Consent As An Exception Of The Warrant Requirement: A Look At How Consent To Search Was Not Freely And Voluntarily Given By Clear And Positive Evidence

State v. Oberholtz, 2016-Ohio-8506, starts off like most criminal stories start off these days, cops arriving on scene of a domestic disturbance over a simple text message.

In Oberholtz, Officers Rouse and Tassone responded to a dispatch about a domestic fight on street named Iona Avenue.  When the officers arrived on location, the officers saw a man and a woman arguing while walking down the street.  The officers parked nearby, got out of their cruiser, and walked up the driveway of the house the couple was located.  Like most domestic situations, the officers split the couple up to talk with them separately.  Officer Rouse took the male subject and Officer Tassone took the female subject.  The female subject is named Janelle Oberholtz.

When questioned by Officer Tassone, Oberholtz stated that she and the other man were just arguing and that everything was fine.  Oberholtz went on to state that she and the man were arguing over a text message.  Right after making those statements, Officer Tassone stated, “okay” and ask Oberholtz whether or not she had anything illegal on her person.  As soon as Oberholtz indicated that she did not, Officer Tassone asked whether she could check, and Oberholtz assented.  Officer Tassone instructed Oberholtz to raise her hands up and put them behind her head and then asked whether she could go in Oberholtz’s pockets, to which Oberholtz agreed.  During the search, Officer Tassone found a baggie of methamphetamine.  Oberholtz moved to suppress the physical evidence gathered by the officers, arguing that they had violated her Fourth Amendment rights.

Following a suppression hearing, the trial court granted Oberholtz’s motion, concluding that the State had failed to establish that Oberholtz voluntarily consented to the search of her person, including her pockets.  The State appealed.

On appeal, the State conceded that Officer Tassone’s search of Oberholtz was not the limited pat-down search for weapons authorized by Terry v. Ohio, 392 U.S. 1 (1968).  The State, instead, argued that the search was authorized because Oberholtz consented to it.

The State argued the following:

1)         Oberholtz replied “mmm-hmmm” when Officer Tassone asked whether she could check Oberholtz for anything illegal.  Albeit, Officer Tassone’s body camera video was not clearly audible.

2)        Oberholtz answered “yeah” when asked whether Officer Tassone could search in her pockets.

3)        That even if a response cannot be heard on the officer’s body-camera recording, it does not negate the officer’s testimony about what was said.

4)        The State points out the Officer Tassone testified at the suppression hearing that Oberholtz consented to the search.

The trial court found the following after the hearing:

1)         The officers were permitted to initially stop Oberholtz to investigate the reason for the dispatch.

2)        Upon being informed by Oberholtz that she and the male were just yelling at each other and that they were fine, Officer Tassone turned the encounter into an investigation into possible drug activity that “was not based on any articulable facts giving rise to a suspicion of illegal activity justifying an extension of the detention.”

3)        Under the totality of the circumstances, Oberholtz’s alleged consent to the search of her person, including her pockets, was “better characterized as mere acquiescence to Officer Tassone’s claim of lawful authority.”

Based on those findings, the trial court concluded that the State failed to establish that Oberholtz consented to the search of her person, including the search of her pockets and under her clothing, and that the search, therefore, violated Oberholtz’s Fourth Amendment rights.

Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, but it is “well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

In order to rely on the consent exception of the warrant requirement, the State must demonstrate that the consent was freely and voluntarily given.  State v. Starks, 2015-Ohio-5474, quoting Bumper v. North Carolina, 391 U.S. 543 (1968).  The government bears the burden of showing that consent was freely and voluntarily given by clear and positive evidence.  Id.  Voluntariness is a question of fact to be judged by the totality of the circumstances.  State v. Robinson, 2012-Ohio-2428.

“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.”  State v. Robinette, 80 Ohio St.3d 234 (1997).

Based on the above, the appellate court found Officer Tassone’s transition from proper to improper questioning was “seamless.”  By “seamless,” the appellate court found Officer Tassone’s actions to be an undetectable transition used by police officers to coerce citizens into answering questions that the not need answered, as explained in Robinette.

After reviewing the facts, the appellate court ultimately held that under the totality of the circumstances, Oberholtz’s replies to Officer Tassone did not clearly indicate that her consent was an independent act of free will instead of mere acquiescence or submission to Officer Tassone’s claim of lawful authority.

Once again, it looks like “the totality of the circumstances” strikes again on a very fact specific case!

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