends and holidays.

Cambridge BCI office closes

Due to budget constraints, BCI’s Cambridge office has been closed. BCI will pick up evidence for testing from the Guernsey County Sheriff’s Office on a weekly basis; Ohio Peace Officer Training no longer will be offered at that site.

NRA grants available to police

Grant applications for funding to cover equipment costs will be accepted until Oct. 31, 2009. The National Rifle Association Foundation’s State Fund Grant covers items such as individual body armor, tire spikes, traffic safety vests and portable defibrillators for use in patrol vehicles. Visit www.NRAFoundation.org/Grants/ StateFund.asp for more details. Questions can be directed to Bryan Hoover, NRA Field Representative, at (740) 297-4255.

Arizona v. Gant:

What it means for law enforcement.

In April, the U.S. Supreme Court effectively changed—and limited—the way officers conduct searches of vehicles during or immediately after arrests. The court’s 5-4 decision in the Gant v. Arizona case is the first change in 30 years to the way searches of vehicles may be conducted, and peace officers must know and follow the high court’s new guidance. Now, in order for an officer to conduct a vehicle search after arresting an occupant, the officer must have one of the following: (1) A search warrant. (2) An arrestee who is within reaching distance of the vehicle at the time of the search. (3) A reasonable belief the vehicle contains evidence of the offense of arrest. (4) Another exception to the warrant requirement, such as probable cause, protective sweep or plain view. Prior to the U.S. Supreme Court’s decision in Gant, officers could search a vehicle and any containers in it during or after a recent occupant’s lawful arrest. As part of that practice, officers would automatically search a vehicle once an occupant was placed under arrest. The rationale behind these previous decisions was to promote officer safety and to try to prevent the destruction of evidence. The events leading up to the Gant case began on Aug. 25, 1999, when Tucson, Ariz., police officers arrived at a residence after receiving a tip that it was being used to sell narcotics. Rodney J. Gant answered the door and explained that the owner would return shortly. The officers left the residence and returned after learning Gant

had an outstanding warrant for driving under suspension. The officers arrested several individuals for various offenses upon returning to the residence.

“ Law enforcement should note that the court was clear that a search during or after an arrest is the only warrant exception affected by the Gant decision.” Gant, who had since driven away, returned after these individuals were arrested. Upon his return, he was arrested, cuffed and secured in a cruiser. After securing Gant, the officers returned to his vehicle and recovered a gun and cocaine. Gant was charged with several narcotics offenses. Gant moved to suppress the evidence based on the warrantless search of his vehicle. The case was appealed to the U.S. Supreme Court, which developed a twopronged test to govern searches of vehicles during or after an occupant’s arrest. In order for an officer to search a vehicle, that officer must have reason to believe that (1) the person arrested may access the vehicle at the time of the search or

(2) the vehicle contains evidence of the offense that led to the arrest. Keep in mind that if the person being arrested has been handcuffed, then that person probably cannot access the vehicle. This limits the broader powers that peace officers previously had to search a vehicle after arresting the vehicle’s occupant. Law enforcement should note that the court was clear that a search during or after an arrest is the only warrant exception affected by the Gant decision. Officers still are permitted to search vehicles if they have a reasonable suspicion that an occupant, arrestee or otherwise is dangerous and may access the vehicle to gain access to a weapon. Furthermore, the Gant decision does not affect an officer’s ability to conduct a warrantless search based on probable cause of any area of a vehicle where evidence is likely to be found. For criminal justice news updates, visit www.OhioAttorneyGeneral.gov/ Newsletters.

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Melendez-Diaz v. Massachusetts: Does the person who wrote a lab report have to defend it in court?

The U.S. Supreme Court ruled in June in Melendez-Diaz v. Massachusetts that drug analysis reports prepared by a state drug laboratory, such as Ohio’s Bureau of Criminal Identification and Investigation, are subject to the Sixth Amendment’s Confrontation Clause, which gives defendants the right to confront witnesses who testify against them. In effect, the ruling allows a defendant to confront at trial analysts who prepared drug analysis reports. However, this ruling does not have an immediate effect on Ohio, because the court in its decision approved Ohio’s law on drug analysis reports. Ohio law says that a drug analysis report written by BCI or another approved laboratory that contains certain required information may serve as adequate evidence of the substance analyzed. A prosecutor who intends to introduce a drug analysis report at trial must give the report to the accused. The accused then has seven days to demand the trial testimony of the analyst who signed the report. (A trial judge can extend this time period in the interests of justice.) The court also said nothing to contradict the Ohio Supreme Court’s recent ruling that a defendant’s Sixth Amendment rights are not violated when a qualified expert analyst testifies about a scientific report even though another analyst performed the actual test.

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“The court also said nothing to contradict the Ohio Supreme Court’s recent ruling that a defendant’s Sixth Amendment rights are not violated when a qualified expert analyst testifies about a scientific report even though another analyst performed the actual test.” If the defendant makes the request in a timely fashion, then the analyst must testify. Because the defendant is given the option to act—this kind of law is known as a “notice and demand” statute—the law is not rendered unconstitutional by the high court’s decision in Melendez-Diaz.

Trainings

A listing of upcoming trainings and events offered by the Ohio Attorney General’s Office are available at www.OhioAttorneyGeneral.gov/Events. Crime Victims Assistance and Prevention Role of the Advocate ADVANCE Academy (Advocates Dedicated to Victim Assistance and Continuing Education): Ohio Department of Agriculture 8995 E. Main St. Reynoldsburg, OH 43068 Nov. 20, 2009, 9 a.m. to 5 p.m. This free, full-day training will describe what advocates can do for those who have been victims of crimes. For more information and to register, visit www.OhioAttorneyGeneral. gov/RoleOfTheAdvocate. Registrations will be accepted until Nov. 13. Responding to Sexual Assault The office is offering two free trainings in December for law enforcement on investigating sexual assault. These all-day trainings will be held at the Ohio Peace Officer Training Academy in Richfield. For more information or to register, call (800) 582-2877. Non-Stranger Sexual Assault Response and Investigation Dec. 2, 2009 Training for patrol officers or detectives who have limited experience investigating sexual assault cases. Identifying Sex Offenders: Tools for the Interview and Interrogation Dec. 3, 2009 Advanced training for law enforcement. Participants will review video to learn the best techniques for interviewing and interrogating possible sex offenders.

OPOTA Courses To register for any of the full-day Ohio Peace Officer Training Academy classes below, call the OPOTA registrar at (740) 845-2703. For information about other classes, visit www. OhioAttorneyGeneral.gov/OPOTA. OPOTA locations: Main Campus 1650 State Rt. 56 London, OH 43140 Richfield Campus 4055 Highlander Parkway Richfield, OH 44286 Drug Identification and Field Testing Seminar • Oct. 6 and Dec. 11 in Richfield ($125) • Nov. 4 in London ($135). Learn about how to identify drugs and test for them in the field. The training will cover common drugs of abuse such as marijuana, cocaine, heroin, date rape drugs and ecstasy. Identity Theft Investigation • Oct. 16 in London ($65) This course provides the investigator with tools and resources to identify and successfully prosecute acts of identity theft and fraud. Street Drugs: Recognition and Identification • Oct. 13 in London ($65) • Nov. 12 in Richfield ($50) This training will describe current controlled substances, national and regional trends, substance identification, packaging techniques, types of paraphernalia, concealment locations (personal and vehicle) and legal issues of substance possession and trafficking.

Open Government Training

Ohio law (House Bill 9) mandates that all elected officials or their designees obtain three hours of certified public records training per term in office. The Attorney General’s Office offers such trainings throughout the year, including these free upcoming sessions open to anyone who would like to attend. To sign up, or for more information about the state’s open records and open meetings laws, visit www.SpeakOutOhio.gov/ Sunshine. Oct. 15, 1 p.m. - 4:15 p.m. Lakeland Community College Center for Learning Innovation 7700 Clocktower Drive Kirtland, OH 44094 Oct. 20, 1 p.m. - 4:15 p.m. Ohio University Chillicothe Auditorium 101 University Drive Chillicothe, OH 45601 Oct. 26, 9 a.m. - 12:15 p.m. Ohio State University Mansfield Riedl Hall Auditorium 760 University Drive Mansfield, OH 44906 Nov. 4, 9 a.m. - 12:15 p.m. Wright State University 3634 Colonel Glenn Highway Dayton, OH 45435 Nov. 18, 2009, 1 p.m. - 4:15 p.m. Canton City Hall Council Chambers 218 Cleveland Ave. SW Canton, OH 44702

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State legislative changes House Bill 1, the state’s operating budget through June 2011, included changes to laws affecting the Ohio Attorney General’s Office that might be of interest to readers:

Crime Victims Fund

The state’s Victims of Crime Reparations Fund run by the Ohio Attorney General’s Office pays out claims to reimburse victims of crime or their families for medical treatment, lost wages and other costs. There have been persistent concerns about the fund’s future solvency. After taking office, Attorney General Richard Cordray worked with the Legislature to safeguard the fund so that it can continue to help victims of crime. The key change in the budget standardizes the amount that attorneys are paid for working with victims by reducing the hourly rates for helping a victim obtain a Civil Protection Order, such as a restraining order, from $150 to $60. Travel times now are reimbursed at $30 per hour, and this provision also limits the amount any one attorney or firm can be reimbursed in a year to $30,000. This will ensure that victims continue to get the legal help they need while also preserving the Crime Victims Fund.

Peace Officer Training

In order to cut through red tape that required qualified peace officers to take onerous and unnecessary re-training when they change jobs, the Attorney General’s Office asked the Legislature to update break in service requirements. House Bill 1 allows the Ohio Peace Officer Training Academy to move forward with changing several training requirements that were based on hours in the classroom—“chair time,” as many officers call it—to requirements that emphasize proficiency. For news about these changes, sign up for updates at www.OhioAttorneyGeneral.gov/Newsletters.

Concealed Handguns

The Legislature made several notable changes to the Concealed Handgun law: Sets the initial fee for a five-year concealed carry license at $67, up from $55. Renewals will cost $50, down from $55, and emergency temporary licenses will cost $15 plus the cost of any required Bureau of Criminal Identification and Investigation or Federal Bureau of Investigation background checks. Requires a county sheriff to waive the fee for an emergency license to carry a concealed handgun for an applicant who is a retired peace officer and certain other retired law enforcement personnel, unless the person retired as a result of mental disability. Modifies the definition of “unloaded” that is used for the offense of “improperly handling firearms in a motor vehicle” to specify that ammunition held in stripper clips or en-bloc clips are not considered ammunition that is loaded into a magazine or speed loader.

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Ohio Attorney General’s Opinions The Opinions Section of the Ohio Attorney General’s Office often is asked to provide guidance on legal questions to state agencies, county prosecutors, home rule township law directors and others.

30 E. Broad St., 17th Fl. Columbus, OH 43215 (800) 282-0515 www.OhioAttorneyGeneral.gov

Stay up-to-date with the latest news in Law Enforcement and Criminal Justice Subscribe to criminal justice updates at www.OhioAttorneyGeneral.gov/ Newsletters. Enroll in Ohio Peace Officer Training Academy courses at www.OhioAttorneyGeneral.gov/ OPOTA.

A searchable listing of these opinions dating back to 1993 is available at www.OhioAttorneyGeneral.gov/Opinions. Below are brief summaries of some opinions the office has issued this year regarding questions that might affect readers. Search the opinion’s number online to see the entire opinion: 2009-004 A county sheriff has no authority to charge a fee of the board of county commissioners for 9-1-1 dispatching services. 2009-008 County sheriffs and municipal police departments have concurrent jurisdiction regarding crimes committed on countyowned property within the municipal corporation.

2009-013 Townships and municipal corporations can jointly establish a mobile communication center for firefighting purposes. 2009-025 Regards county departments of job and family services and administering a polygraph examination to the victim of an alleged sex offense. 2009-028 A court of common pleas can impose a sentence of house arrest with electronic monitoring on a person convicted of a felony and order the person to pay for the monitoring in lieu of actual incarceration.