OH2: Two on nonconsensual encounters: one in an ER, one on def’s own property

The officer’s encounter with defendant in the ER initially asking if he had “any drugs or weapons” was not consensual. “The trial court concluded that Officer West’s encounter was not a consensual encounter. The trial court emphasized that West approached Weisgarber in an individual treatment room in the emergency department solely due to a report of Weisgarber’s drug overdose, and the officer initiated the contact by asking whether Weisgarber had ‘any drugs or weapons.’ The trial court implicitly found that the location of the encounter and the language used by the officer when he approached conveyed to Weisgarber that a response was required.” State v. Weisgarber, 2017-Ohio-8764, 2017 Ohio App. LEXIS 5202 (2d Dist. Dec. 1, 2017).*

Officer told defendant on his own property to stop his dirt bike so the officer could search it to check for the VIN then he let him go. “Based upon these facts, we cannot conclude that a reasonable person in Wertz’s position would have believed that he was free to go; Wertz, on his own property, was ordered to stop moving a dirt bike, an activity which exhibited at the time no evidence of illegality, and to come to Lingo. Wertz was asked several questions, and the VIN number of the bike was searched for and recorded. Lingo stated that after the interview, he ‘let [Wertz] go because I had no further cause to keep him.’ Since Lingo’s encounter with Wertz was not consensual, Wertz’s assigned error is sustained. State v. Wertz, 2017-Ohio-8766, 2017 Ohio App. LEXIS 5203 (2d Dist. Dec. 1, 2017).*

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