Prosecutors Desk

Revised Rules for Tampering With Evidence Charge

You pull someone over for traveling left of center. The driver does not have a valid license. There is a strong smell of alcohol, and you suspect that the driver is under the influence of alcohol. As you start to arrest the driver, you see him toss a knife out of the window.

Can you charge this driver with Tampering with Evidence?

No. On May 29, 2014, the Ohio Supreme Court redefined the charge of Tampering with Evidence. Tampering is still a valid charge. To prove that charge, the State must prove that the defendant altered, destroyed, concealed or removed a record, document or other item with the intent “to impair its value or availability as evidence in such proceeding or investigation.” This requires that the defendant know there is or likely will be a criminal investigation involving the evidence with which he tampered.

The most important factor in considering a Tampering charge is whether the evidence in question was involved in the crime for which the suspect is charged. If the item that is being altered, destroyed or concealed is not related to what the suspect is being investigated for (at that current time), you cannot charge him with Tampering.

Imagine you respond to a call of shots fired. If, when you arrive on the scene, you see someone try to toss a gun, a Tampering charge would be absolutely appropriate. If you see or suspect drug use and the suspect attempts to alter, destroy or conceal those drugs, a Tampering charge is also appropriate.

In the first scenario above, the knife did not relate to driving left of center. The knife did not relate to driving without a valid license, nor did it relate to driving under the influence of alcohol. Therefore, you cannot charge the driver with Tampering with Evidence.

What if, instead of a knife, you saw the driver hide a beer can under his seat? Because the driver had not been maintaining his lane and smelled of alcohol, which led you to suspect him of driving while under the influence of alcohol, it would be reasonable to charge him with Tampering with Evidence if you saw the driver attempt to hide an alcoholic beverage.

Your key consideration when deciding whether to charge an individual with Tampering with Evidence should be whether the item being altered, destroyed, concealed or removed is related to the current investigation. If the evidence tampered with has relevance to the current investigation, then you can add a Tampering charge.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney



Knowing the Stakes of Protective Sweeps

Recently, a defendant in one of our cases escaped drug and weapon related felony charges because of an improperly performed protective sweep. Police, responding to an anonymous emergency call involving a domestic dispute, performed a routine protective sweep and found a bag of cocaine and a gun on the bedroom floor. The officer believed that a protective sweep could be executed upon entering a home. However, the law requires more.

In order to legally perform a protective sweep, an officer must have an articulable suspicion or reasonable belief that there is someone in other rooms of the house who poses a danger to those on the arrest scene. The officer in the case above thought that he was able to perform a protective sweep at any time and stated that he always conducted them upon entering a home. This officer could not provide a specific reason for his suspicion that someone else was in the home. The officer said that he is often lied to when he asks about others in the home. That is not a solid enough reason for the sweep to hold up in court.

To avoid a situation like the one above, you should always begin by asking to search the home. If they say no, you still may search if you have a reasonable belief that there is someone else in the house that gives you reason to be concerned for your safety. Just because you hear a noise or even are advised that there is some other occupant in another room does not mean you can search there. It is important that you have some reasonable belief that a known or possible other occupant is a risk to your safety. The officer in the above case needed some reasonable suspicion in order to search, which he did not have.

The duties of a police officer can be stressful and demanding, especially when dealing with hardened criminals in high drug traffic areas. An added difficulty is having to comply with numerous, often complex, laws. Remember that you are only allowed to make a protective sweep when you have an articulable, reasonable suspicion of danger or you might watch the defendant walk free.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney


After seizing a cell phone incident to arrest, get a warrant prior to searching it!

The Supreme Court of the United States recently examined how the search incident to arrest doctrine applies to modern cell phones. The Court noted that cell phones are “a pervasive and insistent part of daily life.”

In reaching its decision, the Court weighed the degree to which such a search intrudes on an individual’s right to privacy against the degree to which it is needed to promote legitimate governmental interests.  The Court determined that the interest in protecting an officers’ safety did not justify dispensing with the warrant requirement for searches of cell phone data, nor did the interest in preventing destruction of evidence justify dispensing with the warrant requirement for searches of cell phone data. Accordingly, the Supreme Court held that a law enforcement officer must obtain a search warrant before searching a cell phone that is seized incident to arrest, except under limited exigent circumstances.   Riley v. California, --- S.Ct. ----, 14 Cal. Daily Op. Serv. 7045, 2014 Daily Journal D.A.R. 8220, 24 Fla. L. Weekly Fed. S 921, U.S.Cal., June 25, 2014 (NO. 13-212, 13-132).

For law enforcement officers, this decision means that a law enforcement officer may still seize a cell phone during a search incident to arrest and the officer may secure the cell phone in order to prevent the destruction of evidence. In addition, for officer safety, prior to getting a search warrant, the officer may inspect the phone to see if there is any physical threat, such as a razor blade between the phone and the case.

However, before searching the phone’s digital data, the officer must either obtain a warrant or satisfy an exception to the warrant requirement, such as showing that there was an exigent circumstance. Exigent circumstances will be very limited because they will require that an officer demonstrate that he was faced with a ‘now or never’ situation, such as a circumstance where the arrestee’s cell phone was the target of an imminent remote-wipe attempt.

The Court concluded that, once a law enforcement officer has secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone. The Court acknowledged that there are additional forms of destruction unique to digital data, such as remote wiping and data encryption, and offered some suggestions. Law enforcement officers can fully prevent remote wiping by disconnecting the phone from the network, which can be done by either turning off the phone or removing the battery. Law enforcement can prevent encryption or other potential problems by leaving the phone powered in an enclosure that isolates the phone from radio waves, known as a “Faraday bag.”

In light of this recent decision, law enforcement officers must obtain a warrant to search the digital data contained within a cell phone, with limited exceptions. After seizing the phone, the officer should take appropriate actions to ensure that digital data from the phone is not destroyed via methods such as remote wiping or data encryption.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney


The Hopper Act: An Added Protection for Officer Safety

By:  Sherri Bevan Walsh

In January 2011, Clark County Sheriff’s Deputy Suzanne Hopper was shot and killed responding to a call at a trailer park. The shooting suspect had a history of mental illness and had been declared criminally insane in 2002. Deputy Hopper would have radioed for back-up had she known that the suspect was unstable, but she had no way of obtaining this information. Her death did not go unnoticed. It spurred new legislation that requires a defendant’s history of mental illness to be disclosed in the National Crime Information Center (NCIC).

The new legislation, known as the “Deputy Suzanne Hopper Act” (or “Hopper Act” for short), became effective on September 4, 2013. The act amended O.R.C. 2945.402 and added O.R.C. 2929.44 to require courts to report information concerning a criminal’s mental illness. There are three items that must be reported to the original law enforcement agency involved.

First, mental health evaluations or treatment orders for a person convicted of a violent offense must be disclosed. If a person pleads guilty or is convicted of an offense of violence, the court may order that a mental evaluation be conducted. The evaluation results and any corresponding treatment must be reported to NCIC Supervised Release File through LEADS. The information reported and entered must include: (1) the name of the court providing the information, (2) the offense or offenses of violence to which the offender pleaded guilty or of which the offender was convicted, and (3) any other information required for the entry of information into the NCIC Supervised Release File.

Second, the conditional release of a person found incompetent to stand trial must be reported. If a court approves a conditional release for a person found incompetent to stand trial, the court must report to the local law enforcement agency all information pertaining to the release. This information must be entered into the NCIC Supervised Release File through LEADS. The information entered must include: (1) the name of the court providing the information, (2) the offense or offenses with which the person was charged, (3) whether the person was found Not Guilty by Reason of Insanity or Incompetent to Stand Trial with no substantial probability of becoming competent even with a course of treatment, (4) the reason for the conditional release, and (5) any other information required for the entry of information into the NCIC Supervised Release File.

Third, a finding of not guilty by reason of insanity must be disclosed. Similar to the second reporting requirement, if a court approves a conditional release for a person found Not Guilty by Reason of Insanity who has been committed, the court must report all information stated above pertaining to the release.

If the defendant has contact with law enforcement after the information has been entered into NCIC, law enforcement shall report the contact to the Department of Mental Health and any agency, person or office providing medical treatment. The mental health information added to the databases should remain on file until termination of the conditional release or commitment.

Beginning Jan. 1, 2014, courts are to use Form 95: NCIC Mental Health Notice to report this information. The original law enforcement agency is then responsible for entering the mental health information into NCIC so that local officers can access it when needed. Law enforcement must access NCIC information through LEADS.

The Hopper Act’s goal is to provide law enforcement with potentially life-saving information. By providing law enforcement with a violent offender’s mental health issues, responding officers can take appropriate precautions to ensure everyone’s safety.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney

Last Updated (Saturday, 07 June 2014 13:47)


Tips on Interviewing Juveniles

By:  Sherri Bevan Walsh, Summit County Prosecutor

Imagine you get a call for a fight at your local mall. When you arrive, the mall security tells you that several people were involved. An 18-year-old male is en route to the hospital with an abdominal stab wound. The witnesses and suspects are between the ages of 13 and 19.

Should you handle interviewing the juveniles the same way you handle interviewing an adult? Does it matter if the juvenile is a witness or suspect?

Generally, the same rules for police interviews of adults apply to police interviews of juveniles. However, you must take extra care to ensure that the juvenile fully understands his rights. Police should consider the juvenile’s age and apparent cognitive ability to decide whether the juvenile is capable of waiving his rights and speaking with the police.

Age is not always an obvious indicator of the juvenile’s ability to knowledgeably waive Miranda rights. Certainly a 16- or 17-year-old without cognitive disabilities can be expected to competently waive his Miranda rights or refuse to speak with police. But what about someone who is 14 or 15? My office has seen many juveniles younger than 14 effectively waive their rights prior to an interrogation.

The witnesses to the mall fight in our example are free to speak with police if they choose. They are also free to refuse. This applies to witnesses of any age.

Similarly, suspects in custody are free to waive their Miranda rights regardless of their age. However, police should take steps to ensure that juveniles meet the standard of “knowingly and voluntarily” waiving their rights.

Does a parent or guardian need to be present when you interview a juvenile suspect? Like adults, juveniles have the right to request an attorney be present during an interrogation. Juveniles also have the right to request their parent or legal guardian be present.

The appellate courts have held that there is no constitutional requirement of parental or guardian presence during juvenile interviews. However, police need to ensure to the best of their ability that the juvenile thoroughly understands his Miranda rights and is voluntarily speaking with police. The presence of a parent or guardian during the interview is another factor that must be considered when determining whether the juvenile is sufficiently waiving his rights.

In general, the rights afforded juveniles and adults for interview purposes are the same. But it is important to remember that what might not be considered a custodial interview requiring Miranda warnings when an adult is questioned, may be considered a custodial interview when a juvenile is questioned. In addition, there are several additional factors that must be weighed when determining whether a juvenile suspect’s Miranda rights have been properly waived. This includes the juvenile’s age and apparent level of comprehension, as well as the presence of a parent/guardian or counsel. Police should also be on the lookout for signs that the juvenile waived his rights out of fear or because he did not fully understand those rights.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

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