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Firearm spec mergers, hearings, and consent searches

As you may have gathered, I do a lot of appellate work, and that often results in me coming across cases which aren't necessarily recent, but that deal with situations which criminal attorneys tend to encounter from time to time.  I did a brief this past week which dealt with a whole smorgasbord of somewhat off-beat issues, so in the interests of solidarity and brotherhood, I'm passing them on.

The police find four different kinds of drugs in a house, along with a couple of guns.  The defendant is convicted of the drug counts, each of which carries a firearm spec.  Do the specifications merge?  Yep; under RC 2914.14(D)(1)(a), the court "shall not impose more than one prison term on an offender [for a firearm specification] for felonies committed as part of the same act or transaction."  The Supreme Court defined "same act or transaction" back in 1994 as "a series of continuous acts bound together by time, space, and purpose, and directed toward a single objective."  It's important to understand that the test here is different from the "separate animus" test used for determining offenses of allied import.  For example, a defendant who fired fourteen shots in rapid fashion at three different houses could be convicted and sentenced on three different counts of felonious assault, but only one firearm specification

Speaking of firearm specifications, what happens if the police search a house while the defendant's not present and find drugs and a gun; is he still subject to the firearm spec?  This one's trickier.  A lot of courts discuss the subject in the context of whether the defendant "constructively possessed" the weapon, but the firearm specification, unlike the drug abuse statutes, doesn't use the word possession:  the defendant has to have the weapon "on his person or under his control."  There's a halfway decent case out of the 8th District a couple years back, in which the court affirmed a conviction on a firearms specification where the police found cocaine and a gun in a car in the garage, while defendant was arrested in the house.  They do discuss several cases which state that there has to be some proximity between the defendant and the weapon.  That's probably about as good as you're going to do.

Every now and then, judges try to speed things up a bit too much, like, in the case I just did, by combining the hearing on the motion to suppress with the trial.  That's a no-no.  Rule 12 specifically says that a motion to suppress (or any other motions filed under 12(C) "shall be determined before trial."  There's not much recent law on the subject -- the original case on it is almost forty years old, but as this case points out, "the plain language of the rule does not vest the trial court with any discretion as to when such motions are determined."  It's not a technical point, either; a defendant is substantially prejudiced by combining the two, because while he has the right to take the stand in a motion hearing for the limited purpose of contesting the search, if he takes the stand at trial, it's open season.

Last, I ran across a nice decision on third-party consents in searches.  In my case, simple situation:  the police go to my client's father's house, and the father says that his son sometimes stays on the second floor.  The police get the father's signed consent to search the second floor, go up there, and find it's padlocked, so they break the locks and discover a marijuana grow room.  Pretty much the exact same thing happened last year in State v. Grodnoshnka, and the 8th District upheld the granting of the motion to suppress.  What's important to remember in third-party consent searches is that there are really two aspects:  actual and apparent authority.  If the third party has actual authority to consent, that's sufficient, but even if he doesn't, consent is still valid if the police could reasonably believe that he had the authority.  The court does a nice job summarizing the law on that, and concludes that the fact that the rooms were padlocked and the father didn't have a key made it unreasonable for the police to believe that the father had authority to consent to the search.


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