The Ohio Supreme Court recently reaffirmed limits on the admissibility of evidence seized during common vehicular searches. In a November 12 ruling, the Court found that consent cannot be presumed voluntary merely because it is given without overt coercion.
Writing for the Court, Justice Evelyn Lundberg Stratton stated that voluntariness must be determined under the totality of circumstances surrounding the incident and must be decided on a case by case basis. Stratton cited the U.S. Supreme Court decision in Florida v. Royer which determined that “[T]he 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.”
Defendant Robert D. Robinette was cited for speeding in 1995 and given a verbal warning. Officer Roger Newsome then asked Robinette if he had contraband. When Robinette replied, “No,” the officer requested permission to search Robinette’s car. Robinette testified that he did not feel he could refuse the officer’s request, so he agreed to the search. The officer found a small amount of marijuana and one methamphetamine pill and Robinette was subsequently charged with a drug offense.
The Ohio high court declared that any reasonable person in Robinette’s position would have felt compelled to submit to the police officer’s request. Hence, Robinette’s consent grew out of implied coercion and was not truly voluntary. The court held that pursuant to the totality of circumstances, Robinette did not voluntarily consent to the search and evidence collected in that search cannot be used against him.
The court noted that the government can bolster its proof of consent by demonstrating that police officers clearly and unambiguously tell drivers when they are free to go and that they do not have to consent to a search. However, the Court stopped short of requiring police to make such statements. Even if an officer makes such a statement, the totality of circumstances must still be evaluated to determine that consent is voluntary.
Justice Lundberg Stratton concluded her opinion by acknowledging that the Ohio Supreme Court is “very mindful that police officers face the enormous and difficult task of fighting crime…. 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.
The case is cited as Ohio v. Robinette.
For more information, please contact Attorney Tanya Kangas of The NORML Foundation at (202) 483-8751.