OH2 warns counsel not to be candid about defense arguments lest they use it against them

Defendant voluntarily consented to the searches. Counsel’s attempt to be candid about the lack of strength of his argument was seized on by the appellate court as a near waiver, which it wasn’t. [Sometimes you just can’t trust appellate courts.] State v. Pugh, 2013 Ohio 1238, 2013 Ohio App. LEXIS 1126 (2d Dist. March 29, 2013):

As an initial matter Pugh came close to conceding the validity of the second search during the suppression hearing. After arguing that Selmon’s consent to the first search was involuntary, defense counsel added: “Candidly, Your Honor, on the second search I don’t feel my argument is as strong as in the first case. And I’ll leave it at that.” (Tr. Vol. I at 86). In any event, the trial court correctly found that Selmon validly consented to the second search and that Pugh’s consent was unnecessary.

The officer had a reasonable, articulable suspicion to further detain defendant based on the contents of the vehicle, defendant’s nervousness, the inconsistent factual accounts given by defendant and the passenger, and, most importantly, the fact that neither defendant’s nor the passenger’s name appeared on the rental agreement. Defendant finally voluntarily consented to the search of his vehicle, without reserve or hesitation. State v. Calimeno, 2013 Ohio 1177, 2013 Ohio App. LEXIS 1066 (8th Dist. March 28, 2013).*