{"id":6769,"date":"2012-03-04T17:40:04","date_gmt":"2012-03-04T00:23:04","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-03-03T08:32:53","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6769","title":{"rendered":"OH8: Consent here was mere submission to authority"},"content":{"rendered":"

Defendant was stopped for having a headlight out and was given a warning. Immediately after he was told he was free to leave, the officer went into asking whether he had any drugs, firearms or knives on him. In the meantime, a second officer showed up to observe. The consent to search his person was a mere submission to authority at that point. State v. Dieckhoner<\/a>, 2012 Ohio 805, 2012 Ohio App. LEXIS 699 (8th Dist. March 1, 2012):<\/p>\n

[*P22] We find no legal distinction between Robinette<\/a> and the case before this court. Just as the Ohio Supreme Court was in Robinette<\/a>, we are also troubled by the timing of Comerford’s immediate transition from giving Dieckhoner the warning for the improperly working headlight to questioning him about contraband and then requesting to search his person.<\/p>\n

[*P23] Comerford gave Dieckhoner a verbal warning for the improperly working headlight and told Dieckhoner that “he was all set and to have a good night.” As Dieckhoner turned to walk toward his car, Comerford then asked, “[b]y the way, do you have anything illegal; guns, knives, bombs, anything[?]” Unlike the facts in Robinette, there was no departmental or “drug interdiction policy” that required Comerford to question Dieckhoner about weapons or drugs. With the second officer standing five feet away, Dieckhoner denied having any contraband. Comerford immediately asked for consent to search him and Dieckhoner agreed.<\/p>\n

[*P24] Comerford testified that he asks everyone he stops if they have any weapons, drugs, or guns on their person, and that he had no particular reason for asking Dieckhoner to search his person. In fact, Comerford testified that Dieckhoner was not acting suspicious in any way and that Dieckhoner was free to leave. <\/p>\n

[*P25] Although Detective Leanza testified that Dieckhoner stated he consented to the search because he did not think Comerford would find the drugs in his pocket, the test for whether consent was voluntary depends on the totality of the circumstances at the time consent was given. Dieckhoner’s reasoning for consenting to the search given after being arrested and to another law enforcement officer while in police custody does not withstand the State’s burden of clearly demonstrating that Dieckhoner’s consent was voluntary.<\/p>\n

[*P26] After considering the totality of circumstances in the instant case, including Comerford’s testimony that Dieckhoner appeared calm, the seamless transition between the detention and the request for consent, the fact that Comerford had no reasonable suspicion that Dieckhoner was involved or engaging in criminal activity, and the presence of another uniformed police officer, this court finds there was a sufficient show of authority such that Dieckhoner would not believe at the time that he was free to get in his car and drive away. Under these circumstances, any reasonable person would have felt compelled to submit to the officer’s search, rather than consenting as a voluntary act of free will. See Robinette<\/a> at 244-245.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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