OH4: Consent not involuntary just because officer yelled at motorist to stay with car for safety reasons

The trial court found a lack of consent in part because the officer yelled at the motorist to stay with the car, but the appellate court was not persuaded. Safety reasons need to be considered. State v. Miller, 2012 Ohio 1901, 2012 Ohio App. LEXIS 1659 (4th Dist. April 17, 2012)*:

[*P28] After our review of the stipulated evidence submitted in the case sub juice, we disagree with the trial court’s conclusion that the appellee did not voluntarily consent to the search. The trial court relied upon the following factors to determine that appellee did not consent: (1) the trooper ordered appellee to remain in the vehicle; (2) the trooper removed appellee from the vehicle; and (3) the trooper did not advise appellee of his right to refuse. With respect to the first of these factors, the trooper was entirely justified to order appellee to remain in the vehicle. As the United States Supreme Court has recognized, traffic stops carry inherent dangers and law enforcement officers are entitled to exercise authority over the driver and any passengers in order to maintain a sense of safety. See Arizona v. Johnson (2009), 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (recognizing that “traffic stops are ‘especially fraught with danger to police officers” and that “‘”[t]he risk of harm to both the police and the occupants [of a stopped vehicle] is minimized *** if the officers routinely exercise unquestioned command of the situation.”‘”) (internal quotations and citations omitted). Thus, the trooper’s command that appellee remain in the vehicle does not constitute a coercive or threatening act.