[This opinion has been published in Ohio Official Reports at
80 Ohio St.3d 234.]
THE STATE OF OHIO, APPELLANT, v. ROBINETTE, APPELLEE.
[Cite as State v. Robinette (1997), 80 Ohio St.3d 234.]
Criminal law—Motor vehicles—Continued detention of a person stopped for a
traffic violation constitutes an illegal seizure, when—Totality-of-the-circumstances test is controlling in an unlawful detention to determine
whether permission to search a vehicle is voluntary—Requirements for
consent to be considered an independent act of free will.
1. When a police officer’s objective justification to continue detention of a
person stopped for a traffic violation for the purpose of searching the
person’s vehicle is not related to the purpose of the original stop, and when
that continued detention is not based on any articulable facts giving rise to
a suspicion of some illegal activity justifying an extension of the detention,
the continued detention to conduct a search constitutes an illegal seizure.
(State v. Robinette [1995], 73 Ohio St.3d 650,
635 N.E.2d 695, paragraph
one of the syllabus, modified.)
2. Under Section 14, Article I of the Ohio Constitution, the totality-of-the-circumstances test is controlling in an unlawful detention to determine
whether permission to search a vehicle is voluntary. (State v. Robinette
[1995], 73 Ohio St. 3d 650,
635 N.E.2d 695, paragraph two of the syllabus,
vacated.)
3. Once an individual has been unlawfully detained by law enforcement, for
his or her consent to be considered an independent act of free will, the
totality of the circumstances must clearly demonstrate that a reasonable
person would believe that he or she had the freedom to refuse to answer
further questions and could in fact leave. (Florida v. Royer [1983], 460
SUPREME COURT OF OHIO
U.S. 491, 103 S.Ct. 1319,
75 L.Ed.2d 229; Schneckloth v. Bustamonte
[1973], 412 U.S. 218,
93 S.Ct. 2041,
36 L.Ed.2d 854, followed.)
(No. 94-1143—Submitted June 11, 1997—Decided November 12, 1997.)
ON REMAND from the United States Supreme Court, No. 95-891.
__________________
{¶ 1} In State v. Robinette (1995), 73 Ohio St.3d 650,
653 N.E.2d 695
(“Robinette I”), this court was faced with the following fact pattern:
“On August 3, 1992, appellee, Robert D. Robinette, was driving his car at
sixty-nine miles per hour in a forty-five miles per hour construction zone on
Interstate 70 in Montgomery County. Deputy Roger Newsome of the Montgomery
County Sheriff’s office, who was on drug interdiction patrol at the time, stopped
Robinette for a speeding violation.
“Before Newsome approached Robinette’s vehicle, he had decided to issue
Robinette only a verbal warning, as was his routine practice regarding speeders in
that particular construction zone. Newsome approached Robinette’s vehicle and
requested Robinette’s driver’s license. Robinette supplied the deputy with his
driver’s license, and Newsome returned to his vehicle to check it. Finding no
violations, Newsome returned to Robinette’s vehicle. At that point, Newsome had
no intention of issuing Robinette a speeding ticket. Still, Newsome asked Robinette
to get out of his car and step to the rear of the vehicle. Robinette complied with
Newsome’s request and stood between his car and the deputy’s cruiser. Newsome
returned to his vehicle in order to activate the cruiser’s video camera so that he
could videotape his interaction with Robinette. Newsome returned to Robinette,
issued a verbal warning regarding Robinette’s speed, and returned Robinette’s
driver’s license.
“After returning the license, Newsome said to Robinette, ‘One question
before you get gone [sic]: are you carrying any illegal contraband in your car? Any
weapons of any kind, drugs, anything like that?’ Newsome testified that as part of
2
January Term, 1997
the drug interdiction project he routinely asked permission to search the cars he
stopped for speeding violations. When Robinette said that he did not have any
contraband in the car, Newsome asked if he could search the vehicle. Robinette
testified that he was shocked at the question and ‘automatically’ answered ‘yes’ to
the deputy’s request. Robinette testified further that he did not believe that he was
at liberty to refuse the deputy’s request.
“Upon his search of Robinette’s vehicle, Newsome found a small amount
of marijuana. Newsome then put Robinette and his passenger in the back seat of
the cruiser and continued the search. As a result of this extended search, Newsome
found ‘some sort of pill’ inside a film container. The pill was determined to be
methylenedioxy methamphetamine (‘MDMA’) and was the basis for Robinette’s
subsequent arrest and charge for a violation of R.C. 2925.11(A).
“Robinette’s indictment was issued on December 18, 1992. On February
19, 1993, Robinette filed a motion to suppress the evidence found in the search of
his vehicle. The trial court overruled the motion on March 8, 1993, finding that the
deputy made clear to Robinette that the traffic matter was concluded before asking
to search the vehicle. The court ruled that Robinette’s consent did not result from
any overbearing behavior on behalf of Newsome.
“Robinette appealed. The Court of Appeals for Montgomery County
reversed the trial court, holding that Robinette remained detained when the deputy
asked to search the car, and since the purpose of the traffic stop had been
accomplished prior to that point, the continuing detention was unlawful and the
ensuing consent was invalid.” Id. at 651-652, 635 N.E.2d at 696-697.
{¶ 2} In Robinette I this court determined that the United States and Ohio
Constitutions required that “[c]itizens stopped for traffic offenses be clearly
informed by the detaining officer that they are free to go after a valid detention
before an officer attempts to engage in a consensual interrogation. … ” Id. at
paragraph two of the syllabus.
3
SUPREME COURT OF OHIO
{¶ 3} The state of Ohio appealed this ruling to the Supreme Court of the
United States. The Supreme Court granted a writ of certiorari, 516 U.S. ___,
116
S.Ct. 1040,
134 L.Ed.2d 187, and issued its opinion in Ohio v. Robinette (1996),
519 U.S. ___,
117 S.Ct. 417,
136 L.Ed. 2d 347 (“Robinette II”).
{¶ 4} The Supreme Court in Robinette II determined that it had jurisdiction
to hear the appeal even though Robinette I rested upon the Ohio as well as the
federal Constitution because Robinette I relied primarily upon federal law. Id. at
___,
117 S.Ct. at 420,
136 L.Ed.2d at 353. Where a state decision relies primarily
upon or is intertwined with federal law, and the adequacy and independence of state
law grounds are not clear from the face of the opinion, the United States Supreme
Court has jurisdiction to review it. Michigan v. Long (1983),
463 U.S. 1032, 1040-
1041,
103 S.Ct. 3469, 3472,
77 L. Ed.2d 1201, 1214.
{¶ 5} Although the state did not appeal the ruling in paragraph one of the
syllabus in Robinette I, concerning the lawfulness of Robinette’s continued
detention after the license check, the court nevertheless determined that the issue
of the legality of the detention was a “predicate to an intelligent resolution” of the
question presented and proceeded to review the issue. Robinette II at ___, 117
S.Ct. at 420,
136 L.Ed.2d at 354. The court held that under Whren v. United States
(1996),
517 U.S. ___, ___,
116 S.Ct. 1769, 1774,
135 L.Ed.2d 89, 98 (decided after
Robinette I), the officer’s subjective motivation in the detention of an individual is
not material to the legality of the detention; the correct test is whether there was
objective justification for the detention. Robinette II at ___,
117 S.Ct. at 420-421,
136 L.Ed.2d at 354. The court held that making Robinette get out of his vehicle
was objectively justified under the Fourth Amendment because an officer may
order an individual out of his or her vehicle pursuant to a lawful traffic stop.
Id. at
___,
117 S.Ct. at 421,
136 L.Ed.2d at 354, citing Pennsylvania v. Mimms (1977),
434 U.S. 106, 111,
98 S.Ct. 330, 333,
54 L.Ed.2d 331, 337, fn. 6.
4
January Term, 1997
{¶ 6} The court then went on to consider whether the Fourth Amendment
required an officer to state “you’re free to go” or similar language prior to seeking
permission to search a vehicle. The court held that the Fourth Amendment does
not require such a statement. The court indicated that it has rejected other similar
“bright-line” tests for determining whether a search is reasonable. See Florida v.
Bostick (1991), 501 U.S. 429,
111 S.Ct. 2382,
115 L.Ed.2d 389; Schneckloth v.
Bustamonte (1973),
412 U.S. 218,
93 S.Ct. 2041,
36 L.Ed.2d 854. Rather, the court
concluded that the Fourth Amendment requires that the voluntariness of the search
be determined by all the circumstances. Robinette II,
519 U.S. at ___,
117 S.Ct. at
421,
136 L.Ed.2d at 355, citing
Bustamonte at 248-249,
93 S.Ct. at 2059,
36
L.Ed.2d at 875.
{¶ 7} As a result, the Supreme Court of the United States reversed this
court’s judgment in Robinette I and remanded the cause “for further proceedings,
not inconsistent with this opinion.” Id. at ___,
117 S.Ct. at 421,
136 L.Ed.2d at
355.
{¶ 8} Subsequent to the remand order by the United States Supreme Court,
this court permitted the parties to brief the question “[w]hether this court’s prior
holding should be reaffirmed under the adequate and independent ground of the
Constitution of the State of Ohio.” See 78 Ohio St.3d 1412,
675 N.E.2d 1250.
{¶ 9} This matter is now before this court on remand from the United States
Supreme Court.
__________________
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for appellant.
James D. Ruppert and Deborah A. Bailey, for appellee.
Betty D. Montgomery, Attorney General, Jeffrey Sutton, State Solicitor, and
Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus curiae, Ohio
Attorney General.
5
SUPREME COURT OF OHIO
W. Andrew Hasselbach and Margery Koosed, urging affirmance for amicus
curiae, Ohio Association of Criminal Defense Lawyers.
Jeffrey M. Gamso and Joan M. Englund, urging affirmance for amicus
curiae, American Civil Liberties Union of Ohio Foundation, Inc.
__________________
LUNDBERG STRATTON, J.
{¶ 10} The first issue that we must determine is whether this court’s prior
holding should be reaffirmed under the adequate and independent ground of the
Constitution of the state of Ohio.
{¶ 11} When the United States Supreme Court incorporated the federal Bill
of Rights into the Fourteenth Amendment, the United States Constitution became
the primary mechanism to safeguard an individual’s rights. See Principled
Interpretations of State Constitutional Law: Why Don’t the “Primacy” States
Practice What They Preach? (1993), 54 U.Pitt.L.Rev. 1019, 1023-1024. As a
result, state court litigation of constitutional issues was based primarily upon the
authority of the United States Constitution. Id.; see, e.g., Mapp v. Ohio (1961), 367
U.S. 643,
81 S.Ct. 1684,
6 L.Ed.2d 1081 (Fourth Amendment exclusionary rule
applicable to states).
{¶ 12} However, more recently, there has been a trend for state courts to
rely on their own constitutions to provide broader protection for individual rights,
independent of protections afforded by the United States Constitution. See Arnold
v. Cleveland (1993), 67 Ohio St.3d 35,
616 N.E.2d 163. A state may impose greater
restrictions on police activity pursuant to its own state constitution than is required
by federal constitutional standards. California v. Greenwood (1988),
486 U.S. 35,
43,
108 S.Ct. 1625, 1630,
100 L.Ed.2d 30, 39; Oregon v. Hass (1975),
420 U.S.
6
January Term, 1997
714, 719, 95 S.Ct. 1215, 1219,
43 L.Ed.2d 570, 575. This movement toward
enforcing state constitutions independently has been called the “New Federalism.”1
{¶ 13} Despite this wave of New Federalism, where the provisions are
similar and no persuasive reason for a differing interpretation is presented, this
court has determined that protections afforded by Ohio’s Constitution are
coextensive with those provided by the United States Constitution. See, e.g., State
v. Gustafson (1996), 76 Ohio St.3d 425, 432,
668 N.E.2d 435, 441 (Double
Jeopardy Clauses coextensive in their protections); Eastwood Mall, Inc. v. Slanco
(1994),
68 Ohio St.3d 221, 222-223,
626 N.E.2d 59, 60 (First Amendment Free
Speech Clauses coextensive in their protections).
{¶ 14} The language of Section 14, Article I of the Ohio Constitution and
the Fourth Amendment is virtually identical.2 Accordingly, this court has
interpreted Section 14, Article I of the Ohio Constitution as affording the same
protection as the Fourth Amendment. In Nicholas v. Cleveland (1932), 125 Ohio
St. 474, 484,
182 N.E. 26, 30, fifth paragraph of the syllabus unrelated to the present
case overruled by State v. Lindway (1936),
131 Ohio St. 166,
5 O.O. 538,
2 N.E.2d
490, this court, in comparing the Fourth Amendment and Section 14, Article I of
the Ohio Constitution, stated:
1. See, e.g., Commonwealth v. Edmunds (1991),
526 Pa. 374, 390,
586 A.2d 887, 895, fn. 6.
2. Section 14, Article I of the Ohio Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and possessions,
against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but
upon probable cause, supported by oath or affirmation, particularly describing the place to be
searched, and the person and things to be seized.”
The Fourth Amendment to the United States Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
7
SUPREME COURT OF OHIO
“While we are not bound by federal decisions upon this feature of the case,
since the Bill of Rights in the Constitution of the United States is in almost the exact
language of that found in our own, the reasoning of the United States court upon
this aspect of the case should be very persuasive. The state courts, however, with
practical unanimity, have adopted the same principle as the federal courts.” See,
also, State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82,
661
N.E.2d 728.
{¶ 15} Perhaps most persuasively, this court in State v. Geraldo (1981), 68
Ohio St.2d 120, 125-126,
22 O.O.3d 366, 369-370,
429 N.E.2d 141, 145-146,
stated:
“The question is whether this court should imbue the state constitutional
provisions regarding search and seizure with a more stringent standard of
reasonableness than is required by the cognate federal constitutional provisions.
… [W]e are disinclined to impose greater restrictions in the absence of explicit
state constitutional guarantees protecting against invasions of privacy that clearly
transcend the Fourth Amendment. … It is our opinion that the reach of Section
14, Article I, of the Ohio Constitution … is coextensive with that of the Fourth
Amendment.” See, also, State v. Andrews (1991), 57 Ohio St.3d 86, 87,
565 N.E.2d
1271, 1273, fn. 1.
{¶ 16} Thus, case law indicates that, consistent with Robinette II, we should
harmonize our interpretation of Section 14, Article I of the Ohio Constitution with
the Fourth Amendment, unless there are persuasive reasons to find otherwise.
{¶ 17} We will first determine whether Robinette’s stop and continued
detention were justified. It is undisputed that Officer Newsome’s act of stopping
Robinette was justified because Robinette was speeding. We also find that
Newsome’s instruction for Robinette to exit the vehicle was also justified because
it was a traffic stop. Pennsylvania v. Mimms (1977), 434 U.S. 106, 111,
98 S.Ct.
8
January Term, 1997
330, 333, 54 L.Ed.2d 331, 337, fn. 6. Once Newsome administered the warning for
speeding to Robinette, the reason for the stop ended.
{¶ 18} However, Newsome continued to detain Robinette pursuant to a
drug interdiction policy. The drug interdiction policy required police officers to
ask persons detained during a traffic stop whether they had any contraband and then
to ask to search the vehicle.
{¶ 19} We note here that, pursuant to Whren v. United States (1996), 517
U.S. ___,
116 S.Ct. 1769,
135 L.Ed.2d 89, the officers’ subjective motivation for
continuing the detention is irrelevant. Whren, decided after our decision in
Robinette I, held that as long as the circumstances objectively justify the continued
stop, the Fourth Amendment is not offended. We therefore modify paragraph one
of the syllabus in Robinette I to read as follows:
“When a police officer’s objective justification to continue detention of a
person stopped for a traffic violation for the purpose of searching the person’s
vehicle is not related to the purpose of the original stop, and when that continued
detention is not based on any articulable facts giving rise to a suspicion of some
illegal activity justifying an extension of the detention, the continued detention to
conduct a search constitutes an illegal seizure.”
{¶ 20} And so the question becomes, was Officer Newsome objectively
justified, under the circumstances, in detaining Robinette after administering the
verbal warning? Specifically, we must first determine whether the officer was
justified in detaining Robinette to ask him whether he had any contraband.
{¶ 21} In Florida v. Royer (1983), 460 U.S. 491,
103 S.Ct. 1319,
75 L.Ed.2d
229, the Supreme Court held that the minimal intrusion of simple questioning of a
person not in custody does not constitute a “seizure” requiring Fourth Amendment
protection. Specifically, the court in Royer stated:
“[L]aw enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another public place, by asking
9
SUPREME COURT OF OHIO
him if he is willing to answer some questions, by putting questions to him if the
person is willing to listen, or by offering in evidence in a criminal prosecution his
voluntary answers to such questions.” Id. at 497, 103 S.Ct. at 1324, 75 L.Ed.2d at
236.
“The person approached, however, need not answer any question put to him;
indeed, he may decline to listen to the questions at all and may go on his way. He
may not be detained even momentarily without reasonable, objective grounds for
doing so; and his refusal to listen or answer does not, without more, furnish those
grounds.” (Citations omitted.) Id. at 497-498, 103 S.Ct. at 1324, 75 L.Ed.2d 236.
{¶ 22} The Royer court held that where the public interest in law
enforcement warrants a detention on less than probable cause, the stop must be
temporary and the investigative methods must employ the least intrusive means
available. Id. at 500, 103 S.Ct. at 1325, 75 L.Ed.2d at 238. The suppression of
illegal drug trafficking is such a public interest. Id. at 498-499, 103 S.Ct. at 1324,
75 L.Ed.2d at 237.
{¶ 23} In a similar context, the United States Supreme Court has determined
that sobriety checkpoints are constitutional if the initial intrusion and detention are
minimal and the detention serves the public interest. The test was set out in Brown
v. Texas (1979), 443 U.S. 47,
99 S.Ct. 2637,
61 L.Ed.2d 357, wherein the court
weighed “the gravity of the public concerns served by the seizure, the degree to
which the seizure advances the public interest, and the severity of the interference
with individual liberty.”
Id. at 51,
99 S.Ct. at 2640,
61 L.Ed.2d at 362.
{¶ 24} In sum, Royer and Brown set out a standard whereby police officers,
under certain circumstances, may briefly detain an individual without reasonably
articulable facts giving rise to suspicion of criminal activity, if the detention
promotes a legitimate public concern, e.g., removing drunk drivers from public
roadways or reducing drug trade.
10
January Term, 1997
{¶ 25} In the case at bar, we find that, pursuant to Royer and Brown, Officer
Newsome was justified in briefly detaining Robinette in order to ask him whether
he was carrying any illegal drugs or weapons pursuant to the drug interdiction
policy, because such a policy promotes the public interest in quelling the drug trade.
{¶ 26} The next issue for our determination is whether the continued
detention of Robinette after this point was lawful.
{¶ 27} If during the initial detention to ask the contraband question, the
officer ascertained reasonably articulable facts giving rise to a suspicion of criminal
activity, the officer may then further detain and implement a more in-depth
investigation of the individual. For example, at a sobriety checkpoint an officer
who detects slurred speech would be justified in detaining the individual to perform
a field test. State v. Eggleston (1996), 109 Ohio App.3d 217,
671 N.E.2d 1325.
{¶ 28} In the case at bar, Newsome did not have any reasonably articulable
facts or individualized suspicion to justify Robinette’s further detention in order to
ask to search his car. The facts here are similar to those in Royer where police were
held to be justified in briefly questioning Royer, but when they further detained
him, without probable cause, to gain his consent to search his luggage, the United
States Supreme Court ruled that this further detention was unlawful.
{¶ 29} Accordingly, Newsome was not justified in detaining Robinette in
order to ask for and execute an intrusive search. See Henry v. United States (1959),
361 U.S. 98, 102-104,
80 S.Ct. 168, 171-172,
4 L.Ed.2d 134, 138-139; Terry v.
Ohio (1968),
392 U.S. 1, 21,
88 S.Ct. 1868, 1879-1880,
20 L.Ed.2d 889, 906.
{¶ 30} Even though we have determined that Newsome unlawfully detained
Robinette to ask for permission to search his car, our analysis is not complete.
Voluntary consent, determined under the totality of the circumstances, may validate
an otherwise illegal detention and search. Davis v. United States (1946), 328 U.S.
582, 593-594,
66 S.Ct. 1256, 1261-1262,
90 L.Ed.2d 1453, 1460-1461.
11
SUPREME COURT OF OHIO
{¶ 31} Robinette argues that retention of Robinette I’s “free to go” rule
would provide predictability in determining whether an individual consented to a
search. We find that Robinette’s conclusion is based on an oversimplified approach
to the issue of consent. In Bustamonte, supra, the court recognized that consent
searches are part of the standard investigatory techniques of law enforcement
agencies.
Id.,412 U.S. at 231-232,
93 S.Ct. at 2050,
36 L.Ed.2d at 865. The court,
in refusing to adopt a requirement that an officer would have to advise the
individual that he or she had a right to refuse to consent to a search, stated, “[I]t
would be thoroughly impractical to impose on the normal consent search the
detailed requirements of an effective warning.”
Id. at 231,
93 S.Ct. at 2050,
36
L.Ed.2d at 865. In also declining to adopt a “waiver” statement that police officers
could read to a person whom they wish to ask to search (i.e., a standard requiring
that a consent to search is valid only if it is an intentional relinquishment of a known
right), the court in Bustamonte further stated:
“It would be unrealistic to expect that in the informal, unstructured context
of a consent search, a policeman, upon pain of tainting the evidence obtained, could
make the detailed type of examination demanded by Johnson [v. Zerbst (1938), 304
U.S. 458,
58 S.Ct. 1019,
82 L.Ed. 1461, concerning waiver of counsel in criminal
case]. And, if for this reason a diluted form of ‘waiver’ were found acceptable,
that would itself be ample recognition of the fact that there is no universal standard
that must be applied in every situation where a person forgoes a constitutional
right.” Bustamonte,
412 U.S. at 245,
93 S.Ct. at 2057,
36 L.Ed.2d at 873.3
3. Because circumstances so vary, the United States Supreme Court in Johnson v. Zerbst (1938),
304 U.S. 458,
58 S.Ct. 1019,
82 L.Ed. 1461, reasoned:
“The determination of whether there has been an intelligent waiver of right to counsel
must depend, in each case, upon the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused.” Id. at 464,
58 S.Ct. at 1023,
82
L.Ed. at 1466.
12
January Term, 1997
{¶ 32} In sum, every search situation is unique unto itself and no set of fixed
rules will be sufficient to cover every situation.4 For that reason, Bustamonte
utilized the totality-of-the-circumstances test to determine when consent is
voluntary. Such a test serves both interests of allowing police to legitimately
investigate under varying circumstances while protecting individuals from
unreasonable searches and seizures. Id. at 225, 93 S.Ct. at 2046,
36 L.Ed.2d at 861.
{¶ 33} We find Bustamonte instructive in defining when permission to
search is truly consensual under the totality of the circumstances:
“[W]hen the subject of a search is not in custody and the State attempts to
justify a search on the basis of his consent, the Fourth and Fourteenth Amendments
require that it demonstrate that the consent was in fact voluntarily given, and not
the result of duress or coercion, express or implied. Voluntariness is a question of
fact to be determined from all the circumstances, and while the subject’s knowledge
of a right to refuse is a factor to be taken into account, the prosecution is not required
to demonstrate such knowledge as a prerequisite to establishing a voluntary
consent.” Id.,412 U.S. at 248-249,
93 S.Ct. at 2059,
36 L.Ed.2d at 875.
{¶ 34} In Royer, the court further defined the elements of voluntary
consent. In Royer, narcotics agents stopped the defendant at an airport solely
because he fit a drug courier profile and escorted him to a separate room. Royer’s
luggage was retrieved from the airline without his consent. When the agents asked
for consent to search his luggage, Royer did not respond verbally, but produced a
key and unlocked his suitcase. A detective, without further authorization from
4. For example, evidence could show that a defendant had been advised by his attorney after a
previous arrest that he did not have to consent to such a search and to absolutely refuse in the future.
If the officer fails to use the magic words and consent is given (because the defendant did not believe
the officer could find the hidden drugs), the search could be thrown out on a technicality even though
the proof under the totality-of-the-circumstances test would establish that the consent was freely
given.
13
SUPREME COURT OF OHIO
Royer, then opened the suitcase. Marijuana was inside. In finding the detention
unlawful, the United States Supreme Court held:
“[I]t is unquestioned that without a warrant to search Royer’s luggage and
in the absence of probable cause and exigent circumstances, the validity of the
search depended on Royer’s purported consent. Neither is it disputed that where
the validity of a search rests on consent, the State has the burden of proving that the
necessary consent was obtained and that it was freely and voluntarily given, a
burden that is not satisfied by showing a mere submission to a claim of lawful
authority.” (Emphasis added.) Id.,460 U.S. at 497, 103 S.Ct. at 1323-1324,
75
L.Ed.2d at 236.
{¶ 35} In the case at bar, Officer Newsome stopped Robinette for driving
sixty-nine miles per hour in a forty-five-mile-per-hour construction zone. Officer
Newsome asked Robinette to step to the rear of his (Robinette’s) car, which was in
front of the patrol car. Newsome returned to his patrol car and turned on a video
camera. Newsome gave Robinette a verbal warning and advised Robinette that he
was letting him off with only a verbal warning. But without any break in the
conversation and still in front of the camera, Newsome then asked Robinette, “One
question before you get gone [sic]: are you carrying any illegal contraband in your
car? Any weapons of any kind, drugs, anything like that?” Robinette denied having
any contraband in the car. Newsome then immediately asked Robinette if he could
search the car. Robinette hesitated, looked at his car, then back at the officer, then
nodded his head. Newsome commenced a lengthy search of Robinette’s car.
During the search Newsome recovered some marijuana and a pill. Robinette was
charged with drug abuse.
{¶ 36} At the suppression hearing, Robinette provided the following
testimony pertaining to the search:
14
January Term, 1997
“Q And did he [Newsome] indicate to you that at that time [when he
returned from activating the video camera] that he was giving you a warning and
that you were free to go?
“A Yes, he did.
“Q And then at that time, I think, as the tape will reflect, the officer
asked you some questions about did you have any weapons of any kind, drugs,
anything like that. Do you recall that question?
“A Yes.
“…
“Q Did you in fact feel that you were free to leave at that point?
“A I thought I was.
“…
“Q The officer then asked if he could search your vehicle. What went
through your mind at that point in time?
“A Uhm, I was still sort of shocked and I — I thought — I just
automatically said yes.
“Q Did — did you feel that you could refuse the officer?
“A No.”
{¶ 37} Newsome’s words did not give Robinette any indication that he was
free to go, but rather implied just the opposite — that Robinette was not free to go
until he answered Newsome’s additional questions. The timing of Newsome’s
immediate transition from giving Robinette the warning for speeding into
questioning regarding contraband and the request to search is troubling. As the
majority stated in Robinette I:
“The transition between detention and a consensual exchange can be so
seamless that the untrained eye may not notice that it has occurred. The
undetectability of that transition may be used by police officers to coerce citizens
into answering questions that they need not answer, or to allow a search of a vehicle
15
SUPREME COURT OF OHIO
that they are not legally obligated to allow.” Id.,73 Ohio St.3d at 654,
653 N.E.2d
at 698.5
{¶ 38} When these factors are combined with a police officer’s superior
position of authority, any reasonable person would have felt compelled to submit
to the officer’s questioning. While Newsome’s questioning was not expressly
coercive, the circumstances surrounding the request to search made the questioning
impliedly coercive. Even the state conceded, at an oral argument before the United
States Supreme Court, that an officer has discretion to issue a ticket rather than a
warning to a motorist if the motorist becomes uncooperative. See 1996 WL
587659, at 5 (Official Transcript of Oral Argument). From the totality of the
circumstances, it appears that Robinette merely submitted to “a claim of lawful
authority” rather than consenting as a voluntary act of free will. Under Royer, this
is not sufficient to prove voluntary compliance. Royer,
460 U.S. at 497,
103 S.Ct.
at 1324,
75 L.Ed.2d at 236.
{¶ 39} We are very mindful that police officers face the enormous and
difficult task of fighting crime. Furthermore, we explicitly continue to recognize
that officers may conduct checkpoint-type questioning and consensual searches,
and may progress to further detention and investigation when individualized
suspicion of criminal activity arises during questioning based on reasonably
articulable facts. But allowing police officers to do their jobs must be balanced
against an individual’s right to be free from unreasonable searches. At some point,
individual rights must prevail. This is just such a case.
5. This transition was so seamless that even the amicus brief filed by the Ohio Attorney General
missed the transition. In that brief, the Attorney General states, “Even though Robinette took the
stand and admitted under oath that he felt he was ‘free to leave’ when the officer asked for consent
to search his car, the fruits of that search were suppressed.” Yet, Robinette clearly testified that he
felt he was free to go while he was being questioned, but when Newsome asked to search his vehicle
he no longer felt free to go.
16
January Term, 1997
{¶ 40} Accordingly, we find that Section 14, Article I of the Ohio
Constitution affords protections that are coextensive with those provided by the
Fourth Amendment and, therefore, the Ohio Constitution does not require a police
officer to inform an individual, stopped for a traffic violation, that he or she is free
to go before the officer may attempt to engage in a consensual interrogation.
Further, under Section 14, Article I of the Ohio Constitution, we find that the
totality-of-the circumstances test is controlling in an unlawful detention to
determine whether permission to search a vehicle is voluntary. Once an individual
has been unlawfully detained by law enforcement, for his or her consent to be
considered an independent act of free will, the totality of the circumstances must
clearly demonstrate that a reasonable person would believe that he or she had the
freedom to refuse to answer further questions and could in fact leave.6 Bustamonte,
supra;Royer, supra; State v. Barnes (1986),
25 Ohio St.3d 203, 208-209, 25 OBR
266, 270-271,
495 N.E.2d 922, 926.
{¶ 41} Therefore, pursuant to the totality of the circumstances, we find that
Robinette did not voluntarily consent to allow Newsome to search his automobile.
6. If police wish to pursue a policy of searching vehicles without probable cause or reasonably
articulable facts, the police should ensure that the detainee knows that he or she is free to refuse
consent despite the officer’s request to search or risk that any fruits of any such search might be
suppressed. While we are not mandating any bright-line test or magic words, when a police officer
informs a detainee that he or she does not have to answer further questions and is free to leave, that
action would weigh persuasively in favor of the voluntariness of the consent to search. As noted in
the amicus brief of Americans for Effective Law Enforcement filed with the United States Supreme
Court:
“Such a warning may be good police practice, and indeed amicus knows that many law
enforcement agencies among our constituents have routinely incorporated a warning into their
Fourth Amendment consent forms that they use in the field, but is precisely that — a practice and
not a constitutional imperative. An officer who includes such a warning in his request for consent
undoubtedly presents a stronger case for a finding of voluntariness in a suppression hearing, and we
would not suggest that such agencies and officers do otherwise. We know, too, that instructors in
many police training programs of leading universities and management institutes routinely
recommend such warnings as a sound practice, likely to bolster the voluntariness of a consent to
search. [We ourselves] conduct[] law enforcement training programs at the national level and many
of our own speakers have made this very point.”
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SUPREME COURT OF OHIO
As a result, the evidence collected in that search is inadmissible. The judgment of
the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., RESNICK and PFEIFER, JJ., concur.
COOK, J., concurs in judgment only.
DOUGLAS and F.E. SWEENEY, JJ., dissent.
__________________
COOK, J., concurring in judgment only.
{¶ 42} The majority concludes that the fruits of the consent search of
Robinette’s vehicle were (1) the product of an illegal detention and (2) obtained as
a result of Robinette’s involuntary consent. I agree only that the fruits of the search
were the product of an illegal detention. I nevertheless concur because evidence
gathered by police during an illegal detention is inadmissible, even where consent
to search has been voluntarily given, unless the state proves that the consent
resulted from an independent act of free will. Florida v. Royer (1983), 460 U.S.
491,
103 S.Ct. 1319,
75 L.Ed.2d 229. Additionally, I write to clarify some fine
distinctions that seem blurred by the majority.
SEIZURE OF ROBINETTE
{¶ 43} In order for there to be an illegal detention there must be a seizure of
the person that is unreasonable. In determining whether there is a seizure, a court
must take into account the circumstances surrounding the encounter and determine
whether the police conduct would have communicated to a reasonable person that
he was not at liberty to ignore the police presence and go about his business.
Michigan v. Chesternut (1988), 486 U.S. 567, 569,
108 S.Ct. 1975, 1977,
100
L.Ed.2d 565, 569. Here, the majority applies this test to adjudge that Officer
Newsome continued to “seize” Robinette, within the meaning of the Fourth
Amendment, after concluding his investigative purpose for the initial stop.
18
January Term, 1997
REASONABLENESS OF THE SEIZURE
{¶ 44} After determining that Officer Newsome’s extended detention of
Robinette constituted a seizure, the majority nevertheless concludes that the first
question asked in connection with a drug interdiction policy—whether Robinette
possessed any contraband—did not violate the Fourth Amendment. In support of
that conclusion, the majority cites two portions of the United States Supreme
Court’s plurality opinion in Florida v. Royer, supra,460 U.S. 491,
103 S.Ct. 1319,
75 L.Ed.2d 229, and the test set out in Brown v. Texas (1979),
443 U.S. 47,
99 S.Ct.
2637,
61 L.Ed.2d 357.
{¶ 45} In its first reference to Royer, the majority quotes language
addressing situations where a police encounter does not rise to the level of a seizure.
The second cite to Royer addresses situations where there has, in fact, been a
seizure, but that seizure is justified by a police officer’s reasonable suspicion of
criminal activity. In light of the majority’s determinations that Robinette was
seized while being questioned pursuant to the drug interdiction policy and that
Officer Newsome did not possess a reasonable suspicion justifying that detention,
the Royer citations lend no support to the majority’s analysis. The majority’s cite
to Brown, on the other hand, does relate to situations where police, absent even a
reasonable suspicion of criminal activity, may seize individuals without violating
the Fourth Amendment (e.g., sobriety checkpoints).
{¶ 46} As noted in Brown at 51,
99 S.Ct. at 2640,
61 L.Ed.2d at 362, a
seizure may be reasonable within the confines of the Fourth Amendment despite
the absence of probable cause or reasonable suspicion of criminal activity if the
seizure satisfies a balance between “ ‘the public interest and the individual’s right
to personal security free from arbitrary interference by law officers.’ ”
Id.,443 U.S.
at 50,
99 S.Ct. at 2640,
61 L.Ed.2d at 361, quoting Pennsylvania v. Mimms (1977),
434 U.S. 106, 109,
98 S.Ct. 330, 332,
54 L.Ed.2d 331, 336. The United States
Supreme Court has applied this standard to determine that fixed border patrol
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SUPREME COURT OF OHIO
checkpoints (United States v. Martinez-Fuerte [1976], 428 U.S. 543,
96 S.Ct. 3074,
49 L.Ed.2d 1116) and sobriety checkpoints (Michigan Dept. of State Police v. Sitz
[1990],
496 U.S. 444,
110 S.Ct. 2481,
110 L.Ed.2d 412) are not unreasonable
seizures within the meaning of the Fourth Amendment if “carried out pursuant to a
plan embodying explicit, neutral limitations on the conduct of individual officers.”
Brown,
443 U.S. at 51,
99 S.Ct. at 2640,
61 L.Ed.2d at 362.
{¶ 47} In light of these cases, analysis of Officer Newsome’s inquiry during
the extended detention, as part of a drug interdiction policy, would pose an
interesting legal question. As noted by the majority, suppression of illegal drug
trafficking weighs heavily in the public interest. Additionally, that Officer
Newsome’s questioning followed a valid initial stop and was limited to two brief
questions minimizes the seizure’s interference with individual liberty.7 Had the
state advanced Officer Newsome’s extended detention of Robinette as a reasonable
seizure under the Fourth Amendment pursuant to the drug interdiction policy, rather
than arguing that there was no seizure at all, it might have been able to demonstrate
that there was no period of illegal detention and thus no Fourth Amendment
violation. The state, however, did not pursue this line of reasoning and,
consequently, did not introduce evidence sufficiently demonstrating that the drug
interdiction policy met the standards for neutrality set forth in Martinez-Fuerte and
Sitz. Accordingly, I conclude that both questions posed to Robinette after the initial
stop had ended constituted illegal detention and that the evidence seized flowing
from the later consent search was therefore inadmissible. Compare State v. Chatton
(1984), 11 Ohio St.3d 59, 11 OBR 250,
463 N.E.2d 1237.
7. For purposes of this inquiry, the period of detention attributable to the drug interdiction policy
would exclude the search conducted by Officer Newsome after he obtained Robinette’s consent.
“The Fourth Amendment proscribes unreason-able searches and seizures; it does not proscribe
voluntary cooperation.” Florida v. Bostick (1991),
501 U.S. 429, 439,
111 S.Ct. 2382, 2389,
115
L.Ed.2d 389, 401. It would also exclude the period of detention attributable to the initial stop.
Pennsylvania v. Mimms (1977),
434 U.S. 106, 111,
98 S.Ct. 330, 333,
54 L.Ed.2d 331, 337.
20
January Term, 1997
PROPER DEFERENCE SHOULD BE GIVEN TO THE
TRIAL COURT’S FACTUAL FINDINGS
{¶ 48} A determination that evidence seized by police is the product of an
illegal detention ordinarily obviates the need for a court to determine whether
consent to search was, in fact, voluntarily given. Royer, 460 U.S. at 501,
103 S.Ct.
at 1326,
75 L.Ed.2d at 238. The evidence is to be suppressed unless the state can
demonstrate that consent to the search was given by the defendant as an
independent act of free will.
Id. No such showing was made by the state in this
case. Accordingly, this court’s analysis should end at its determination that consent
to search was the product of the illegal detention.
{¶ 49} The majority, nonetheless, reviews the trial court’s factual finding
that consent was voluntarily given. In reversing the trial court’s finding of
voluntariness, the majority does not defer to the trial court as the trier of fact. The
question of whether consent is voluntarily given, unlike the inquiry into whether a
police encounter constitutes a seizure, however, is a pure question of fact, requiring
the trier of fact to determine what the defendant subjectively believed. Compare
Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227,
93 S.Ct. 2041, 2047-2048,
36 L.Ed.2d 854, 862 (“question whether a consent to a search was in fact 'voluntary'
or was the product of duress or coercion, express or implied, is a question of fact to
be determined from the totality of all the circumstances”), with
Chesternut, supra,486 U.S. at 574,
108 S.Ct. at 1980,
100 L.Ed.2d at 572 (“ ‘reasonable person’
standard [used to determine whether a seizure has occurred] ensures that the scope
of Fourth Amendment protection does not vary with the state of mind of the
particular individual being approached”).
“At a suppression hearing, the evaluation of evidence and the credibility of
witnesses are issues for the trier of fact.” State v. Mills (1992), 62 Ohio St.3d 357,
366,
582 N.E.2d 972, 982. In cases such as this, where there are two reasonable
views of the evidence, an appellate court is not free to choose the view that it
21
SUPREME COURT OF OHIO
prefers. Instead, the appellate court must yield to the trier of fact, who “is best able
to view the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.”
Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408,
411,
461 N.E.2d 1273, 1276.
CONCLUSION
{¶ 50} Although I disagree with much of the majority’s analysis, I concur
in its disposition of this case based solely on the state’s failure to demonstrate that
Robinette’s consent was procured during a period of legal detention. The state
carries the burden of proving that a warrantless search or seizure is constitutionally
permissible. Xenia v. Wallace (1988), 37 Ohio St.3d 216,
524 N.E.2d 889,
paragraph two of the syllabus. In this case, the state failed to meet that burden.
__________________
FRANCIS E. SWEENEY, SR., J., dissenting.
{¶ 51} In State v. Robinette (1995), 73 Ohio St.3d 650,
653 N.E.2d 695, I
rejected the majority’s “bright line” test, which required police officers to recite
certain words before instituting a consensual interrogation. Instead, I stated that
the correct test to be applied is the totality-of-the-circumstances test, which takes
into consideration all of the circumstances surrounding the encounter.
Id. at 655-
658,
653 N.E.2d at 699-701 (F.E. Sweeney, J., dissenting). The United States
Supreme Court also eschewed the bright-line test and stated that voluntariness is a
question of fact to be determined from all the circumstances. Ohio v. Robinette
(1996),
519 U.S. ___, ___,
117 S.Ct. 417, 421,
136 L.Ed.2d 347, 355. The Supreme
Court reversed the judgment and remanded the cause to this court. Upon remand,
the majority now applies the correct test (totality of the circumstances), but, in my
opinion, still reaches the wrong result.
{¶ 52} Based upon the testimony presented, it is clear that Robinette
consented to the search of his vehicle. Robinette specifically stated that he thought
22
January Term, 1997
he was free to leave at the time the police officer asked whether he could search the
vehicle. Robinette conceded that the police officer was nice to him during the
encounter and acted in a nonthreatening manner. Based upon these facts, I am
unwilling to hold that Robinette “merely submitted to ‘a claim of lawful authority’”
as the majority concludes. Instead, under the totality of the circumstances, I believe
that there was no coercion and that Robinette voluntarily consented to the search of
the vehicle.
{¶ 53} Accordingly, I would reverse the judgment of the court of appeals
and reinstate the trial court’s judgment.
DOUGLAS, J., concurs in the foregoing dissenting opinion.
__________________
23
