Wednesday, Oct. 23, 2019
Youngstown City School District Board of Education et al. v. State of Ohio et al., Case no. 2018-1131
Cuyahoga County Common Pleas Court
State of Ohio v. Clinton D. Faggs III, Case nos. 2018-1501 and 2018-1592
Fifth District Court of Appeals (Delaware County)
State of Ohio v. Keith Nettles, Case no. 2019-0078
Sixth District Court of Appeals (Sandusky County)
Did Lawmakers Violate Constitution When Approving Takeover of Under-Performing Schools?
Youngstown City School District Board of Education et al. v. State of Ohio et al., Case no. 2018-1131
Cuyahoga County Common Pleas Court
ISSUES:
- When a bill before the General Assembly is “vitally altered,” does the “three-reading rule” in the Ohio Constitution require three readings of the altered bill?
- Does Article VI, Section 3 of the Ohio Constitution prevent the legislature from passing a law that transfers “operational, managerial, and instructional control,” to an academic distress commission that doesn’t report to the elected school district board of education?
BACKGROUND:
In 2015, House Bill 70 was introduced in the 131st Ohio General Assembly session. The 10-page bill expanded local school districts’ ability to create “community learning centers.” The Ohio House of Representatives passed H.B. 70 in May 2015. The bill was sent to the Ohio Senate, and was referred to the Senate Education Committee, where it remained unaltered until June 23, 2015.
The next morning, which was the last day of the legislative session before a recess, the Education Committee added a 67-page amendment to H.B. 70 that included a revised version of Ohio’s law allowing academic distress commissions to be formed for school districts receiving an “F” on the state’s school district report card. The amendment hadn’t been announced or revealed to the bill’s House sponsors or legislators from the Youngstown area. The amendment targeted the Youngstown City School District as the first district to be taken over by a distress commission, which gives an appointed chief executive officer full “operational, managerial, and instructional control” of the district.
Opponents of the new measure asked the committee chair for time to review and comment on the amendment, but were told that legislative leaders and Gov. John Kasich’s office insisted it was to be considered that day. The committee passed the bill without allowing for public input on the amendment, and the bill went to the Senate floor that day. The full Senate passed the bill 18-14, and the House agreed to the Senate’s amendments, meaning the bill passed the General Assembly that day. It was later signed into law by Kasich.
In August 2015, the Youngstown City School District filed a lawsuit in Franklin County Common Pleas Court, asking for a permanent injunction to prevent the law from taking effect. In 2017, the trial court denied the injunction, and the school district appealed to the Tenth District Court of Appeals. The Tenth District upheld the trial court’s decision in June 2018, and Youngtown schools appealed to the Supreme Court, which agreed to hear the case.
Bill Passed Illegally, School District Argues
The school district argues the legislature violated two sections of the Ohio Constitution when it passed H.B. 70. First, the lawmakers failed to follow the “three-reading rule” in Article II, Section 15(C) of the constitution. Next, the content of the bill strips all authority from the local school district, which violates Article VI, Section 3 of the constitution, the district maintains.
The three-reading rule requires every bill shall be considered by each house on three different days, unless the House or Senate suspends the rule by a vote of two-thirds of the members. Neither house suspended the rules, and they voted on H.B. 70 on the same day.
The General Assembly maintained that H.B. 70 had three readings in both chambers between the time it was introduced and finally passed. Citing the Ohio Supreme Court’s 1994 State ex rel. Ohio AFL-CIO v. Voinovich decision, the school district argues that when a bill is “vitally altered,” the three-reading provision is triggered anew. The district argues H.B. 70 required three more readings after it was drastically amended, which would have allowed for public input.
The district notes the Court in State ex rel. Ohio AFL-CIO stated that “vitally altered” means “there is no longer a common purpose or relationship between the original bill and the bill as amended.” The district maintains the initial 10-page bill allowed for greater flexibility by local school systems to improve collaboration between schools and community organizations. The 67-page distress commission amendment contains none of the concepts of the original bill, and adds whole new sections taking away the local school district’s rights and giving all power to an unelected CEO, the district argues. That difference means the bill lost its common purpose and must begin the three reading requirement again. Passing the bill without three readings violates the state constitution, the district concludes.
Article VI, Section 3 of the constitution states that each school district has the right to conduct a public vote to determine the members and organization of its school board, and “provisions shall be made by law for the exercise of this power by such school districts.” The district argues that R.C. 3302.10, which was established by H.B. 70, creates the academic distress commission for failing school districts, and the commission is composed of five political appointees. That appointed commission then selects a CEO, who has complete operational, managerial, and instructional control of the district, including the right to close all schools in the district.
Youngstown schools argues the sweeping power granted to the commission strips away all authority of the elected local school district board of education, which violates the constitution. The Tenth District ruled that the law grants some power to the CEO, but also leaves the district with power. The school district maintains there is nothing in R.C. 3302.10 that limits the CEO’s power over the school district and the law makes the actions of the school board meaningless. The district argues that the Ohio Constitution wouldn’t establish local elections to elect school boards if the legislature had the authority to take all power away from the local boards, rendering them irrelevant.
Legislators Followed Law, State Asserts
Representing the state, the Ohio Attorney General argues the Senate read H.B. 70 two times when the bill was introduced in the Senate and when it was referred to the Education Committee in May 2015. It was read a third time when it was brought to the Senate floor for a vote. The legislature followed the three-reading rule, the attorney general explains, and the addition of the amendment didn’t violate the reading requirement outlined in the constitution. The state maintains the amendment didn’t change the bill’s common purpose, which was “improving under-performing schools,” and both the community learning centers and the academic distress commissions help to improve schools.
The attorney general notes that the Supreme Court has struck down only one proposed bill using the “vitally altered” rule, and in that case, the legislature had deleted all language that pertained to criminal law and replaced it with language authorizing the construction of hospitals. The amendment to H.B. 70 added content regarding under-performing schools to a bill dealing with school reform, and didn’t completely change the purpose of the bill, meaning lawmakers didn’t vitally alter the legislation, the attorney general maintains.
Not only did lawmakers properly pass H.B. 70, but the law itself doesn’t violate Article VI, Section 3 of the constitution by usurping the local school district’s power, the attorney general argues. The state maintains Article VI, Section 3 only empowers those who live in the school district to determine the size of the school board and to select the members. The attorney general states that a school board is an “instrumentality” of the state, and the boards only have powers granted by state statute. The state maintains the right to grant powers to academic distress commissions and Section 3 doesn’t prevent the state from transferring power away from a school board to a state-created commission.
The attorney general also explains that distress commissions don’t take away control of local schools from the school district. Local authorities within the school district appoint the commission members, and the CEO appointed by the commission meets with local groups to gather input for developing a plan to get the district out of academic distress. The attorney general argues the commission doesn’t have full control of the district, and the Ohio Constitution doesn’t state how much the state can limit the power of a local school board. Because the new law leaves some power with the local board, it doesn’t violate Section 3 of the constitution, the state concludes.
Friend-of-the-Court Briefs Submitted
Numerous amicus curiae briefs supporting the Youngstown City Schools’ position have been submitted. The East Cleveland Education Association, OEA/NEA, and Lorain Education Association submitted a joint brief. The Buckeye Association of School Administrators, Columbus City Schools Board of Education, Lorain City School District Board of Education, Ohio Association of School Business Officials, Ohio Federation of Teachers, and Ohio School Boards Association filed a joint brief. The Canton City School District Board of Education and the East Cleveland City School District Board of Education also submitted briefs in support of Youngstown’s positon.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Youngstown City School District Board of Education et al.: James Roberts, 330.744.5211
Representing the State of Ohio et al. from the Oho Attorney General’s Office: Benjamin Flowers, 614.466.8980
When Charging Domestic Violence, Must State Prove Parental Discipline Was Unreasonable?
State of Ohio v. Clinton D. Faggs III, Case nos. 2018-1501 and 2018-1592
Fifth District Court of Appeals (Delaware County)
ISSUES:
- In the prosecution of a defendant for domestic violence related to the corporal punishment of a child, does the state have the burden to prove unreasonable parental discipline, or must the defendant prove that the parental discipline was reasonable?
- Was the trial court’s verdict in this case supported by sufficient evidence?
BACKGROUND:
In January 2017, Clinton Faggs was living with his girlfriend, identified as H.K., in Delaware, Ohio. Faggs and H.K. have a son, who was 4 years old at the time. A 7-year-old identified as T.M., who is H.K.’s son from a prior relationship, lived with them. Faggs typically acted as the disciplinarian and authority figure to the children in the home.
During this time, T.M. had behavioral issues at home and school. His mother and Faggs tried various strategies to address the issues, including sending him to his room, taking away toys, rewarding him for good behavior, spanking him, and sending him to a boot camp.
On Jan. 11, after T.M. misbehaved at school, the principal brought the boy home while school was in session. Two days later, the school called H.K., asking her to pick up T.M. early because he had broken a school computer. When they arrived home, H.K. went upstairs and left T.M. with Faggs in the living room to be disciplined. While upstairs, she said she heard Faggs and the boy arguing and heard “scuffling types of noises.”
Faggs was about to leave the apartment when H.K. conveyed frustration with the type and extent of the discipline Faggs had given the boy. Faggs then took a controller cord from an Xbox computer game system to “whoop” T.M. on his rear end. The boy was moving around and was hit on his legs and arms as well. Accounts differ as to whether this took place in the living room or T.M.’s bedroom upstairs.
Mother Makes Report to Police
H.K. later noticed red marks on T.M.’s arms and legs. She didn’t think T.M.’s injuries required medical attention. But, the next day, she contacted the Delaware City Police Department. An officer visited the home to check on disciplinary acts that may have gone too far. H.K. described the prior day’s events. T.M. then told the officer that Faggs also choked him and slammed his head against the living room wall. The boy showed the officer the damaged wall.
The officer photographed T.M.’s injuries and the wall. The photos showed whip marks and bruising consistent with the controller cord, and redness on the sides of T.M.’s face. The photos didn’t show, and the officer didn’t notice, indications of strangulation injuries. A few days later, H.K. called police after she had a physical altercation with Faggs.
Defendant Accused of Domestic Violence and Assault
In July 2017, Faggs was charged with domestic violence and assault against T.M. and domestic violence and assault against H.K. At a trial before a judge, Faggs argued that his actions reflected reasonable parental discipline, so he couldn’t be convicted of domestic violence or assault. However, the judge found Faggs guilty of domestic violence and assault against the boy. Faggs was found not guilty of the offenses against H.K. In September 2017, the court sentenced Faggs to four years of community control.
Faggs appealed the trial court’s ruling to the Fifth District Court of Appeals. He challenged whether the evidence supported the guilty verdict. He also argued that the verdict “violates a parent’s fundamental liberty interest in raising and controlling his child” under the U.S. and Ohio constitutions. The Fifth District, however, upheld the trial court’s decision.
Faggs asked the Fifth District to formally certify that its decision conflicts with a ruling from another Ohio appeals court on how to analyze when corporal punishment of a child reaches the level of domestic violence. The Fifth District agreed that the appellate courts differ in their legal approaches to this issue.
Faggs notified the Ohio Supreme Court of the conflict. The Supreme Court agreed that the lower courts are in conflict and will review the issue. Faggs also filed an appeal to the Supreme Court about whether the evidence in his case was sufficient to find him guilty. The Court accepted that appeal as well. The Court then combined the cases for briefing and oral argument.
Domestic Violence Law
Faggs was convicted of domestic violence and assault. Ohio’s domestic violence law, R.C. 2919.25, states, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” Physical harm is defined in state law as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.”
Parents Have Constitutional Right to Discipline Children, Faggs Argues
In his brief to the Ohio Supreme Court, Faggs maintains that the U.S. Supreme Court has concluded that “freedom of personal choice” in family matters, such as parenting, is protected by the U.S. Constitution (specifically, the due process and equal protection clauses of the Fourteenth Amendment, as well as the Ninth Amendment). This freedom in family matters also falls within the “inalienable rights” protected by the Ohio Constitution, Faggs maintains.
Within the fundamental right to parent is the right of parents, teachers, and adults acting in the place of a parent (“in loco parentis”) to use reasonable physical punishment (also known as corporal punishment) to control, discipline, or raise children, he argues. He states that the Ohio Supreme Court has made clear in earlier decisions that Ohio’s domestic violence law doesn’t prevent a parent, or a person acting in the parent’s place, from administering reasonable physical punishment as a way to discipline or control a child.
State Has Burden to Prove Physical Punishment Was Unreasonable, Faggs Maintains
Typically in criminal cases, the prosecutor must prove a defendant’s guilt beyond a reasonable doubt. A defendant may present evidence that, or a witness who, contradicts the information the prosecutor presents. Or, a defendant may not offer a defense at all because the burden of proof is on the state to prove that the defendant committed a crime.
In some cases, though, a defendant may present evidence to “excuse” or “justify” conduct that otherwise would be a crime, Faggs notes. A few common examples are insanity, duress, and involuntary intoxication. These types of excuses or justifications – called “affirmative defenses” – exempt the defendant from legal responsibility even if the facts claimed by the prosecutor are true. If a defendant makes this type of argument, though, the burden shifts, and the defendant must prove the excuse or justification for the conduct.
With a domestic violence offense, the “physical harm” must be limited to conduct that causes unlawful injury to a child, Faggs argues. But, he states, corporal punishment isn’t illegal in Ohio. Given that reasonable physical discipline of a child is a legal way for a parent, or someone acting in a parent’s place, to control a child, the person is acting within parental constitutional rights as long as the conduct isn’t unreasonable, Faggs maintains. He adds that the state’s investigation of an incident will generate the information needed for a judge or jury to decide whether the punishment administered was reasonable or excessive. The burden of proof doesn’t shift to him, Faggs concludes.
“[T]he State must bear the burden of proving beyond a reasonable doubt that discipline administered by the accused was unreasonable, and thus, outside the scope of parental conduct protected by the Constitution,” Faggs’ brief states.
He asks the Supreme Court to reject the Fifth District’s interpretation in this case that a defendant must prove that the physical punishment of a child was reasonable, and instead adopt the Seventh District Court of Appeals’ 2013 decision (State v. Rosa) that, for a conviction, the state must prove the punishment was excessive or unreasonable.
Only Parent, or One Acting as Parent, Can Give Context of Discipline, Prosecutor States
The Delaware County Prosecutor’s Office notes that courts can consider certain affirmative defenses, including one defined in state law (R.C. 2901.05) as “a defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.”
In the prosecutor’s view, reasonable parental discipline fits within this definition. Information about parental discipline is within the knowledge of the parent or the person acting in the parent’s place, the office maintains. Because this knowledge is “peculiarly” known by the parent or one acting as a parent, the state’s interest in an efficient criminal justice system justifies placing the burden of proof on the defendant to prove that the corporal punishment was reasonable, the prosecutor argues. Citing U.S. Supreme Court rulings, the office contends that this burden-shifting is proper even if it affects a defendant’s fundamental right to parent children, as long as the shift doesn’t infringe too significantly on the right. The reviewing court must weigh the state’s interest in the process required by law, such as the one describing affirmative defenses, against the defendant’s fundamental rights, the prosecutor states.
The prosecutor reiterates in its brief that a parent, or person acting in that role, is “best situated to present a complete recitation of his own approach to discipline and the child’s responsiveness to those measures.” The office maintains that seven of the 12 district appeals courts in Ohio agree that the burden is on parents charged with domestic violence against a child to prove that the physical punishment was reasonable.
Parent Has Burden to Show Discipline Was Justified, State Contends
The prosecutor also states that Faggs treats “excuses” and “justifications” in the statute as the same, but they have different meanings. “Excuse” defenses involve illegal conduct where a defendant isn’t criminally liable for some outside reason, and “justification” defenses claim that an act is legal because the circumstances negate criminal responsibility, the prosecutor argues. Reasonable corporal punishment is a “justification” because such conduct doesn’t contradict the domestic violence law’s purpose, the office maintains. It concludes that shifting the burden of proof to the defendant to prove the reasonableness of the punishment is therefore appropriate.
While Faggs points to court cases that recognize a fundamental parenting right, the prosecutor contends that Faggs cites no court rulings finding that a parent has a fundamental right to physically punish a child or that a person acting in a parent’s place has a comparable right. The Supreme Court doesn’t need to acknowledge any such constitutional rights to resolve the issues Faggs raises in this case, the office states.
Parties Debate Whether Evidence Was Enough to Convict Faggs
Faggs maintains that the evidence against him was insufficient, when looking at all the circumstances, for a rational judge or jury to find that his punishment of T.M. was unreasonable or excessive. Faggs states that the purpose of his conduct was to discipline T.M. for misbehaving at school, and he and T.M.’s mom had been unsuccessful over time with various disciplinary tactics. Also, the trial court found that the controller cord was similar to a belt and that hitting kids with belts has been used for a long time for discipline. Even if he did choke the boy, Faggs notes there were no injuries on T.M.’s head or consistent with strangulation, and T.M.’s mother didn’t see a need for medical care. Faggs concludes that his actions were within the bounds of reasonable parental discipline, and his convictions should be overturned.
The prosecutor notes the trial court concluded that if the state had the burden of proof to prove Faggs committed domestic violence, then it met the burden. The office states it presented evidence that Faggs strangled T.M., lifted him by his throat, slammed him against the wall, slapped him, and whipped him with an electronics cord. The evidence included photographs and T.M.’s testimony. The evidence easily could convince a rational judge or jury that T.M. endured physical harm, the prosecutor argues. Even if the trial court switched the burden of proof to Faggs to prove the punishment was reasonable, the judge stated that Faggs didn’t prove his actions were reasonable, and he still would’ve been found guilty, the prosecutor maintains. The office believes the convictions should be upheld.
Lawyers’ Group Submits Friend-of-the-Court Brief
The Ohio Association of Criminal Defense Lawyers filed an amicus curiae brief supporting Faggs.
“The role of discipline lies at the very heart of the fundamental relationship between parent and child. Presuming that every imposition of corporal punishment is unlawful, and placing upon the defendant the burden of proving the contrary, is not consistent with that relationship,” the brief states.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2018-1501 and 2018-1592).
Contacts
Representing Clinton D. Faggs III: Jonathan Tyack, 614.221.1342
Representing the State of Ohio from the Delaware County Prosecutor’s Office: Kimberly Burroughs, 740.833.2690
Can Warrant to Intercept Phone Calls Be Issued in County Where Calls Are Made?
State of Ohio v. Keith Nettles, Case no. 2019-0078
Sixth District Court of Appeals (Sandusky County)
ISSUE: When a law enforcement officer seeks a warrant to intercept a criminal suspect’s telecommunications, must the judge issuing the warrant be located in the county where the targeted phone is located or where the officer’s listening post is located?
OVERVIEW
The parties dispute the meaning of language contained in R.C. 2933.53, and in particular, the phrase “county in which the interception is to take place.” The parties note that Ohio’s wiretapping laws are based on similar federal laws, and other states have comparable laws. The issue regarding where “the interception is to take place” has been decided in other jurisdictions, but this will be a case of “first impression” in Ohio, meaning the Ohio Supreme Court hasn’t addressed this particular legal issue before.
BACKGROUND:
In 2014, federal agents were investigating cocaine shipments from Detroit, Michigan, into Fremont in Sandusky County. Agents were monitoring the phone calls in Detroit of Ronald L. Miller and intercepted calls between Miller and Keith Nettles in Fremont. The calls indicated Miller was sending cocaine to Nettles. Agents in Fremont observed activity at a car wash consistent with the phone calls. Undercover agents then bought cocaine from another person in Fremont who had been calling Nettles’ phone.
Based on those activities, federal agent Michael Noel applied to a Sandusky County Common Pleas Court judge for an interception warrant under R.C. 2933.53 to intercept phone calls from Nettles’ phone for 30 days. The request stated Noel would be listening to the calls at the federal agency’s office in Toledo, which is in Lucas County. The warrant was granted, and the calls were intercepted.
Calls Leads to Charges
The warrant led to the collection of calls between Nettles and four others who would become cooperating witnesses in the investigation of Nettles. Based on the calls, agents searched the homes of two suspected accomplices of Nettles, but didn’t find drugs. None of the surveillance photos taken of Nettles and the accomplices captured drugs, drug transactions, or money exchanges.
Nettles was indicted for several crimes, including multiple counts of trafficking in cocaine and heroin, money laundering, and engaging in a pattern of corrupt behavior. During the course of the Nettles’ trial, prosecutors agreed to reduce the charges from an original 37 counts down to 14.
At the trial, Nettles asked to suppress any evidence derived from the phone calls that were intercepted through the use of the warrant. He argued the warrant was invalid because under R.C. 2933.53 the warrant had to be issued by a trial court in the county in which the calls would be intercepted. He asserted the interception happened at the agent’s office in Toledo and that a judge from Lucas County, not Sandusky County, had to have issued the warrant.
The trial court denied the motion, and Nettles was convicted on 11 counts and received a combined sentence of 34 years in prison. He appealed his conviction to the Sixth District Court of Appeals, arguing the trial court made several errors, including failing to suppress the evidence derived from the interception warrant. The Sixth District upheld the trial court’s ruling.
Nettles appealed to the Ohio Supreme Court, which agreed to consider only his argument that the warrant wasn’t issued by the judge in the proper county.
Warrant Invalid Because Issued in Wrong County, Nettles Argues
Nettles cites R.C. 2933.53(A), which states a prosecuting attorney or person designated to seek an interception warrant “may authorize an application for an interception warrant to a judge of the court of common pleas of the county in which the interception is to take place or in which the interception device is installed.”
He notes the Ohio attorney general argues that an “interception” takes place not only at the location where the person hears the conversation, which was the agent’s Toledo office, but also where the conversation took place, mostly in the Fremont area. Nettles maintains the trial court and Sixth District were wrong to agree with this argument for two reasons. First, because of digital technology and the use of cellphones, there no longer are “interception devices” to place on phones, so the portion of the law regarding the installation of the device is irrelevant. Next, he asserts there is no specific language in the state law defining where an interception takes place and there are no Ohio cases that provide any guidance.
Nettles explains that when there is no guidance on how to interpret a word or phrase in state law, the courts are to apply the common and ordinary meaning of words. He notes the word “intercept” is defined in R.C. 2933.51(C) as “the aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of an interception device.” He notes “aural” is defined by dictionaries as “of or relating to the ear or to the sense of hearing.” He indicates “acquisition” means “coming into possession,” or “to locate and hold.”
Based on the definitions of “aural” and “acquisition” Nettles reasons the law is clear that an interception occurs only once, where the communication is heard. In this case, that was in Toledo, and only a Lucas County court could have issued a warrant, he states. Because the warrant came from Sandusky County, it isn’t valid, he states. Any evidence based on the phone calls should be suppressed, and he should receive a new trial, he argues.
To counter arguments that an interception of a phone call can take place in two areas at the same time, Nettles in a brief uses a football analogy to argue otherwise. In football, when a quarterback’s pass is intercepted by a defensive player, the interception is deemed to have taken place at the point where the defensive player took possession of the ball. If the Court must use the common meaning of the term interception, it should consider that the regular use of the term means the act took place at the one location where the agent listened to the calls.
Warrant Can Come from County Where Phone is Located, State Argues
Nettles lived in Sandusky County and kept his phone there, and the crimes he was accused of committing happened in Sandusky County, the attorney general explains. It was then logical for the federal agent to seek a warrant to intercept Nettles’ phone calls in that county, and the law allows it, the attorney general maintains.
The attorney general explains that laws requiring warrants to intercept phone calls were developed in the 1960s in response to a U.S. Supreme Court decision. Since then, the Ohio law has been updated to match the changes in technology. With the advent of digital communications, the concept of bugging a phone or tapping a phone line is largely gone, but federal law now requires phone companies to give access to phone calls when law enforcement receives the proper authority to listen.
Because no current case law exists in Ohio regarding where an interception takes place, the attorney general argues, the state should consider the reasoning of federal courts and courts in other states that have addressed the issue. Those rulings indicate that in the modern era of telecommunications, the interception takes place at “both” the point where the agent hears the call and where the words are spoken into the targeted phone, the state asserts. Nettles’ calls originated from Fremont, so the state argues agents were authorized under R.C. 2933.53 to seek the warrant in Sandusky County, and the evidence developed from the calls can be used to convict Nettles.
In the state’s interpretation of the phrase “in which the interception is to take place,” the attorney general explains that it also looks at the law’s definition of “intercept.” The attorney general notes that interception can happen by “aural or other acquisition.” With modern technology, the phone conversation is captured not only by ear (aural acquisition), but also by “other” means when the words enter the telecommunications network. Under the definition of “other acquisition,” the attorney general asserts that the agent intercepted the conversations when the words entered the network, which was in Sandusky County.
The state provides an analogy for interception by envisioning someone building a reservoir a few miles from the Ohio River. To fill the reservoir, the person digs a canal to take water from the Ohio River to deposit in the reservoir. The water is intercepted where the canal meets the river, and is used later at the reservoir. Similarly, the phone call is intercepted at the phone, and the information travels a distance away to be heard at the listening post, the state concludes.
The attorney general urges the court to uphold Nettles’ conviction.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Keith Nettles: Patrick Milligan, 216.299.8415
Representing the State of Ohio from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
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