stating that "[e]ven though consent obtained after arrest may be suspect, the fact of arrest does not necessarily vitiate what otherwise appears to be a valid consent; in other words, the dispositive question is whether the officers used coercive tactics or took unlawful advantage of the arrest situation to obtain consent.
How later courts described this case
- stating that "[e]ven though consent obtained after arrest may be suspect, the fact of arrest does not necessarily vitiate what otherwise appears to be a valid consent; in other words, the dispositive question is whether the officers used coercive tactics or took unlawful advantage of the arrest situation to obtain consent.
- explaining that the term “trespass” in section 2911.12 is defined in section 2811.21
- "[t]he weight of authority holds that prior Miranda warnings are not required to validate consent searches, even when the consent is obtained after the defendant is effectively in custody"
- reviewing trial court’s decision denying motion to suppress
Written by the judges who cited it.
Later courts went against this
Abrogated by State v. Randolph, 175 Ohio St. 3d 248 (2023)
83 Ohio App.3d 474, 490 (4th Dist. 1992), abrogated by State v. Randolph, 2023-Ohio-4753, ¶ 12
The opinion
Grey, Judge,
dissenting.
I respectfully dissent.
Appellant contends that under
State v. Urvan
(1982), 4 Ohio App.3d 151 , 4 OBR 244, 446 N.E.2d 1161 , jeopardy for both crimes attached when he pleaded guilty to the Fairfield County charge. I agree.
The
Urvan
court held:
“When several offenses are committed in this state in different jurisdictions as ‘part of a course of criminal conduct’ the venue may be lodged for all the offenses in any one jurisdiction where ‘one such offense or any element thereof occurred.’ ”
Id.
at 155 , 4 OBR at 248, 446 N.E.2d at 1165 .
The Double Jeopardy Clauses contained in the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, and Section 10, Article I of the Ohio Constitution, prevent an individual from being prosecuted twice for the same offense.
State v. Thomas
(1980), 61 Ohio St.2d 254 , 15 O.O.3d 262 , 400 N.E.2d 897 . The Double Jeopardy Clause will bar successive prosecutions where the second prosecution requires relitigation of factual issues already resolved by the first.
Id.
For double jeopardy purposes, the state will be considered a single entity acting through subordinate units, namely the counties.
Brown v. Ohio
(1977), 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 . See, also,
Craig v. Engle
(N.D.Ohio 1985), 613 F.Supp. 782 .
Here, the factual issues in a trial for burglary had been resolved when the Fairfield County court tried Clelland for receiving stolen property. To try Clelland in Hocking County on a charge of burglary would require a relitigation
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of those factual issues which were previously determined by the Fairfield County court and flies in the face of the Ohio Supreme Court’s holding in
Thomas, supra.
The Tenth District had virtually this same issue in
State v. DeLong
(1990), 70 Ohio App.3d 402 , 591 N.E.2d 345 . In
DeLong ,
the defendant confronted a woman in a parking lot and demanded her car keys. He drove off in her car and two days later he was arrested in Warren County. He was indicted in Warren County for receiving stolen property, pleaded guilty, and was sentenced. About three months later, he was indicted in Franklin County for robbery, pleaded double jeopardy, and was convicted. On appeal, the Tenth District found, at 405-406, 591 N.E.2d at 346 :
“In
Maumee v. Geiger
(1976), 45 Ohio St.2d 238 , 74 O.O.2d 380 , 344 N.E.2d 133 , the court stated that a thief may not be guilty of the separate offense of receiving or concealing the same property which he has stolen. See
State v. Botta
(1971), 27 Ohio St.2d 196 , 56 O.O.2d 119 , 271 N.E.2d 776 . In
Maumee,
45 Ohio St.2d at 244 , 74 O.O.2d at 384 , 344 N.E.2d at 137 , the court stated:
“ ‘ * * * Although receiving is technically not an included offense of theft, it is, under R.C. 2941.25, an “allied offense'of similar import.” An accused may be tried for both but may be convicted and sentenced for only one. The choice is given to the prosecution to pursue one offense or the other, and it is plainly the intent of the General Assembly that the election may be of either offense.’
“In this case, appellant could originally have been tried for both the offenses of robbery and receiving stolen property, but he could only have been convicted and sentenced for one of the offenses. The choice was given to the prosecution to pursue one offense or the other; however, once Warren County acted and charged appellant only with receiving stolen property, Franklin County cannot attempt to charge appellant with robbery.
“In
State v. Urvan
(1982), 4 Ohio App.3d 151 , 4 OBR 244, 446 N.E.2d 1161 , the court stated that, when several offenses are committed in different jurisdictions as part of a course of criminal conduct, the venue may be lodged for all of these offenses in any one jurisdiction where one offense, or any element thereof, occurred. However, once one jurisdiction takes action first, it preempts venue and jurisdiction for the whole matter, and jeopardy must attach as a result of the activity of the first actor. Any possible question stemming from one jurisdiction’s failure to include another available charge in its prosecution is resolved by R.C. 2941.25, which requires an election between convictions for allied offenses when a state chooses to pursue both.
“In this case, once Warren County charged appellant with receiving stolen property, it made the election under R.C. 2941.25 to charge appellant with only one crime, and not to charge him with robbery. Had Warren County decided to
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charge appellant with both receiving stolen property and robbery, appellant could have been convicted of and sentenced for only one of the crimes. * * * However, * * * jeopardy attached * * * since Warren County’s actions preempted venue and jurisdiction for the whole matter. Consequently, jeopardy attached with the first prosecution for receiving stolen property and appellant’s first assignment of error is well taken.”
I adopt the position and the reasoning set out in
State v. DeLong, supra.
It has long been held that receiving stolen property is included in the offense, whether it be robbery, burglary, or breaking and entering, wherein the property is illegally obtained. There is a tendency to think that reversing a conviction is coddling criminals, or that the courts have gone overboard in protecting defendants’ rights, but little thought has been given to the results obtained when the courts do not draw clear lines. When we blur the distinction between what is one crime and what is two crimes, we erode the deterrent effect of our criminal justice system and make it less effective.
The legislature has imposed penalties for specific criminal conduct, but where the imposition of penalties is arbitrary or unpredictable, those penalties have no deterrent effect.
Thus, I dissent.