While on patrol, you run a car’s license plate. The car comes back stolen, so you initiate a traffic stop. Should you arrest the driver for Receiving Stolen Property?
That depends. Simply being in possession of stolen property is not enough to warrant a charge of Receiving Stolen Property.
According to the Ohio Revised Code, there are two elements that must be met to prove a charge of Receiving Stolen Property. The first is possessing stolen property. The second is “knowing or having reasonable cause to believe that the property has been obtained through the commission of a theft offense.”
In the above example, the driver is clearly in possession of stolen property. But does he know or have reason to believe that car is stolen? Without proof beyond a reasonable doubt in the affirmative, we cannot obtain a conviction for Receiving Stolen Property.
Why does the law require us to prove a knowledge or reasonable belief of the property being stolen? There are many reasons someone may unwittingly have possession of stolen property. For example, a woman may receive stolen jewelry as a gift. A man could purchase stolen electronics at a pawn shop or second-hand store. In some neighborhoods, it is not uncommon to borrow a car from a friend or even a stranger for a brief amount of time in exchange for money.
So how can you prove that second element? First, take a good look at the property. When was it stolen? The longer the amount of time it was reported stolen, the harder it is to prove that the possessor knows or should know the property is stolen, much less is the person who stole it. Does the suspect have anything that would lead that person to believe he was legally in possession of the property? For example, are the keys in the car? On the flip side, is there anything indicating that the property is stolen, such as a punched ignition or a broken window?
Second, interview the suspect and document all answers in your police report. Get the suspect to talk as much as possible about the property. How did he get the property? How long has he had it? Where did he get it? What does he know about it? If a suspect refuses to say where he received the property or is vague about how he got it, it is easier to prove he knew or should have known the property was stolen.
Prosecutors often use Receiving Stolen Property as an alternative to a Theft charge when we can prove the defendant knew the property was stolen but lack the evidence to prove he actually stole it. We may have some evidence that points to the defendant as the person who stole the property. However, we must still meet the threshold of proving beyond a reasonable doubt that the defendant not only possessed stolen property and knew it was stolen, but that he also actually stole it in order to prosecute the suspect for theft.
Consider someone trying to sell jewelry at a pawn shop. The jewelry matches the description of items stolen during a recent rash of burglaries. The seller claims he received the jewelry when his grandma passed away. An investigation reveals that the seller’s grandma is still living and never owned the jewelry in question. Obviously the seller was in possession of stolen property. And that he lied about the property’s origins proves he had reason to believe the property was stolen. However, there is no evidence other than the stolen jewelry to connect the seller to any of the burglaries. In this case, although we believe he was involved in the burglaries, we can only charge him with Receiving Stolen Property.
Receiving Stolen Property is a good alternative charge to Theft because the thresholds are the same for both charges. Property valued at less than $1,000 is a misdemeanor. Property valued at $1,000 to $7,500 is felony of the fifth degree. Property valued from $7,501 to $150,000 is a felony of the fourth degree. Cars, guns, checks, credit cards and prescription drugs are all felonies of the fourth degree, regardless of their value.
Always remember that possessing stolen property in and of itself is not a crime. A suspect must meet the second element of either knowing or having reason to believe that the property is stolen in order to be charged with Receiving Stolen Property.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
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By: Prosecutor Sherri Bevan Walsh
We recently had a case in which the defendant caused damage to a jail after being arrested on misdemeanor charges. While in custody, the defendant urinated throughout the cell and broke the smoke detector and fire alarm, causing the entire jail to be evacuated.
Certainly that sort of damage to government property would warrant a felony charge, right?
The answer depends on two factors: necessity to conducting business and monetary value. First, is the damaged property so crucial that the agency would be forced to shut down without it? And second, is the cost to repair the damage at least $1,000? If the answer to either of those questions is yes, then the perpetrator can be charged with felony vandalism.
According to Ohio law, vandalism is serious physical harm to an occupied structure or its contents. The property must be owned by either a business or a government, and the damage must be reasonably expected based on the actions of the person doing the vandalizing. For example, one can reasonably expect damage from hitting a window with a sledgehammer. One would not expect damage, however, from slamming a door with a glass window in it.
Vandalism can only be charged as a felony if the damaged property is necessary for the operation of a business or government agency or the cost to repair the damage is at least $1,000. If the damage does not meet either of these requirements, the suspect would face misdemeanor charges of criminal damaging (a misdemeanor of the second degree) and/or criminal mischief (a misdemeanor of the third degree). Criminal mischief is a misdemeanor of the first degree if the damage creates personal harm.
Necessity can be a point of contention between the victim and the legal system. In the eyes of the law, not every object used in the course of business falls into the necessary category. Necessary means the business or agency could not operate without it. For example, a dentist cannot conduct his business without his drill. If one of his windows is broken, on the other hand, he can still see his patients.
Because one of the criteria for felony vandalism is the cost to replace, repair and/or clean the damaged property, it is important to be able to calculate the monetary value of the damage. This is also important for determining the level of the felony. Vandalism is a felony of the fifth degree when the cost of repairs is less than $7,500. It becomes a felony of the fourth degree when the cost of repairs is $7,500 to $150,000. And vandalism is a felony of the third degree if the cost of repairs is more than $150,000.
Damage to an individual’s property that is not used in business or to an unoccupied structure does not constitute vandalism. Both of these would fall under criminal damaging. Depending on the surrounding circumstances and how the property was damaged, there could also be felony charges. For example, setting fire to an abandoned house would result in arson charges. Destroying someone’s flat-screen TV and living room furniture, although likely to cause more than $1,000 in damage, would result in burglary charges. Breaking the engine in a motorboat sitting in someone’s driveway, though, would only result in criminal damaging charges.
Simply being government property is not enough to elevate a vandalism charge from a misdemeanor to a felony. However, some courts have ruled that law enforcement property is necessary for doing business. Therefore, there is an argument that damage to jail cells, breathalyzers, cruisers and other items used by law enforcement do not need to meet the $1,000 threshold in order to warrant a felony charge. Damage to government property not valued over $1,000 is handled on a case by case basis, so you should consult your county prosecutor’s office.
The defendant mentioned at the beginning of this article was charged with and eventually pleaded guilty to Vandalism (F5), since the total cost to clean up the jail and repair all the damage was more than $1,000. However, by breaking the smoke detector and fire alarm, which caused the entire jail to be evacuated, the defendant effectively shut down the “business” of the jail. Arguably, this would also elevate his crime to a felony, regardless of cost.
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
A police officer initiates a traffic stop on a car with several individuals inside. Upon approaching the vehicle, the officer sees a gun sitting in plain view on the center console. The officer immediately pulls all individuals out of the car.
The officer discovers that the driver has a warrant out of municipal court for failure to pay court costs on a misdemeanor assault case. The front seat passenger has prior convictions for possession of marijuana, Vicodin and drug paraphernalia, as well as a resisting arrest conviction. One of the rear passengers has prior felony convictions for grand theft, tampering with evidence and forgery.
The officer charges all three individuals with Having Weapons Under Disability. However, he is stunned to find out that all three charges were no billed at grand jury.
What qualifies as a “disability” for purposes of a Weapons Under Disability charge can sometimes be confusing. Laws change, and how those laws are interpreted by the courts is constantly evolving. There are five basic “disabilities” under Ohio law, and reviewing them can help all police officers separate the myths from the facts. Those five disabilities are:
1. A prior felony drug offense
This is one of the most common disabilities, and also one of the most misinterpreted. Before House Bill 86 was enacted, any drug offense qualified, including misdemeanors. However, only felony drug offenses now qualify. A juvenile offense also counts.
2. A prior felony offense of violence
Murder, rape, felonious assault, aggravated assault, aggravated robbery, aggravated burglary, felony domestic violence and robbery are the most common. The statute lists many crimes that are considered felony offenses of violence, so when in doubt, contact my office or your police legal advisor. As with the drug offenses, a juvenile offense also counts.
3. Fugitive from justice
Most police officers assume that anyone with a warrant qualifies. This is not necessarily true. Before charging under this section, you should first determine if the suspect knew he had a warrant (a necessary requirement) and also whether that suspect was actively avoiding capture by law enforcement. This section would be difficult to prove if the suspect was simply hanging out at home or in his own neighborhood, or if he was otherwise simply going about his normal business.
4. Drug dependent, in danger of drug dependence or alcoholic
This section is rarely used for a disability, but can still be used with the proper proof. If a suspect is actively in drug treatment or was recently released from a drug diversion program, this section may apply.
5. Adjudication of mental incompetence or mental illness
This section is also rarely used, and should not be charged without consulting with the county Prosecutor’s Office or your department’s legal advisor. There would need to be documented proof of a serious mental illness for this to apply.
Another thing to remember, especially when looking at prior convictions as a source of disability, is whether there truly was a criminal conviction in the first place. Sometimes an arrest report, LEADS or other computer check will show an arrest but not a conviction. For example, if the arrest was for a felony drug offense but the suspect pled to a reduced misdemeanor charge, that would not qualify as a disability. Only looking at the court’s original journal entry can confirm a prior conviction.
When in doubt, contact the county Prosecutor’s Office or your police legal advisor. As always, knowing what separates fact from speculation when it comes to the law and how it is interpreted can increase the chances of a successful prosecution.
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
Imagine you pull over a driver for a routine traffic stop. The driver, a known drug dealer, is driving under a suspended license. After arresting the driver, you search his car and find $7,000 in the glove compartment. The driver cannot account for the source of the money.
That's quite a large sum of cash, and especially suspicious for a known criminal. The money is unaccounted for and discovered during the commission of a crime. Is the $7,000 subject to criminal forfeiture?
If you said yes, you guessed incorrectly.
In order to be eligible for criminal forfeiture, the property must meet two elements. First, it must belong to the defendant. Second, the property must be tied to the charged crime.
Referring back to our example, the money meets the first element of forfeiture. There is no reason to suspect the money would belong to anyone other than the driver, especially if the car he is driving is his.
However, the money does not meet the second element of forfeiture. Although the driver was committing a crime by driving under suspension, the money has no bearing on that particular crime. A criminal plus unaccounted money does not equal a forfeiture.
According to section 2981.02 of the Ohio Revised Code, property subject to forfeiture must either be contraband or property that was obtained through or used during the commission of the particular crime for which the suspect is charged.
It is important to note the difference between property seized as evidence and property seized as a criminal forfeiture. Evidence will be returned to its owner after the defendant's case is resolved – even if law enforcement has reason to suspect that the property was illegally obtained.
We once had a case in which men broke into a known drug dealer's home in a failed robbery attempt. When police arrived on the scene, they discovered thousands of dollars in cash in the man's home. Although the officers had good reason to believe that the money was profit from dealing drugs, the cash belonged to the victim and thus was not tied to the charges brought against the defendants. Therefore, it was not subject to forfeiture and was returned to the victim.
Criminal forfeiture is presented to the grand jury as a specification tied to a particular charge. The grand jury (or judge or jury in a trial) must first consider the actual charge. Then the jury must determine whether the property was used during the commission of the crime.
Officers testifying about forfeiture must be prepared to establish a connection between the property sought for forfeiture and the crime charged. Simply encountering a suspect in the possession of property for which they cannot account does not automatically mean the property is subject to forfeiture. The proper connection must be made between the property and the actual crime charged. The stronger the evidence, the more likely the judge or jury will find in favor of the forfeiture specification.
When considering seizing property as forfeiture, it may be helpful to consider the following questions:
• Could the offense have been committed without the presence of the property in question?
• Did the suspect have the property in his possession primarily to commit or attempt to commit the offense for which he has been charged?
• How instrumental was the property in the commission of the crime?
In a criminal case, forfeiture can be considered a sanction or punishment. Therefore, it is the State's burden to prove beyond a reasonable doubt that the property in question meets all the requirements of forfeiture. The judge or jury must consider the above questions when determining whether property is subject to forfeiture. Considering those questions before you seize property may help to strengthen the case when presented to a judge or jury.
If the burden of proof seems too high for criminal forfeiture, civil forfeiture statutes exist and are successfully used by this office. The civil forfeiture burden is preponderance of the evidence. We can subpoena tax returns and other documents to shore up the proof for civil forfeiture. Civil forfeiture requires the proceeds to be derived from:
• an offense or to be the instrumentality that is used in or intended to be used in the commission or facilitation of a felony offense or a misdemeanor authorized by statute, or
• an attempt to commit, complicity in committing, or conspiracy to commit either of those offenses.
Interrogations and depositions can be used in a civil case as an additional tool for forfeiture. When in doubt about what to do, contact this office to discuss the information you have.
We have recently seen an increase in forfeiture specifications, and have had greater success with both criminal and civil forfeitures. By continuing to work together, we hope to continue that success.
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
You are speaking with a possible suspect outside of that person’s residence. He is acting slightly unusual for someone unexpectedly questioned by the police. When asked whether there are weapons anywhere on the property, he stops talking and walks into the house.
Do you follow him into his home?
You have what you believe to be a reasonable concern that this person now presents an imminent danger to you, himself or anyone else inside the home. He was acting nervous. Numerous neighbors had previously voiced fears that he had weapons in his home and would use them if provoked.
However, you do not have a warrant to enter the home. Entering the property without a warrant could open you to claims that you violated the resident’s protection against unfair search and seizures.
Officers in a similar situation chose to enter the home, and were sued by the homeowners.
A high school principal in Burbank, Calif., contacted the local police department after learning that one of her students had reportedly threatened a school shooting. Many parents had kept their children home from school on that particular day out of fear that the rumor was true. Adding to the principal’s concerns, the student in question was a victim of bullying and was not at school that day – two warning signs of school violence.
When the police officers arrived at the student’s house, no one answered the door or the phone. However, the student’s mother answered her cell phone and told police she and her son were in the house. When the officer said he was at the house and would like to speak with her, she and her son reluctantly came outside.
The student and his mother exhibited numerous odd behaviors while talking to the police officers. The mother never asked why the police wanted to talk to her and her son. The son acted surprised that police would investigate his alleged intent to cause harm to his classmates. The mother refused to allow the officers to continue their conversation inside her home, away from the prying eyes of curious neighbors. And instead of answering when asked if there were any weapons in the home, the mother and son went back into the house.
The officers, concerned for their safety and that of anyone else inside the home, followed the mother and son into the house. The officers spoke some more with them and the boy’s father, who eventually joined them all in the living room. The officers determined that the allegations about the student were simply rumors and left without searching the house or any of its inhabitants.
Claiming the officers had violated their Fourth Amendment rights by entering the home without a warrant, the student’s parents sued the police officers in federal court. The case eventually was heard by the U.S. Supreme Court, which decided in January that, in light of the strange behavior of the student and his mother, the police officers had a right to enter the home.
Although police generally require a warrant to enter a private property, there are exceptions to that rule. Clearly, police are allowed to enter a home without a warrant if the resident verbally OKs their entrance or if a property search is a condition of community control or parole. The U.S. Supreme Court has also found that there are situations in which an emergency requires police to enter without a warrant.
In 1963, the Court upheld that exigent entrances are permissible if there is a reasonable belief that evidence will be destroyed unless the police enter the property to stop it. And last year, the Court struck down the so-called “police created” doctrine that holds that the exigency cannot be created by police, such as loudly knocking on a door and announcing their presence. The Court found that evidence is not typically destroyed unless there is a concern that the evidence might end up in the hands of law enforcement.
The Court’s recent decision that the reasonable suspicion of imminent danger is also a valid basis for warrantless entry expands the definition of exigent entry. However, caution should be used any time you consider a warrantless entry. Just as there are exceptions to when a warrant is needed, there are exceptions to when an exigent entry is allowed.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
Sherri Bevan Walsh is the Summit County Prosecutor.
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