OH2: Detained shoplifter did not have to be Mirandized before being asked for consent

Defendant was detained for shoplifting by a store’s loss prevention officer, and the police were called. When the officer arrived, he asked for consent to search the car for other stolen stuff. Defendant then admitted that he had drugs in the car. The admission alone was probable cause, and Miranda warnings were not required before asking for consent. State v. Severt, 2010 Ohio 5389, 2010 Ohio App. LEXIS 4539 (2d Dist. November 5, 2010)*:

[*P47] Initially, we note that a police officer’s request to a defendant for consent to search his vehicle does not constitute an interrogation. State v. Carver, Montgomery App. No. 21328, 2008 Ohio 4631. Thus, Miranda warnings were not necessary before the request to search was made. We are not persuaded that Officer Young’s response to Severt’s question that he wanted to search the vehicle in order to check for stolen merchandise and/or other illegal items was a statement designed to elicit an incriminating response from Severt regarding the contents of his vehicle.

[*P48] Moreover, Severt’s admission regarding the presence of contraband in his vehicle made immediately after being asked for consent supplied Officer Young with probable cause to search the vehicle. Probable cause has been defined as a “fair probability” that criminal activity is afoot. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640. In the instant case, Severt’s statement that “there was some illegal items in the car,” gave Officer Young the necessary probable cause to search the vehicle for evidence of a crime. Thus, the trial court erred when it sustained Severt’s motion to suppress.

Defendant was stopped for speeding, and the officer talked to him through the window. When the defendant couldn’t produce a driver’s license, the officer directed him out of the car. Defendant was reaching for his right pocket repeatedly even when the officer told him not to. This was reasonable suspicion for a frisk for weapons. State v. Winston, 2010 Ohio 5381. 2010 Ohio App. LEXIS 4540 (2d Dist. November 5, 2010).*

Defendant was stopped for speeding, and the officer noted that he was excessively nervous during the stop. He related travel plans to a distant mall when gas was $4 a gallon, and it was a place of narcotics sales. Consented to the search of his car. Moreover, defendant was placed in the patrol car and told to hit a button to tell the officer to stop the search, an option he did not exercise. Vasquez v. State, 324 S.W.3d 912 (Tex. App.–-Houston (14th Dist.) 2010).*