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Under the Fourth Amendment to the United States Constitution, individuals are protected from “unreasonable searches and seizures” performed by government entities. Generally, this means that a police officer cannot search an individual without a warrant unless the officer has “probable cause” to believe a crime has been committed. If the officer lacks probable cause, the search is “unreasonable” under the Fourth Amendment.

In 1985, the Supreme Court held in New Jersey v. T.L.O. that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to students in public schools. However, the Fourth Amendment rights guaranteed to public school students is balanced with the school’s duty to maintain order and discipline within the school. Students have a decreased expectation of privacy in their person and belongings in the school setting because the school administrators stand in loco parentis – in the place of the parent – with respect to the students.

As a result, the courts have applied a more relaxed “reasonableness” standard when evaluation the permissibility of school searches. Instead of “probable cause,” school administrators must have “reasonable cause” or “reasonable suspicion” to conduct a search. In applying this reasonableness standard, the courts have determined that a school administrator’s search of a student complies with the Fourth Amendment if: (1) the search is justified at its inception, and (2) if the scope of the search is reasonably related to the circumstances necessitating the search.

One area that is a hot bed of Fourth Amendment litigation in both the criminal and school context is the permissibility of cell phone searches. Earlier this year, the Supreme Court issued its decision in Riley v. California, in which the Court held that police officers generally may not search the contents of a cell phone seized from a criminal defendant without a warrant. The Court recognized that modern cell phones may contain an immense amount of personal data in which a person has a high expectation of privacy.

As more and more students bring cell phones to school, school administrators must determine whether they may properly search a student’s cell phone when the student is suspected of violating school disciplinary codes. In light of Riley, it appears that courts will be more likely to side with students, notwithstanding their reduced expectation of privacy, if the suspected violation has nothing to do with a cell phone. It is reasonable to anticipate that future litigation will further define the scope of permissible cell phone searches, and clarify how Riley impacts the scope of student searches. In any event, school administrators are still bound by the standard annunciated in New Jersey v. T.L.O., which requires that any search of a student be justified at its inception and be reasonably related to the circumstances necessitating the search in the first instance.

The Finney Law Firm is pleased to act as counsel for the Ohio GOP in their continuing efforts to obtain the key card records showing electronic access to the County Buildings of former County Executive Ed FitzGerald, who recently lost his race for Ohio Governor.

On January 1, FitzGerald left office, and last fall the County offices relocated to a different building.  Thus, the stated reason for refusing to produce the records — that important security records would be compromised — is entirely mooted.  Thus, the former President of the Cuyahoga County Council is advocating for ending the litigation and releasing the records.  You may read that here.

This article highlights a new motion of the Ohio Republican Party to cause these records to be released.

Our firm is currently counsel to Hamilton County attorney Joseph Platt, who is challenging a restriction of the Ohio Supreme Court on solicitation of campaign contributions by judicial candidates, and other restrictions on the activities of judicial candidates.

(This makes two cases this firm has that contain issues that are being heard by the US Supreme Court this term.  Both of our cases are First Amendment cases we have pending in federal court.)

This very issue is before the US Supreme Court this term in the case of Williams-Yulee v. The Florida Bar.

The American Bar Association has weighed in on that case with an Amicus Brief in favor of the Florida Supreme Court’s position that solicitation of campaign contributions by judicial candidates should be forbidden.  Read more about that here.

Our client has consented to us highlighting this story as it represents an abuse of the justice system to his great detriment.

2014 Cincinnati NAACP President Ishton Morton

In January of 2014, a long-time volunteer for the Cincinnati, Ohio and national NAACP convened his first meeting as President of the Cincinnati branch of that organization, Ishton Morton.  To celebrate that occasion, Mr. Morton purchased dinner for the Board, and thus after the meeting adjourned, Board members assembled in a social gathering to congratulate their new President.

For more than a year prior to that meeting, the local Chapter was riven by a dispute where labor leader Rob Richardson, Sr., who lost a contested election for NAACP President in 2012, and his supporters, consistently protested at and disrupted local chapter Executive Committee and Membership meetings.

When those same dissidents arrived at that January meeting, Mr. Morton blocked their entrance.  Nearly a month later, these visitors filed criminal charges against Mr. Morton.  Sadly, without doing a proper investigation, Cincinnati Police filed criminal charges against Mr. Morton and the prosecutor pursued them.  At first the charges were for assault, then later they were dropped to the minor misdemeanor of disorderly conduct.  Very simply, neither charge was true.

The complaining witness was an employee of competing candidate for the Presidency, Rob Richardson, Jr.,  and the corroborating witness was his sister-in-law.  Mr. Morton, on the other hand, had nine exonerating witnesses saying the events in question simply did not happen.

Our firm was determined to “make a difference” for Mr. Morton, and to defend him against the charges.  But first, we tried to impress upon the City that their charges were misguided and unfounded.  They refused to listen, they refused to properly investigate the claim, they refused to even speak with any of our exonerating witnesses.

The trial convened in September, and took four days over three months to conclude, all before Judge Heather Russell.   From our perspective, not only was the evidence simply overwhelming in favor of the Defendant, but had the police, had the prosecutor taken the time to do their jobs, they themselves would have realized they were prosecuting an innocent man.  They chose not to.

So, we proudly defended an innocent man and on December 17th Judge Heather Russell declared the Defendant “not guilty.”  The Enquirer has the story here.

In the big picture of our courtroom work, defeating the charge of a minor misdemeanor in Municipal Court is small potatoes.  But to defend the honor of an innocent man is a high calling, and we were tremendously proud to have been selected as his counsel and to vindicate his good name.

Our firm “made a difference” for Mr. Morton.

Today’s New York Times explores an interesting and aggressive new suit filed by the U.S. House of representatives challenging the spending power of the President.  It poses the question of how broadly the Administration can re-categorize spending to suit its needs, when an express appropriation is not authorized.

The Courts have created difficult standards as to who has standing to challenge actions of government agencies.  Many times, it seems, there is a “wrong,” a government action that exceeds any constitutional or statutory authority, but litigants struggle mightily to find a Plaintiff and a cause of action to bring the policy before the Courts.  Successively, each claimed Plaintiff, or the timing of the action, is batted down by the Courts applying stringent standards for access to its powers.

Such is the case with House of Representatives v. Burwell, a new action instituted by the House, led by Speaker John Boehner, against the Obama Administration.  Here, however, the “wrong” is manifest and the plaintiff seems strongly and uniquely positioned: Spending bills must originate in the House under the U.S. Constitution.  If the House fails to appropriate monies for the purpose of the expenditure, the expenditure must be illegal and the House be the perfect — and perhaps only — Plaintiff positioned to challenge the spending.

So, it will take three or more years to work its way through the Courts, but this litigation seems positioned to provide some restraint against the power of the Executive.

House Bill 343, which addresses a number of education issues, is currently  pending in the House Education Committee. On November 13, 2014, a provision was addedto the Bill to eliminate the minimum teacher salary schedule from state law. Under the current law, the minimum salary schedule provides a framework for paying teachers commensurate with their experience. Critics of the minimum salary schedule have long pushed for a merit-based salary system under which teachers would receive salary increases based on performance rather than experience. Proponents of the salary schedule argue that it aids low-income districts in attracting teachers, and helps prevent discrimination. Teacher pay remains a divisive issue and there is sure to be opposition from democrats and teacher unions as the Bill moves through the General Assembly. The Bill must pass through the House and Senate before it can become law, and will likely be amended a number of times before it reaches the Governor’s desk. We will be following House Bill 343 as it makes its way through the legislature.