Tag Archives: dayton Ohio criminal lawyer
Do the police really have to read me my rights?
It happens all the time. A client will walk into my office to discuss a criminal matter and even before I can start the preliminary questioning about the situation, the client exasperatedly proclaims, “the police did not read me my rights.” Usually, the client believes that this is a case-winning fact and one that I ought to care much about. However, the truth of the matter is that the police do not have to read the widely-known “Miranda rights” to each and every person they arrest. And even if they do violate the person’s 5th Amendment rights, this may not have any impact on the ultimate outcome of the case. 
The reason is that under current constitutional law, the police only have to read the Miranda rights when they are conducting “custodial interrogation” of the suspect. That is, if the police do not attempt to question the person about a crime, they do not have to advise the person that they have the right to remain silent, to an attorney, and so on. Simply asking an arrestee his name and where he lives would not qualify as “interrogation.” The police must be attempting to elicit inculpatory information from the suspect about a possible crime in order for it to be said the suspect was “interrogated”.
In short, it is only when two distinct criteria are met that the Miranda requirement is triggered: (1) the suspect must be in “custody” (a very fact specific inquiry) and the (2) the police must attempt to question the suspect about a crime they are investigating. If neither of these are satisfied, there is no Miranda violation. For instance, if an arrestee volunteers statements to the police, sometimes done as a last ditch effort to avoid arrest, the police and prosecutor are completely free to use those statements at a later trial, even when the defendant is never Mirandized. Because the police did not interrogate the suspect, but merely listened to what the suspect had to say on his own, one of the two necessary criteria discussed above are absent. Lesson to take from this: it is almost always true that talking to the police is a bad idea.
Furthermore, it is not that uncommon for the police to feel that they have no need to immediately question the suspect due to the fact he or she believes they have all the evidence they need in order to sustain an arrest (and ultimately, a conviction). Perhaps the officer witnessed the crime first-hand, or there are numerous witnesses at the scene who immediately point the finger at the arrestee. In either case, the officer may have no need to question the defendant and, therefore, no need to read the Miranda warnings at all. The bottom line is that not every person arrested has a constitutional right to have the Miranda warnings read to them, but rather only when they are subjected to custodial interrogation.
But this is not the end of the story. Let’s assume that the police in fact engaged in custodial interrogation and failed to properly Mirandize the suspect. This constitutional violation may not have any practical impact on the resolution of the defendant’s case. The remedy available for such a violation is not that the case is dismissed (as many people incorrectly believe), but rather that the statements obtained as a result of the violation will be excluded from trial. If the state has ample other evidence to sustain a conviction, the exclusion of these inculpatory statements will not make much of a dent in the overall strength of the state’s case. The state may not care that these statements are inadmissible given all of the other evidence it can still put before a jury. And this can obviously impact plea bargaining leverage as well. Now, of course, if the state’s case is weak and the statements are really needed in order for it to carry its burden at trial, then the police misconduct ends up being a huge chip that the defense can use during plea negotiations. And in rare cases, if the state’s case is so weak that without the use of the defendant’s statements it can not make out a prima facie case, the case may be dismissed upon motion.
So the next time you here someone complain that they were not “read their rights,” do not get the impression that they are out of the woods.
Posted in Criminal Law
Tagged constitutional rights, Criminal Law, Miranda, police conduct
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What is the standard to request a change of custody in Ohio
Under Ohio law, once a parent is designated as the residential and custodial parent, the prefernce is to maintain that person as the custodial parent. The Courts want to avoid a perneial tug-of-war between the parents with the children caught in the middle. Courts do not want to see motion after motion filed by the parents, but would rather have the custody established and settled for the benefit of the children. However, when it is appropriate, a post-decree motion for a reallocation of parental rights should be filed. The issue, then, becomes what must a parent prove in order to gain custody of their children from the other parent.
When the issue of custody is originally litigated during the divorce proceeding, the parents stand on equal footing as to custody and the standard is simply what would be in the “best interest of the child.” The best interest standard is a broad concept with 10 factors listed in the statute for the Court to consider.
The situation changes in the context of a post-decree motion. Unlike when the issue of custody was originally litigated during the divorce, the burden is higher on the petitioner. The parents no longer stand on equal footing as the preference or presumption is to maintain the status quo. For that reason the legal standard is more involved, which are:
1. That there has been a change in circumstances of the residential parent or the child since the original decree was issued (note: a change in circumstances of the non-residential parent does not matter). There must be some change that warrants a reallocation of parental rights and responsibilities. case law has been developed which provides lawyers an idea of what the courts consider to be a substantive change in circumstances.
2. That the change of custody is in the best interest of the child (and the court is again guided by the factors set out in the statute).
3. That any harm to the child by disrupting the status quo will be outweighed by the benefits of the change.
This is a condensed expression of the legal standard, and anyone wishing to have custody altered should consult an attorney, but hopefully it will give our readers an idea of what they must show if they want to pursue custody of their child.
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What are a Landlord’s duties regarding return of security deposits?
One of the most common landlord-tenant disputes revolves around the landlord’s return of a security deposit. Without getting into the issue as to whether money given by the tenant is considered a “security deposit” in the first instance (every now and again there are disputes), the typical scenario is that the tenant vacates the premises at the end of the lease term (or after an eviction) and the landlord refuses to return the security deposit, usually claiming damage to the premises or back rent. 
Absent some term contained in the lease agreement to the contrary, the landlord is allowed by law to apply any security deposit to tenant’s back rent. If the tenant owes the money, the landlord does not have to return the security deposit. One point of clarification is that the right of the landlord to apply the deposit to back rent exists even if the lease contains the common term “that the deposit will not be applied to rent.” Sometimes tenants believe that the landlord is contractually prohibited from keeping the deposit as payment for back rent after reading a such phraseology in their lease. This, however, is not what that particular lease-term means. That term simply means that if the tenant fails to pay the monthly rent at some point during the lease-term that the landlord will not apply the deposit to cover that payment. Rather, the tenant will still owe that month’s rent, notwithstanding the fact that the landlord is in possession of money given by the tenant for that exact amount. Such a term does not mean that the landlord can only use the deposit for damages caused to the premises.
But if the tenant remained current on the rent through the end of the leasehold, and provided the tenant was not responsible for any damages above normal wear and tear, the landlord MUST return the entire security deposit within a specified time. If the landlord fails to return the security deposit, the tenant has a cause of action against the landlord.
Under the Ohio Revised Code, a landlord must return your security deposit, along with an itemized list of any deductions from the deposit, to the former tenant within 30 days of the end of the lease. If the landlord fails to return the security deposit (or fails to provide a detailed itemization of damages) within this time-frame, the tenant is entitled to double the amount of the deposit withheld and may be awarded costs and attorney’s fees as well.
However, it must be pointed out that the tenant also has a duty to provide the landlord with an address to which the landlord is to send the deposit and itemized list of deductions. The 30 day time-frame does not begin to run against the landlord until the tenant has provided the landlord with such an address in writing. So tenants need to be aware of the requirement that the landlord receive this information in writing when they move out.
For a sample demand form for tenants, go here: FREE LEGAL FORMS
Posted in Landlord Tenant
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Important legal tidbits for Ohio DIY Landlords
This post is directed to the many “do-it-yourselfers” in the residential leasing market. This post is not meant to help the large, multi-dwelling landlords with full-time management and legal staffs. No, this is for the guy who gets transferred to another city and decides to rent out that house or condo in his current location rather than deal with market, or those budding real estate mogulists who’ve squirreled away money from their day job to have acquired 3 or 4 properties rented around town. These are the landlords that will most likely deal directly with tenants, and those that are least prepared to do so, considering their skills lie in engineering, or medicine, or building decks, or anything besides leasing residential housing. So here is a quick checklist for those who play landlord on the weekends:
1) Make sure to reduce the lease agreement to writing if the tenancy period is going to last over a year. You should always reduce your agreements to writing in order to prove the deal anyway, but oral tenancies lasting longer than a year are not even enforceable.
2) Never threaten to physically remove the tenant or lock the tenant out of the premises, even if they have failed to pay rent. Self-help is completely illegal in Ohio. Even if you can do so peacefully, you are never allowed to personally dispossess the tenant from the premises. The only legal way to evict a residential tenant in Ohio is through the statutory procedures proscribed in O.R.C. Sec. 2913, and the eviction must be sanctioned by a court in all circumstances.
3) You have a duty to keep the premises in a safe and habitable condition. This duty is not negotiable and you cannot shift this duty to the tenant, even in exchange for lower rent. It is ultimately the responsibility of the landlord to ensure the premises is up to building, housing and health codes, and at all times remains in habitable condition
4) Never retaliate against a tenant should they report code violations. You could be open to damages and attorneys fees if the court finds that you initiated eviction proceedings in retaliation for the tenants reporting alleged code violations.
5) Make sure to carry-out each duty the law requires of you under the Landlord-Tenant Act (O.R.C. Sec 5321). Most of the duties are self-evident and require only that you conduct yourself with basic human decency in the leasing of property, but you should look them over nonetheless.
6) If you intend to evict the tenant for the non-payment of rent or other default, make sure you provide the required Three-Day notice to vacate, required under state law before you do anything else. Do not file the eviction action in court until you have first provided the tenant with a notice to vacate, and then have waited at least three days. The court will lack jurisdiction to hear the eviction action unless the tenant is given the notice.
Posted in Landlord Tenant
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Guns, the NFL, and the Second Amendment Rights of Players
I’m sure that everyone who follows the NFL has surely heard more than they ever cared to about the recent Plaxico Burress-shoots-himself story. And along with the discussion about his particular situation came a broader discussion about NFL players carrying handguns, and the NFL’s league-wide gun policy, or lack thereof. Unfortunately, one thing that I have seen repeated over the airwaves (I’m talking to you ESPN) is the notion that the NFL is somehow limited in what it can do about its players carrying handguns by the Second Amendment.
Plaxico and his rights
This idea is simply rubbish. The NFL can contractually obligate its players to refrain from carrying handguns without running afoul of any constitutional rights. The reason is that the NFL can never, no matter how hard it tries, violate the constitutional rights of anyone. The most basic of constitutional principles is that the constitution protects people from governmental action, not those of other private individuals or organizations, such as the NFL.
In order for anyone to have a legitimate claim that their constitutional rights were violated, the conduct complained of must have been engaged in by a “state actor” (like the police, the FBI, or the IRS). Absent state action, there simply cannot be a constitutional violation of any sort – with some very limited exceptions where private citizens are acting on behalf of a state actor (like if the police asked your landlord to go into your apartment and confiscate illegal drugs).
So while there are interesting public policy and labor issues surrounding a potential NFL gun policy that it will negotiate with the Players’ Union, there are no constitutional issues anywhere in the picture. The NFL can mandate that players refrain from carrying guns just the same as it can mandate that players refrain from taking steroids.
For a NY Giants fan’s (and criminal defense attorney’s) perspective on the entire fiasco, check out Simple Justice.
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