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What's Up in the 8th

Vance Amison walks into a BMV, falsifies Ohio BMV Form 5736 (and no, it wouldn't surprise me if the BMV had 5,736 different forms) by using his father's driving information and forging his father's signature, and hands it to the clerk, thereby obtaining temporary registration for a Buick he owned.  He's charged with two counts of tampering with records:  one for forging it, and the other for uttering it.

So let's play one of our favorite games:  Two Offenses or One?  

In State v. Amison, the court decides that these are two separate offenses, relying on its 2008 decision in State v. Hughley, in which, according to the panel, the court held that the offenses were committed with a separate animus.  The problem with Hughley, though, is that it was decided while State v. Rance was the law on allied offenses.  Rance required a court to disregard the facts, and look only at the elements of the two offenses in the abstract:  if one offense theoretically could be committed without committing the other, the two didn't merge.  That's exactly what Hughes held.

To be sure, the Hughes court also held that the two were committed with a separate animus.  That holding is contained in a single sentence, without any analysis.  Nor does the Amison court engage in anything other than that flat statement.

I think that's a stretch.  The only motivation for Amison's action was the desire to obtain registration for his vehicle.  That required both forging and uttering the document; it would make no sense for him to do the former without the latter.  In fact, without the latter act, the forgery would never have been discovered.

The defendant in State v. Foster is the subject of the Bullshit Traffic Stop of the Week™.  A detective observes Foster commit numerous offenses - having tinted windows, changing lanes without signaling, and being black while driving a BMW - and, assuming the mantle of a traffic cop, stops Foster.  Foster, alas, has a suspended license, and so he's arrested and the detective begins an inventory search of his car prior to it being towed. 

During the course of that search, he picks up a can of Arizona Iced Tea, which feels heavier than normal, and so the detective opens it, finds a white powder on the rim of the can.  That tests positive for narcotics, and Foster winds up charged with possession of heroin.

The rule on inventory searches is that they must be conducted in accordance with an established policy. The City of Cleveland does indeed have such a policy, and it provides that police are to open any unlocked, closed containers.

But there's another rule for inventory searches:  they can't be used as a pretext to search a car for contraband.  The trial court concluded that the detective's purpose was to do precisely that, and the panel affirms.  And hooray for body cameras.  The detective's investigative purpose was perhaps best demonstrated by the camera showing him inspecting tiny white rocks found on the floor of the car; as the trial court noted, this "could not possibly be considered part of the inventory of the vehicle."

But what the panel giveth in Foster, the same panel taketh away in State v. Richmond.  If law enforcement were a game of Dungeons and Dragons, every cops' Special Ability would be the power to detect the smell of marijuana. 

And so it is here.  Two cops drive by a parked car, and discern the odor of burnt marijuana emanating from the car.  The cops approach the vehicle, have Richmond and the two other passengers exit, and find a gun under Richmond's front seat.  That leads to Richmond's indictment for having a weapon under disability and carrying a concealed weapon. 

In affirming the trial court's denial of the motion to suppress, the Richmond panel first decides that the initial "stop" of Richmond was a consensual encounter.  To be sure, a police officer can walk up to a parked vehicle, the same as anyone else, and that doesn't constitute a "seizure" within the meaning of the 4th Amendment.  There are innumerable cases holding that the smell of marijuana is sufficient to justify the warrantless search of a vehicle.

The court's arguably wrong about this, though; in each of the cases they cite, the police discovered the smell of marijuana after they had approached the car.  Here, the police office focused their suspicion on Richmond when they drove past his vehicle, and the approach to the car could be considered as an investigative stop.

Not that it matters; as I said, the case law is replete with decisions upholding the right of the police to search the car upon detecting the odor of marijuana.  The vitality of those decisions is somewhat questionable in light of the diminished criminality associated with marijuana; one might argue that a search of a car based on a violation of a minor misdemeanor is an invasion of privacy which outweighs the interests of law enforcement.

But driving a car while under the influence of marijuana is not a minor misdemeanor.  True, Richmond's car was parked, but that doesn't preclude the possibility of a charge of driving under the influence of drugs; that depends on whether the car was running, or the keys were in the ignition, facts which the opinion doesn't address.  The real moral of this story is that there are plenty of places you can smoke weed, but your car isn't one of them, especially if you've got a gun you're not allowed to have under the seat.  Richmond will have thirty months in prison to contemplate the wisdom of that observation.  

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