Ohio appellate court holds that it is too late to bring a Carpenter violation to the court’s attention in the appellate reply brief

In this case where the defendant was charged with a number of Ohio firearm criminal laws, the State presented evidence to corroborate a key witness’ testimony over the defendant, including cell site location data.

The defense argued for the first time on appeal in his reply brief that the warrantless retrieval of the CSLI violated Carpenter. The appellate court noted that it was too late to bring this up, and that nothing barred defense counsel from raising the issue before the reply brief.

The appellate court also held that the evidence to convict was overwhelming anyway, invoking the harmless error doctrine.

The case is State v. Kennedy, 2018-Ohio-4997, 2018 Ohio App. LEXIS 5326 (Ohio App. Ct., 2nd Dist.) December 14, 2018.