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!

When Obstructing Official Business Does Not Add Up: A Look At How An Arrest For Obstructing Official Business Was Not Supported By Specific And Articulable Facts

Not going to lie, when I first started reading State v. Nasca, 2016-Ohio-8223, I did not expect the trial court or the appellate court to come down in favor of the defendant.  To be honest, it does not take much for an obstructing of official business charge to stick.

In Nasca, Deputy Mullet of the Ashtabula County Sheriff’s Department, was dispatched to Nasca’s residence based on an anonymous informant alleging that Nasca’s son was in possession of a firearm and threatening suicide.  Deputy Mullet attempted to make telephone contact with any occupants of the residence but was unsuccessful.

Before going on, I would like to take a moment that when reading this case; my image of Deputy Mullet not only has a mullet but that he also has a beautiful 1970s mustache.  I also imagined that when someone asks Deputy Mullet what he does for a living he simply states in a low gruff voice, “I bust punks for a living.”

Moving on, Deputy Mullet testified that he was aware that Nasca used his garage to enter the residence which was guarded by large dogs due to being called to the residence before.  Deputy Mullet yelled from outside of the garage that he was there, but no one came outside at that time.

Deputy Mullet then began to knock of the front door.  After waiting two to three minutes, Nasca responded to the knocking.  Deputy Mullet told Mr. Nasca that he was there to check on Nasca’s son.  Nasca told Deputy Mullet that he believed his son was downstairs.  Nasca left Deputy Mullet and began to go down his stairs.  Nasca, however, did not immediately return and Deputy Mullet began knocking on the front door again.

After about five minutes later, Nasca came outside, put his dogs away, and spoke with the officers inside the garage.  When asked by Deputy Mullet why it took him so long to return, Nasca did not provide a straight answer.  As their conversation continued, Nasca became upset, turned to walk inside his house, and told the officers to come back with a warrant.

Deputy Mullet stopped Nasca, grabbed his wrist, and advised him that he was going to detain him due to the severity of the investigation, i.e., that the officers believed Nasca was in danger due to the report that a suicidal person with a gun was inside the residence.  Nasca pulled away from the Deputy Mullet.  Deputy Mullet in turn, told Nasca that he was under arrest for obstructing official business.  Nasca continued to resist and was subsequently placed under arrest.

On cross-examination, Deputy Mullet testified that the anonymous informant called from outside of Ashtabula County.  Thus, the anonymous call did not come from Nasca’s residence.  In addition, the caller did not say whether or not he or she was with Christopher at the home.  Deputy Mullet stated that the purpose of the investigation and converging on Nasca’s residence was solely to investigate a suicide threat and that no one at the home was under suspicion of any criminal activity.  During Deputy Mullet’s time at Nasca’s residence, Deputy Mullet saw no signs that the residents had engaged in a struggle, saw no visible blood anywhere, and heard no calls for help or any gunshots.

Following the suppression hearing, the trial judge made the following observations from the bench:

“First of all, the Defendant is the father, and it seems to me that while there may have been reasonable concerns on the part of the officer or officers at the outset, I think the Court is very mindful of the fact that they spoke to Nasca, who lives at that residence, and the father went back into the house and was gone for three to five minutes.

Now, to me, that three to five-minute delay works against the State, because I’m going to – – I think I’m entitled to assume that the father was looking into the situation himself and was able to make a determination that there was no danger to his son, for whatever reasons he decided to rely upon.

And there’s no evidence that Defendant was impaired or unable to make rational judgments, so when the officer went to the door and the father takes it upon himself to look around the house and apparently is unconcerned himself, to me, that dissipates the existence of an emergency or other so-called exigent circumstances.  I think those exigent circumstances for the emergency situation went away, after the father had a chance to investigate.

And I thing that in this matter, there’s, from the evidence, I’d find that there was too much speculation on the part of the arresting officers in this case as to what was going on with Nasca’s son or what wasn’t.

So at any rate, I think that the action of arresting the Defendant or seeking to arrest the Defendant for obstruction is excessive and unwarranted and was not justified by the fact pattern we have before us.”

The State, however, did not like the trial court’s reasoning and appealed to the Eleventh District Court of Appeals.

The appellate court determined that the obstructing official business charge against Nasca is excessive and unwarranted based on the facts presented in the case.  The circumstances here, when viewed objectively, do not justify the officer’s continued actions.  State v. Minear, 2010-Ohio-6577.

The appellate court went on to state that Ohio courts have recognized three categories of informants: (1) citizen informants; (2) known informants, i.e., those from the criminal world who have previously provided reliable tips; and (3) anonymous informants, who are comparatively unreliable.  Maumee v. Weisner, 87 Ohio St.3d 295 (1999).

The appellate court found the following with regards to the anonymous caller:

1)         The anonymous call did not come from Nasca’s residence;

2)        The anonymous informant did not say he or she was with Nasca’s son at the home;

3)        The call was not from someone at the residence who saw Nasca’s son with a gun.

Thus, the appellate court held that unlike a citizen informant or a known informant, this anonymous informant was comparatively unreliable.

The appellate court went on to find the following facts in favor of Nasca:

1)         During the initial investigation, there were no signs that anyone was in danger;

2)        There were no signs that the residents had engaged in a struggle;

3)        There was no visible blood anywhere;

4)        The officers heard no calls for help or any gunshots;

5)         When speaking to Nasca through the door, Nasca did not seem at all concerned about his son;

6)        Nasca went to check on his son;

7)         There was no evidence that Nasca appeared to be in any immediate danger;

8)        There was no need for emergency or any immediate need to provide medical attention.

Based on the above facts, the appellate court found that the officers were not justified in seizing Nasca and restraining from re-entering his home.

This was a very fact specific case and I believe could have gone either way!

Muddling The Second District’s Requirement For Expert Or Lay Testimony On Driver’s Impairment For Conviction Under R.C. 4511.19.

This article is from guest writer Tammy Chavez.  Tammy is a Third Year Law Student at the University of Dayton and is a current Extern at Holzfaster, Cecil, McKnight & Mues.  

“When the effects of a drug are sufficiently well known. . . expert testimony linking ingestion of the drug with indicia of impairment is unnecessary.”

What is “sufficiently well known”?

In State v. May, 2014-Ohio-1542, the Second District set forth a key requirement to establish a violation of R.C. 4511.19(A)(1)(a). Under R.C. 4511.19(A)(1)(a), “[n]o person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation… [t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.” R.C. 4506.01 defines drug of abuse as “any controlled substance, dangerous drug. . ., or over-the-counter medication that, when taken in quantities exceeding the recommended dosage, can result in impairment of judgment or reflexes.”

The Second district recognized the “essence of R.C. 4511.19(A)(1)(a) is to prohibit impaired driving under the influence” and not to “criminalize the operation of a vehicle by a person taking cholesterol or blood pressure medication, let alone an anti-narcoleptic or ADHD prescription, unless that drug negatively influence’s the defendant’s driving abilities.”

Therefore, in order to be convicted under R.C. 4511.19(A)(1)(a), the State must prove that the prescription drug negatively influenced a person’s driving abilities, not simply that the person was prescribed or consumed the drugs.

The Second District acknowledged that in many situations involving prescription drugs, the only way to prove that the prescription drug negatively influenced a person’s driving abilities, is through testimony by an expert “who is familiar with the potential side effects of the medication” or a layperson, such as a friend or family member, who witnessed the effect of the particular drug on the driver. Without this information, the jury does not have means to evaluate whether a person’s apparent impairment was due to his or her being under the influence of that medication.

In sum, the Second District in State v. May, concluded that “in order to establish a violation of R.C. 4511.19(A)(1)(a) based on medication, the State must also present some evidence (1) of how the particular medication actually affects the defendant, and/or (2) that the particular medication has the potential to impair a person’s judgment or reflexes.”

Citing to State v. May, the Second District Court of Appeals reversed Clinton Richardson’s conviction for operating a vehicle while under the influence in State v. Richardson, 2015-Ohio-757. In 2012, Mr. Richardson was involved in a car accident. Although there were no injuries, the police were called due to Mr. Richardson’s “impaired” condition. Mr. Richardson stated that two days before the accident he ran out of medication—hydrocodone (a “painkiller”) and was thus suffering from withdrawal at the time of the accident. Mr. Richardson testified that he had insomnia, was disoriented, fatigued, weak, sweating, had cold chills, vomiting, and diarrhea. At trial, a medical expert testified that there was a decent possibility that Mr. Richardson was withdrawing from opiates based on Mr. Richardson’s symptoms, but he was not certain.

The Second District Court of Appeals noted that the requirement previously set forth in State v. May had not been satisfied, and vacated the trial court’s judgment convicting Mr. Richardson. During trial, the State did not provide testimony that Mr. Richardson’s medication caused him to have any side effects, and there was no evidence as to what those side effects typically might be. In addition, the State did not present expert testimony that hydrocodone could in fact impair a person’s judgment or reflexes. As a result, there was an extreme level of uncertainty, does hydrocodone cause impairment? Was Mr. Richardson in fact driving under the influence, or was he simply and unfortunately, experiencing withdrawals from hydrocodone? The Second District Court of Appeals reasoned that the State should have provided testimony (expert or lay person) in accordance with State v. May.

In 2016, the Supreme Court of Ohio reversed the Second District Court of Appeals decision in 2016-Ohio-8448. Although, the Ohio Supreme Court did not overturn State v. May’s requirement of expert or lay person’s testimony, it adopted a vague standard for overriding the requirement. The Court stated, “[w]hen the effects of a drug are sufficiently well known. . . expert testimony linking ingestion of the drug with indicia of impairment is unnecessary.” The question is, what is “sufficiently well known”?

In my opinion, the Court’s decision to adopt a standard overriding the State v. May’s requirement was to alleviate the State’s burden (and cost) of presenting additional witnesses. However, the Court’s purpose is refuted by the standard’s vagueness. This standard leaves the State in a bind, the State has to guess how a judge or jury might interpret “sufficiently well known.” When does knowledge of the effects of a drug become “sufficiently well known”? And sufficiently well known to whom—to police officers? To the public? The State is left with a risky decision.

The extreme level of uncertainty and its implications, demonstrates the importance of following State v. May. Mr. Richardson’s conviction carried a one-year prison sentence. That is to say, one year without a fundamental right—freedom. Overriding a necessary requirement for a standard that only muddles the State’s obligations certainly does not seem like the right standard to strip a person from their right to freedom.