IN THE SUPREME COURT OF OHIO

STATE OF OHIOPlaintiff-Appellee

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On Appeal from theSecond District Courtof Appeals-MontgomeryCounty

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Court of AppealsCase No. 25389

vs.

DAVID OHLERTDefendant-Appellant

MEMORANDUM IN SUPPORT OF JURISDICTIONOF DEFENDANT-APPELLANT DAVID OHLERT

Andrew Sexton (0070892)City of Dayton's Prosecutor's Office335 West Third St.Dayton, Ohio 45402(937) 229-3810

John Danish (0046639)City Attorney

Stephanie Cook (0067101)Chief Prosecutor

Attorneys for Piaintiff-Appellee

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Thaddeus A. HoffmeisterUniversity of Dayton Law Clinic300 College ParkDayton, Ohio 45469(937) 229-3810

Chasiti P. RossLegal Intern

Attorneys for Defendant-Appellant

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TABLE OF CONTENTS

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALIN TE RE S T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . .......................................................... ... 4

STATEMENT OF THE FACTS ............... ....>.......... .................................. 5

ARGIIMENT IN SUPPORT OF PROPOSITIONS OF LAW ....... .. .. ... ....... ... .......... 8

1. Under the Fourth Amendment of the United States Constitution,lVir. Ohlert'srights were violated when he was stopped and searched without reasonablesuspicion and the encounter was not consensual ............... . .... .. .... . 8

a. The encounter between Mr. Ohiert and Detective Auricchio was not aconsensual encounter.............................................................. 8

b. Mr. ahlert did not voluntarily consent to a search by merely acquiescing to apolice officer's leading request. .... ........ ..... .............. .... ... 13

II. Under the Fourth Amendment of the United States Constitution, Mr. dhlert's rightswere violated when, a pat down for weapons was conducted without reasonablesuspicion of the presence of a weapon or immediate danger and the scope of the patdown was exceeded.. .................................................................. . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . ... 17

CERTIFICATE OF SERVICE....... .. ..... ................ . ....................................... 18

Approximate Page

APPENDIX .............. ..... :.,....................... .........,..,........ 1

Decision of the Second District Court of Appeals-Montgomery County

(June 22, 2013)

2

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTEREST

David Ohiert, defendant-appellant, after an unsuccessful motion to suppress, pled guilty

to possession of a drug abuse instrument, in violation of R.C. 2925.12(A). This conviction was

affirmed by the Second District Court of Appeals which held that Mr. Ohlert's encounter with

the police was a voluntary one and that he consented to the pat down by the officer. The court

fiirther held that the syringe was in the officer's plain view, thus the officer was within the

bounds of the law when he seized it. Consequently, the decision of the trial court was upheld.

This case involves the important public policy issue of where the line is to be drawn on

investigative stops in terms of consent. The real question is at what point does the conduct of the

police officer cross over that line. To permit the police to make this kind of random stop, absent

probable cause or consent, opens the door to random stops of any person for any reason or for no

reason at all. It is the contention of the Appellant that the line has been drawn in the instant case

and the police have crossed it. Although Mr. Ohlert partially matched the description of a

suspect in a prior burglary, absent additional detailed information, this did not constitute

reasonable suspicion to stop, detain, and search him. Accordingly, Mr. Oh.lert's constitutionally

guaranteed rights were violated.

More importantly, this case highlights the issue of when a citizen of Ohio can be deemed

to have voluntarily consented to a search by a law enforcement officer. This Court is being

asked to overturn the appellate court's decision and hold that an Ohio citizen cannot be deemed

to have forfeited their constitutional rights under the guise of voluntarily consent to an unlawful

search and seizure by merely submitting or acquiescing to a claim of law-ful authority. It is

illogical to expect a reasonable person, who is being detained and questioned by uniformed and

3

armed police officers about their connection or lack thereof with a recent burglary, to feel free to

disregard the officers and walk away. Instead, under the appellate court decision, the court

defies logic and allows law enforcement to use mere submission and acquiescence under the

guise of consent as a justification for an unlawful search and seizure. The Court must draw the

line between mere acquiescence or submission and voluntary consent, as hundreds of similarly

situated defendants will be impacted by its decision.

STATEMENT OF THE CASE

This case comes before the court on appeal from a plea of no contest before the

Honorable Christopher D. Roberts of the Dayton Municipal Court on August 15, 2012. Upon

entering the no contest plea, Mr. Ohlert was convicted of possession of a drug abuse instrument

in violation of Ohio Revised Code 2925.12(A), a second-degree misdemeanor. On August 22,

2012, sentencing took place and Mr. Ohlert was sentenced to 90 days in jail with court costs

waived due to indigency. The court gave Mr. Ohlert credit for 30 days time served and

suspended the remaining 60 days. He was also put on one-year supervised probation and entered

into a drug treatment program.

Mr. Ohiert's conviction stems from an encounter with the police where he was searched

and a syringe was found protruding from the pocket of his pants. Appellant previously submitted

a Motion to Suppress and the previously scheduled bench trial was converted to a hearing on the

motion on August 15, 2012. The motion was denied on the grounds that Mr. Ohlert's encounter

with the police tvas a voluntary one, thus the search and seizure of Mr. Ohlert was not

unreason.able. Mr. Ohlert filed a timely notice of appeal on Septem_ber 6, 2012. Mr. Ohlert's

sentence was stayed pendin.g the outcome of the appeal by entry of the trial court on August 28,

2012.

4

STATEMENT OF T:HE FACTS

On July 24, 2012, at approximately 18:55, Detective Michael A. Auricchio of the Dayton

Police Department was returning home in an unmarked police vehicle from a special detail

covering a visit by First Lady Michelle Obama. (Tr. 4:21-22, 25; 5:1-2, 9). Detective Auricchio

was traveling through his neighborhood around the 2800 block of Lindale Avenue when he

spotted a white male, later identified as Mr. Ohlert, walking with a white female. (Tr. 5:25; 6:1).

Detective Auricchio took notice of the pair because they matched the descriptions of two

suspects in a burglary that had taken place in the neighborhood three days prior. (Tr. 6:10-13).

The male was described as a white male, approximately 6'5 in height, with light brown hair. (Tr.

6:14-16). The female was described as a white female, shorter, with shoulder length brown hair.

(Tr. 6: 16-17). At the time, the Detective had information about the clothing of the burglary

suspects. (Tr. 17:8-11). According to the Detective however, the clothing associated with the

burglars did not match what either Mr. Ohlert or his f"einale companion were wearing when he

saw them. Id.

More importantly, the police had already identified the burglary suspects by name. (Tr,

17:15-18). However> the detective never took the time to find this out prior to detaining Mr.

Ohlert. Id. Detective Auricchio also did not look into the fact that hours prior to his encounter

with Mr. Ohlert, warrants were placed for two suspects and the female suspect had turned herself

into law enforcement. (Tr. 18:23-25; 19:1-10),

Upon observing the pair, Detective Auricchio claimed he radioed -tlie regional dispatch

center to request ariother unit so that he could make conta.ct with them, but his radio battery died

shortly after the communication. (Tr. 7:9-20). A sergeant witl7 the narcotics division overheard

5

the radio transmission and phoned Detective Auricchio on his cell phone. (Tr. 7:24-25; 8:1-3).

The sergeant then relayed the information to the dispatch center who subsequently dispatched a

unit to assist Detective Auricchio. Id.

Detective Auricchio then proceeded to park his unmarked vehicle which cut off the path

of Mr. Ohlert and his companion. (Tr. 8:18-19). The Detective began shouting at Mr. Ohiert

and his companion asking them questions. Id. He inforzned the two that they partially matched

the physical descriptions of two suspects from a burglary that had been conunitted in the

immediate vicinity three days prior. (Tr. 9:25; 10:1-5). The Detective then asked the pair for

identification and the two informed the Detective they did not have any identification on them.

(Tr. 10:5-6). The pair further stated they did not commit any burglary, and they were from Piqua

and in the neighborhood visiting friends. (Tr. 12:7-10; 13:1-3).

When speaking with Mr. Ohlert and his girlfriend, Detective Auri.cchio was wearing an

official uniform of the Dayton Police Department armed with a service weapon visible on his

side. (Tr.10:25; 11:1-2). Mr. Ohlert and his girlfriend were cooperative throughout the course

of the questioning by Detective Auricchio. (Tr. 26:1-2). Detective Auricchio never informed

Mr. Ohlert or his girlfriend they were free to leave, nor did circumstances indicate they were able

to do so. (Tr. 13:14-16;1.0:7-10). Detective Auricchio detained Mr. Ohlert and his girlfriend

until Sergeant Ponichtera arrived. Id.

Detective Au.ricchio testified that there was nothing suspicious about either N1r. Ohiert or

his companion. (Tr. 21:19-20). He claimed that since he lived in the neighborhood, he knew

almost everyone, but did not recognize'Mr. Ohlert. (Tr. 21:23-25). Moreover, Detective

Auricchio admitted that he had a personal stake in the matter because he lived in the

6

neighborhood. (Tr. 23 :21 -24). 1-le testified that based on this, and the fact that Mr. Ohlert

matched the sparse description of the burglary suspect he decided to approach and question him.

(Tr. 22:2-6). 'Throughout the detention, the Detective testified, "they were very cooperative."

(Tr. 23:7). He also stated that neither Mr. Ohlert nor his girlfriend were acting suspicious,

looked under the influence of any drugs or alcohol., or showed any signs of possessing weapons.

(Tr. 26:5-7). In fact, the Detective admitted, "they were making no threatening motions or -

movements towards me." (Tr. 27:9-10).

Shortly thereafter, Dayton Police Sergeant Ponichtera arrived and exerted control over

the investigation, however, Detective Auricchio remained on the scene. (TR. 12:18-21; 13:23-

25; 14:1-4 35:16-20). Like Detective Aur.icchio, Sergeant Ponichtera never looked into any of

the specifics of the prior crime. (Tr. 34:19-24). After receiving Mr. Ohlert's name, Sergeant

Ponichtera decided to conduct a pat down search for weapons. (Tr. 36:1-3). Sergeant Ponichtera

inforined Mr. Ohlert of his intent to search him and Mr. Ohlert raised his hands above his head,

in a manner the Sergeant described as, "to submit to my request." (Tr. 36:6). He then told Mr.

Ohlert to interlace his fingers and Mr. Ohlert again submitted. (Tr. 49:21-25). During his

encounter with the pair, Sergeant Ponichtera was driving a marked cruiser, wore a Dayton Police

Department uniforzn, and was arnzed with a service weapon visibly displayed on his side, (Tr.

32:1-4; 37:2-3). At this time, Mr. Ohlert and his girlfriend were being detained and questioned

by two Dayton Police Officers, both in uniform, and both having service weapons displayed on

their side. (Tr. 10:25; 11:1-2; 32:1-4; 37:2-3).

During the pat down for weapons, Sergeant Ponichtera reached toward the back of Mr.

Ohlert's pants and felt a tubular object. (Tr. 38:19-22). Sergeant Ponichtera claimed he

immediately knew the object was a syringe. Id. Sergeant Ponichtera then retrieved the syringe

7

from Mr. Ohlert and secured it in his vehicle. (Tr. 38: 23-25; 39:1-3). At that point, Mr. Ohlert

was placed under arrest.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

The Appellant's conviction should be reversed because the appellate court improperly

affirmed the trial court's denial of the Defendant's Motion to Suppress. _ In support of his

position, Appellant offers two propositions of law: (1) under the Fourth Amendment to the

United States Constitution, a defendant's rights are violated when a police officer stops and

searches the defendant without reasonable suspicion and neither the encounter nor the search was

consensual; (2) under the Fourth A.mendment to the United States Constitution, a defendant's

rights are violated when, a weapons pat down is conducted v«:thout reasonable suspicion of the

presence of a weapon or immediate danger and the scope of the pat dovvn was exceeded.

1. Under the Fourth Amendment to the United States Constitution, Mr. Ohlert's rightswere violated when he was stopped and searched without reasonable suspicion andthe encounter was not consensual.

a. The encounter between Mr. Ohlert and. Detective Auricchio was not acvnsensual encounter.

Taking an innocent daytime stroll with your girlfriend near a park that is coincidentally in

an area where a recent burglary was committed does not give rise to suspicion of criminal

activity sufficient to stop, detain, and search an individual under the Fourth Amendment to the

United States Constitution. Moreover, an individual's compliance with a police officer's

investigation when circumstances are such that he or she does not feel free to leave does not

constitute a voluntary consensual encouiiter, Mr. Qhlert's conduct in complying with the

officers was neither voluntary nor consensual. Accordingly, the judgments of the appellate

courts must be vacated.

8

"The Fourth Amendment to the United States Constitution and Section 14, Article I of

the Ohio Constitution secure an individual's right to be free from unreasonable searches and

seizures." State v. 1Vfoore, 2d Dist. Montgomery No. 20198, 2004-Ohio-3783. Appellate Courts

must exclude evidence obtained through searches and seizures that are found to violate the

Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 657 (1961). "A seizure occurs whenever a

police officer accosts an individual and restrains his freedom to walk away." Terry v. Ohio, 392

U.S. 1, at 16 (1968). "A seizure may be affected either by physical force or a show of authority."

t^Inited States v. Mendenhall, 446 U.S. 544, at 553 (1980). Police officers may briefly stop

individuals to investigate possible criminal activity if th.e officers can "point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

warrant that intrusion." Terry v. Ohio (1968), 392 U.S. at 21, 88 S.Ct. at 1880. "These facts

must be judged against an objective standard ... anything less would invite intrusions upon

constitutionally guaranteed rights." Id. The officer makzzig the stop "must have more than a

vague suspicion or `hunch' that criminal activity is afoot" to justify a stop. State v. Rhude

(1993), 91 Ohio App.3d 623, 625.

Except for a few specific and well-delineated exceptions, warrantless searches are "per se

unreasonable" under the Fourth Amendment. State v. Justus, 2005 Ohio 6540, at *2

(Montgomery County Dec. 9, 2005). For this reason, the State has the burden of showing the

validity of a warrantless search. State v..Hilton, Champaign App. No. 08-CA-18, 2009-Ohio-

5744, 21, 22, citing City of'Xenia v. Wallace (1988), 37 Ohio St3d 216, 218, 524 N.E.2d 889.

One exception to the per se rule is when a search is conducted pursuant to consent. State v.

C'ranford, 2011 Ohio 384, at *6 (Montgomery County Jan. 28, 2011).

9

The State is required to show by `clear and positive evidence' that the consent was `freely

and voluntarily' given." State v. Posey (1988), 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (citations

omitted). "A clear and positive standard is not siginificantly different from the clear and

convincing standard of evidence, which is the amount of proof that will produce in the mind of

the trier of fact a finn belief or conviction as to the allegations to be proved. It is an intermediate

standard of proof, being more than a preponderance of the evidence and less than evidence of

beyond a reasonable doubt." State v. Ingram (1992), 82 Ohio App3d 341, 346, 612 N.E.2d 454.

"In order to be valid, consent, however, must be given voluntarily and without duress or

coercion.." State v. Elliot, 1983 WL 2424, at *5 (Clark County May 6, 1983). "Consent that is

the product of official intimidation or harassment is not consent at all. Citizens do not forfeit

their constitutional rights when they are coerced to comply with the request that they would

prefer to refuse." Florida v. Bostick (1991), 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d

389. Furthermore, "the question of 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 the circunistances." Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227, 93

S.Ct. 2401, 2048, 36 L.Ed.2d 854.

In the present case, the encounter between Mr. Ohlert and Detective Auricchio was not a

voluntary or consensual encounter. Detective Auricchio did not have reasonable suspicion to

stop Mr. Ohlert because he was innocently walking near the area of a previous burglary. The

Detective did not observe Mr. Dhlerl engaging in any criminal activity or acting suspicious. In

fact, he testified that there was nothing suspicious about either Mr. Ohlert or his girlfriend. (Tr.

21:19-22). Detective Auricchio stated that he lived in the neighborhood, he knew almost

everyone, but did not recognize Mr. Dhlert. Id. Moreover, Detective Auricchio admitted that he

10

had a personal stake in the matter because he lived in the neighborhood, (Tr. 23:21-24), Thus,

the Detective decided to approach and question Mr. Ohlert based on his personal interest in the

matter, and the fact that Mr. Ohlert matched the generic description of a tall white male. (Tr.

22:2-5).

Furthermore, the Detective testified that even though he knew there were named suspects

in the prior burglary, he did not investigate the matter before detaining Mr. Ohlert. (Tr. 17:19-

22). Had Detective Auricchio exercised even the most minimal amount of due diligence, he

would have discovered that Mr. Ohlert was not a named suspect in the burglary. Id. Also, had he

conducted even a preli.minary investigation, he would have known that hours prior to his

encounter svith Mr. Ohlert and his girlfriend, there were warrants issued for two burglary

suspects and the female suspect had turned herself in to law enforcement. (Tr. 18:20-25).

Moreover, the Detective did not request that Sergeant Ponichtera investigate, even though he

knew the Sergeant had a fully functioning radio and computer. (Tr. 20:5).

More importantly, neither Detective Auricchio nor Sergeant Ponichtera informed Mr.

Ohlert or his girlfriend that they were free to leave at anytime, nor did the surrounding

circumstances indicate an ability to do so, thus the encounter was nonconsensual. (Tr. 13:14-16).

The appellate majority cites to State v. Jones for the proposition that an encounter would not be

rendered nonconsensual merely because an officer does not inform an individual that lie is free to

leave. State v. Ohlert; 2013-Ohio 2579 at ¶23, citing State v. Jones, 112 Ohio App. 3d 206, 678

N>E.2d 285 (2"4 Dist. 1996). While it is true that there is no bright-line test or warning

requirement on the part of the police to inform individuals that they are free to leave. State v.

Robinette, 80 Ohio St. 3d 234 (1997). It is a "totality-of-the circumstances test that is

controiling:..once an individual has been unlawfully detained by law enforcement, for his or her

11

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." Id.

The totality of the circumstances in this case, fails to clearly demonstrate that a

reasonable person would have felt he or she had the freedom to stop answering questions and to

leave at any point. The majority cites to several examples of circumstances in which a seizure

might be present despite the person's failure to leave. Those examples include the threatening

presence of several officers and the display of a weapon. OhZert, 2013 Ohio 2579, citing. Jones,

112 Ohio App, 3d 206. However, the majority fails to cite another factor critical to this case,

"whether the officer summoned the person to hizn, or approached him and identified himself as a

police officer." Jones, supra at 211; State v. Lawrence (Nov. 21, 1995), Franklin App. No.

95APA04-459, citing .tLLendenhall, supra at 554-555.

In this case, Detective Auricchio, in full uniform and armed with a service weapon,

beckoned Mr. Ohlert and his girlfriend to come over to him from fifteen to twenty feet away.

(Tr. 10:15-18). The beckoning of an individual by a uniformed and armed police officer weighs

heavily against the contention that an individual has the freedom to leave. Next, the detective

informed the pair that they matched the physical description of two burglary suspects. (Tr. 10:4-

5). He then detained the pair telling them to wait with him and a "crew" would arrive shortly,

which further suggests they were not free to leave, (Tr. 10:7-10). Moreover, both Detective

Auricchio and Sergeant Ponichtera were in full uniform armed with service weapons visibly

displayed on their sides. (Tr.10: 25; 11:1-2; 32:1-4; 37:2-3). The exanlple cited by the majority

does not state that the weapon must be drawn or brandished, rather it simply states "the display

12

of a weapon by an officer." The weapons on both Detective Auricchio and Sergeant Ponichtera

were displayed in plain view on their sides at all times during the encounter. Id.

The standard here is one of reasonableness and whether or not "a reasonable person

would have believed that he was not free to leave." U S. v. MendenhaZZ, 446 U. S. 544, 554, 100

S.Ct. 1870, 64 L.Ed. 497 (1980). It is the contention of the Appellant that taking into account the

totality of the circumstances and the above listed factors, neither Mr. Ohlert, nor any reasonable

person in his situation would feel as if they had the freedom to walk away, thus it was not a

consensual encounter. The Court of Appeals decision should be overiurned because Detective

Auricchio did not have reasonable articulable suspicion that criminal activity was afoot, nor did

Mr. Ohlert consent to the encounter, thus Mr. Ohlert was seized in violation of the Fourth

Amendment.

b. Mr. Ohlert did not voluntarily consent to a search by merely acquiescing to a

police officer's leading request

Mr. Ohlert merely acquiesced to the pat doAm in response to the officer's leading request.

"It is the State's burden to show, through clear and convincing evidence, that any consent on

which it relies to justify a warrantless search or seizure was freely and voluntarily given.." State

v. DeCaminadda, 148 Ohio App.3d 213, 219 (Montgomery County June 14, 2002). "The test for

voluntariness is whether the statement is the product of rational intellect and free will," State v.

Stewart, 2009 Ohio 2184, at * 3 (Montgomery County May 8, 2009). "It is a question of fact to

be determined by the totality of the circumstances." DeCarninada, 148 Ohio App.3d at 219.

"However, if consent is not explicitly given, it can, on occasion, be implied from a suspect's

conduct and by the circumstances surrounding the search, but [t]his burden is even heavier where

13

voluntary consent was not explicitly given." State v. Mays, 2010 Ohio 3289, at *2 (Franklin

County July 13, 2010). Moreover, mere acquiescence to law enforcement does not constitute

voluntary consent. Id.

In this case, both Detective Auricchio and Sergeant Ponichtera made it clear in their

testimony that Mr. OhleY-t merely acquiesced to their authority. First, Detective Auricchio

testified that he cut off Mr. Ohlert's path and shouted to Mr. Ohlert and began asking he and his

girlfriend questions. (Tr. 8:15-17). Thus, from the beginning, Mr. Dhlert was subjugated to

police force and instantaneously acquiesced to Detective Auricchio's authority. Then, when

Sergeant Ponichtera arrived and told Mr. Ohlert of his intent to search, Mr. Ohlert raised his

hands above his head, in a manner the Sergeant described as "he was complying." (Tr. 49:21-

22). He then told Mr. Ohiert to interlace his fingers and Mr. Ohlert again submitted. (Tr. 49:21-

25). Referring to this act, the Sergeant cemented Mr. Ohlert's mere acquiescence by testifying

that "he was going to submit to me." Id.

Defendant asserts that the dissent was correct on appeal, when it stated, "just as consent

does not require the "talismanic phrase: You have my permission to search." Better-Janusch, 646

F2d. at 764, lack of consent, or mere acquiescence, does not require "No, you do not have my

permission, but you're going to do it anyway, that what can I do about it, but let you proceed."

State v. Ohlert, 2013-Ohio-2579 at 1,143. "Just as consent can be inferred from all the facts and

circumstances, so can. lack of consent or mere acquiescence." Id. at T144. Clearly, Mr. Ohlert's

actions were merely a response conveying an expression of futility in resistance to authority or

acquiescence to the officer's request. Mere acquiescence is not voluntary consent, thus the

search of Mr. Ohlert was in violation of his Fourth Amendment rights.

14

II. Under the Fourth Amendment of the United States Constitution, Mr. Ohiert's rightswere violated when, a pat down for weapons was conducted without reasonablesuspicion of the presence of a weapon or immediate danger and the scope of the patdown was exceeded.

Sergeant Ponichtera conducted an unlawful pat down search of Mr. Ohlert. "If a lawful

stop is made, an officer may conduct a limited protective search for concealed weapons if the

officer reasonably believes that the suspect may be armed or a danger to the officer or others."

State v. Walker, 2012-Ohio-847, at *5 (Montgomery County March 2, 2012), citing Terry v.

Ohio, 392 U.S. 1 at 27 (1968); see also State v. Srraith, 56 Ohio St.2d 405, 407 (Sup. Ct. Ohio

1978) (a pat down search is justified if a reasonably prudent man in the same circuinstances

would reasonably believe that his safety or that of others was in danger). However, "authority to

conduct a pat down. search for weapons does not automatically flow from a lawful stop." Id.

"The purpose of a limited search is to allow the officer to conduct this investigation without fear

of violence, not to discover evidence of crime." Id. "An officer must point to specific,

articulable facts, taken together with rational inferences from those facts that warrant reasonable

intrusion." Walker, 2012-Ohio-84. "The officer need not be absolutely certain that the

individual is armed," rather the test is whether "a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.°" Id. at 27; State v.

Smith, 56 Ohio St.2d 405, 407, 384 N.E.2d 280 (1978).

Assuming, arguendo, that this was a lawful stop, neither officer had any basis to

reasonably believe Mr. Ohlert or his girlfriend were a danger to them or to others. Both

Detective Auricchio and Sergeant Ponichtera testified that throughout the detention, "they [Mr.

Ohlert and his girIfriend] were being cooperative from the start to finish." (Tr. 23:7). Detective

Auricchio also admitted that Mr. Ohlert and his girlfriend were not acting suspicious, nor did

they look under the influence of any drugs or alcohol. (Tr. 26:5-7). Moreover, Detective

25

Auricchio testified that he did not see any sign of weapons on them at all. Id. In fact, Detective

Auricchio admitted "they were making no threatening motions to me or movements towards

me." (Tr. 27:9-11). By their own admission, the officers did not have specific, articulable facts

upon which to conduct a lawful pat down search because they had no belief that their safety or

the safety of others was in danger.

Moreover, the continued searching of a suspect's pocket after concluding that he is not

armed goes beyond the scope of a lawful, warrantless search. Justus, 2005-Ohio-6540, at *5.

Under the plain feel doctrine, an officer may not manipulate any object on the suspect to identify

the object or to determine the incriminating nature. State iJ. Jacko, 2011 Ohio 6494, at * 6

(Montgomery County Dec. 16, 2011). 7 at *5. In Justus, this Court concluded that the officer

was prohibited from continuing his search into the suspect's pocket when he determined that the

"tubular object" he felt was not a weapon. Id. Even though the officer testified that the object he

felt was "consistent with how a hypodermic needle feels," the Court held that it was the "kind of

evidentiary search conducted outside the bounds for weapons searches" authorized by Terry. Id.

Just like the search in Justus, the pat down search in this case was also an unlawful

search. Sergeant Ponichtera went outside the bounds of a weapons search authorized by Terry

when he continued to investigate the syringe. (Tr. 38:19-21). As soon as he realized that the

object in Mr. Ohlert's pocket was not a weapon, he was required in accordance with the holding

in Jristus, to stop further investigation. Instead, in his testimony, Sergeant Ponichtera admitted

that his continued pat down caused Mr. Ohlert to shift his weight, which as a consequence

revealed the syringe. (Tr. 38:7-9). Therefore, the method of the pat down search was unlawful

because Sergeant Ponichtera exceeded the bounds of Terry, when he caused Mr. Ohlert to shift

his weight, to discover evidence of a crime.

16

This Court must reverse the appellate court's decision to ensure that the Fourth

Amendment rights of Ohioans are not infringed upon by holding that an Ohio citizen cannot be

deemed to have voluntarily consented to an unlawful search and seizure by merely submitting or

acquiescing to a claim of lawful authority. Although Mr. Ohlert stated this in his appellate brief,

the court misapplied the totality of the circumstances test. The line between conserrt and

acquiescence is a fine one, but it is one of critical importance. Without a clear distinction, the

line could easily be crossed and many citizens of Ohio would be forced to forfeit their

constitutionally guaranteed rights. Thus, this Court must overturn the appellate court's decision

and hold that mere acquiescence is not the equivalent of consent to validate an otherwise

unlawful search and seizure.

CONCLUSION

Mr. Ohlert, by and through counsel, respectfully urges this Court to accept jurisdiction of

this appeal.

:R.espectfiilly Submitted,

^^ (Al Z

Thaddeus Hof eister Chasiti P. RossAttorney at Law, OSHBA #0081977 Legal InternUniversity of Dayton School of Law-Law Clinic300 College ParkDayton, OH 45469-2750(937) 229-3810(937) 229-4066thoffineisterl-Ca,uda on.edu

CERTIFICATE OF SERVICE

17

The undersigned attorney hereby certifies that a copy of the foregoing was served to theCity of Dayton Prosecutor's Office, Dayton Municipal Court, 301 W. Third St., Dayton, OH45402 on July 31, 2013.

Respectfully Submitted,

-IK If4Thaddeus Haf ster Chasiti RossAttorney at Law, OSHBA #0081977 Legal InternUniversity of Dayton School of Law- Law Clinic300 College ParkDayton, OH 45469-2750(937) 229-3810(937) 229-4066thoffineister lcr,udgy!on. edu

18

9 ^ s

^' .

STAI

_Aks-Qc5

V.

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

'E OF OHIO

f'laintiff Appellee

7 OHLERT

Defendant-Appellant

A:ppellate Case No. 25389

Trial Court Case No. 2012 CR 6161

(Criminal Appeal from Dayton MunicipalCourt)

fJPihJlQN

Rendered on the 21st day of June, 2013.

byjRm

T

J. DANISH, Atty. Reg. #0046639, and STEPHANIE L. COOK, Atty. Reg. #0067101,DREW D. SEXTON, Atty. Reg. #0070892, Dayton City Attarney, 335 W. Tbird St.,72, Dayton, Ohio 45402Attorney for Plaintiff-Appellee

DEUS HOFFMEISTER, Atty. Reg. #0081977, University of Dayton Law Clinic,I, Ohio 48469-2750Attorney for Defendant-Appellant

FAiN, P.J.

{I 1) Defendant-appellant David Ohlert appeals from his conviction and sentence

for Possession of a Drug Abuse Instrument, in violation of R.C. 2925,12(A), a misdemeanor

THE COURT OF APPEALS OF i3HIQSECOND APPELLATE T)ISTRICT

, Ii'

of the! second degree, following a no-contest plea. Ohiert contends that the trial court erred

by ovbrruling his rnotipn to suppress the evidence upon the ground that it was obtained as

1 11 the resu4t of an unlawful search and seizure.

I (12) We conclude that the trial court did not err in overruling Ohlert's motion to

suppress. There is evidence in the record that would support a conclusion that the initial

, 11 cmntoct between Ohlert and the police was a consensual encounter. Thereafter, Ohiert

,

,

to a weapons pat-down. During the pat-down, as a result of Ohlert shifting his

, the clearly recognizable needle-end of a syringe protruded from his jeans pocket,

comihg into plain view of the police officer, who seized it.

113) The judgment of the trial court is Affirmed,

1. The Encounter ant! Search

4} One evening in late July 2012, Dayton Police Detective Michael A. Auricchio

was ^eturning home, in an unmarked car, after having served in a special detail covering

MichelEe Obama's visit to the Dayton area. Auricchio, a 23-year veteran of the Dayton

Department, with fifteen years as a detective, was in uniform, but off duty.

(15) Auricchio noticed Ohiert and a woman, who were on foot. They matched the

descriptions of two suspects in a burglary that had be,en committed in the

iate vicinity three days earlier. Auricchio got out of his car, approached them, and

if he could speak with them for a few minutes.

(16) Auricchio told the pair that they matched the descriptions of two suspects in

burglary in the immediate area. After learning that they had no identification on

Auricchio told them, truthfully, that his radio had stopped working, but that an officer

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DiS7'[t1CT

1 :I!,

was orti his way, and would be there shortly to check out their identities. Ohlert and the

were cooperative during the entire time.

;11 I(17) Three to four minutes later, Dayton Police Sergeant Mark Ponichtera arrived

on the scene and "took over" the investigatiort. Auricchio remained at the scene, however.

decided to do a pat-down.

(18) Ponichtera asked Ohlert: "I would like to pat you down. You don't mind, do

,11 ys^u'?j Ohlert responded, „no." During the pat-down, Ohlert shifted his stance, and the

,11 capped needle-end of a syringe protruded out of his jeans pocket, plainly visible.

immediateiy recognized the object as a hypodermic syringe, and seized it.

II. The Course of Proceedings

9) Ohlert was charged with Possession of a Drug Abuse Instrument. He moved

to suppress the evidence, contending that it was obtained as the result of an unlawful

seareh and seiz.ure.

10} At the conclusion of the hearing, the trial court overruled the motion,

as follows:

O.K. Based upon the evidence and the testimony presented today,

l do believe it was a voluntary encounter. Even if it weren't a voluntary

encounter, I would also believe it to be a reasonable stop based upon the

information. It wasn't just the information that a burglary had occurred in the

area. It was the fact that there was a burglary and you had two people who

were there together who strongly matched the description of those involved

in that burgiary. These weren't just minor details. They were somebody

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DtSTRICT

relatively tall who had the same description and the female who had the

same description. So I believe it was first a voluntary encounter and then,

even if that weren't the case, it was a reasonable stop.

With regards to the fdsk. The officer asked or indicated that he would

like to pat him down and asked the defendant do you mind? And the

defendant said no and raised his hands. I do believe it was a consensual pat

down. I don't believe that the interlocking of the fingers takes it away from

being consensual. I believe that again, itjust ensures the safety of the officer

during the pat down. It was a quick pat down. The officer discovered the

needle.

***

I guess the last point would be to note what the State said: This whole

30

encounter was six to eight minutes from the time Detective Auricchia first

talked to him to the time the defendant was placed in cuffs was

approximately six to eight minutes if you give it the three to four minute time

line that each officer gave. (Paragraph breaks added.)

{I 11} Qhlert pled no contest. He was sentenced to 90 days in jail, with credit for

s served, and the 60-day balance suspended. He was given one year of supervised

;on, and entered into a drug treatment pragram.

12) From his conviction and sentence, Ohlert appeals, assigning two errors:

THE OFFICERS VIOLATED THE APPELLANT'S FOURTH

AMENDMENT RIGHTS WHEN THEY STOPPED AND SEARCHED HIM

WITHOUT REASONABLE SUSPICION.

THE COURT OF APPEALS OF OIiICQSE,CONI3 APPELLATE I?[STRICT

MR. OH[.ERT MERELY ACQUIESGED TO APAT DOWN SEARCH.

{113} In both of his assignments of error, Ohtert essentially contends that the trial

when it overruled his motion to suppress.

with

Ill. C3hiert'a. Contact with the Police Was a Conserrsua! Encounter

{114} We agree with the trial court that Ohlert's contact with Auricchio, and later

was a consensual encounter,

M 15} Ohlert and his female companion were on foot. Auricchio parked his car,

blocking them. After,getting out of his car, Auricchio approached them; he did not

drawI his weapon or "lay hands" upon either of them. Auricchio asked if he could speak

with them:

A. I asked if I could speak with them for a moment and they walked

over towards me. When they got to me I explained the reason why I stopped

and wanted to talk to them. I told them that there has been a burglary a

couple of days earlier in the neighborhood and they matched the physical

description of the two burglars. I asked if they had any identification on them.

They both stated that they did not, My radio was dead, I told them that there

would be a crew here in just a moment and we could check their information

on the radio. I just began asking them some general questions. Where do

you live? They both told me they were from Piqua and just made some small

talk there with them until Sargent [sic] Ponichtera got there.

0. Alright and when you asked them to come back over they were

fifteen or twenty feet away from you, right?

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

11.

A. Rig ht.

Q, Did you command that they come over?

A. Nv;

Q. Did you order them to come over?

A. I don't recall ordering. I just said to the effect that Iwculd like to

speak with you for a couple minutes.

*.^*

Q. How far away from you is Mr. Ottlert while you are having this

small talk?

A. The three of us are standing basically at the back of my car. In

fact, one of them even set a drink on my hood.

Q. OK. Did you tell Mr. Ohlert c,r the female, at any time, that they

had to stay there?

A. I told them that I needed to speak with them. Explained why I

wanted to talk to them and their response was "lNe1l we didn't commit a

burgiary. We are not even from around here." And I just told them if they

don't mind, if you can give me a couple of minutes we will clear this up and

have you on your way.

Q. OK.

A. And they were agreeable to that.

0. They were agreeable to that?

A. Yes,

I'HE COURT OF APPEALS OF 01{10SECOND APPCLI.ATE I?tSTR1&

Q. How long did it take in your estimation for Sargent [sic] Ponichtera

to arrive once you got off the ce#1 phone with the other officer?

A. Three or four minutes.

{¶ 16JAuricchio testified that his purpose throughout the encounter v+ias to establish

^f 1( the identity of the pair, "and then go from there."

{y 17}'Vtlhen Ponichtera arrived in his marked cruiser, he parked it, without blocking

Ohlert and his companion, got out, and "took over" the investigation. Auricchio remained

on the scene. Like Auricchio, Ponichtera did not draw his weapon. Ponichtera used a

tone. Ponichtera testified that the pair were cooperative. He testified that

they were free to leave, although there is no indication that he told them that.

(118) Ponichtera asked Ohiert if he had iderstification. He did not. Ponichtera then

Ohlertforhis name, andben conducted a pat-down search, leading to the discovery

of th6 syringe and ahtert's arrest.

19) A person is seized, for Fourth Amendment purposes, "only when, by means

of physlcaf force or a show of authority, his freedom of movement is restrained." U.S. v.

Mendenhall; 446 U.S. 544, 5,53,100S.Ct. 1870, 64 L.Ed.2d 497 (1980). "C3nty when :such

restraintint is imposed is there any foundation whatever for invoking constitutional

" Id.

{I 20} "JAJ person has been 'seized' within the meaning of the Fourth Amendment

only if, in view of all of the circumstances surrounding the incident, a reasonable person

woufa have believed that he was not free to leave." d. at 554.i j

{¶ 21) "Examples of circumstances that might indicate a seizure, even where-the

person did not attempt to leave, would be the threatening presence of several officers, the

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

the

to a

en

y of a weapon by an officer, some: physical touching of the person of the citizen, or

e of language or tone of voice indicating that compliance with the officer's request

be compelled. * * * . In the absence of some such evidence, otherwise inoffensive

:ftzetweena rrremberefthe public and the police cannot, as a rrtatteroflaw, amount

of tliat person." Id,, at 554-555 ( Emphasis added.)

22) In the case before us, the encounter was commenced by Auricchio, a single

officer; Ponichtera did not arrive on the scene until three or four minutes after the

was underway. Although both offiibers had service firearms, the weapons

holstered throughout the encounter: Neither officer touched Ohlert or his

nion. Both testified that they used conversational tones of voice, saying nothing to

give ahlert. the impression that he was not free to refuse the encounter.

him

for

(123) In State v. Jones, 112 Ohio App,3d 206, 678 N.E.2d 285 (2d Dist.1996), we

a consensual encounter where two police officers approached a passenger in an

identified themselves as police officers, asked to speak with the passenger, asked

identification or, When the passenger indicated he was not carrying identification,

ng information, and then asked forconsent to search his carry-on luggage. We

rejected the passenger's "contention that an encounter is rendered

nonc;vnsensuai merely because an officer does not inform an individual that he is free to

" Id., at 213.

(124) The fact that Ohlert and his companion were told that they matched the

of two suspects in a burglary, three days earlier, makes this a slightly closer

State v. Jones, supra, on the issue of whether a reasonable person in Ohiart's

would believe himself free to reject the encounter. Perhaps if either officer had

THE CO1JR'r OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

his

This

a belief that C7hlert was, in fact, one of the persons who had committed the

the result would be different. But neither officer did so. Auricchio told +C}hiert and

that once their identifications checked out, the encounter would be over.

ests that the officers merely desired to establish the identities of Ohiert and his

so that they could be investigated later, if circumstances warranted.

did

twe

ih€F

and

get

can

whix

(125) Another fact that makes this a slightly closer case is the fact that Auricchio

t go over to Ohlert and his companion, but asked to speak to them from fifteen to

i feet away. In U.S. v. Mendenhall, supra, 446 U.S. at 555, the fact that the agents

case "did rrot sumrroon the respondent to their presence, but instead approached her

themselves as federal agents," was deemed significant. But Auricchio did

f of his cruiser. Furthermore, he testified that he told them "if you don't mind, if you

;t give me a couple of minutes, we will ciearthis up and have you on your way," to

"they were agreeable," This testimony is inconsistent with the proposition that

iio effectively commanded Ohlert and his companion to speak with him.

(¶ 26) We conclude that the trial court was correct in finding this to have been a

rsuai encounter.

IV. Ohlert Consented to the Pat-Down

{127} Ponichtera, on his'arrivai, "took over" the irtvesti;gat°ron from Auricchia. After

ining that Ohlert had no identification, in view of the nature of the area, Ponichtera

to conduct a pat-down. Ponichtera asked Ohlert: 1 would like to pat you down.

You €ton't mind, do you?" To this, C)hlert responded "no," and raised his hands up near his

THE COURT OFAPPEALS OF OHIOSECOND APPELLATE DISTRICT

. I[r

did

did

that

pat

ansi

Pon

seai

{128} Ponichtera testified that he was speaking in a conversational tone of voice,

draw his service weapon, and had not touched C)h(er# up to this point. Ponichtera

Ohiert to interlace his fingers on his head, and Ohlert complied.

29) Ohlert contends that under the totality of the circumstances, he did not

consent to the pat-down, but merely acquiesced in it.

1301 The issue is close. Nevertheless, we agree with the trial court's conclusion

iiert voluntarily consented to the pat-tiown. Ponichtera's question: "I would like to

a down. You don't mind, do you?" was leading in the sense that it suggested the

r Ponichtera expected and wanted. But by putting in the form of a question,

indicated that Ohlert could indicate that he did mind, and object to the pat-down

{¶ 31) Similarly, a search of a passenger on a bus was held to have been

in U. a, v. L3ra;ylon; 536 U.S.194, 206,122 S,Ct. 2105,1531..Ed.2d 242 {2002},

the police officer asked the defendant if he minded if the officer searched him, and

[the officer] said indicated a command to consent to the search."

V. The Seized Syringe Was in the Officer's Plain View

(132) Ponichtera testified conceming his discovery and seizure of the hypodermic

as follows:

A. I start to frisk him. And as I frisk him, I move down his upper body,

And as t reach towards the back of his right pocket, just at the very same

time as I reach the pocket he shifted his weight and he was wearrng kind of

loose fitting jeans and a capped syringe at that point protruded from his

THE COURT OF APPEALS OF OHIOSECOND APPELLATE C11STRiCT

{

pocket and, basicaily, my hand poked the top of the capped syringe at the

very moment that it prctruded. from his pocket.

Q. And when you saw ,., or I guess did you feel or see the syringe

inotially?

A. I felt it and saw it. It was all contemporaneous. As I moved my

hand down his weight shifted and my hand poked the top of the syringe I

knew immediately what it was: •

Q. OK. This isn't something that you had reached into his pocket to

gather?

A. ►do.

Q. Move out or manipulate?

A. No.

Q. OK. Based on your training and experience as a police officer, did

you know what that was immediately?

A. Yes. There was no doubt in my mind I knew what it was and I

could actually see the top of the capped syringe. It's a bright crrdnge. They

are commonplace. A lay person would be able to recognize it.

Q. And did you retrieve that item at that time?

A. ! did,

**,^

Q. And what did you do with Mr. Ohlert after discovering the syringe?

A. Placed the handcuffs on him.

THE COURT OF APPEALS OF 01110SECOND APPELLATE DISTRICT

time?

[

a

the

Q. And what was the reason for placing handcuffs on him at that

A. Well he wasn't free to leave at that point anymore. He had a

syringe. A syringe, in and of itself, isn't necessarily a violation of law if you

are a diabetic or something of that nature, but it was not..,. the way it was

being transported and the way it was in his pocket in the manner of which I

found it was not consistent with somebody who was a diabetic. A person of

normal sense would say if you are a diabetic and deal with needles every

day, if a police officer begins to pat you down, then you would say something.

You would open your mouth and say I am a diabetic, I have a needle. And

that did not occur in this case,

(¶ 33) Ohlert cites State v. Justus, 2d Dist. Montgomery No. 20906, 2005-Uhi4-

for th8 proposition that once it was apparent to Ponichtera that the object in Ohlert's

t was not a weapon, Ponichtera had! no authority to seize it. In Justus, the police

conducting the pat-down felt a tubular object:with a cap on it, "consistent with how

needle feels." !d: at ¶ 22. The officer testified that: "I didn't know for sure

was. I thought it might be a hypodermic needle." Id. at ¶ 24, On cross-examination,

admitted that the object "could have been a pen." k0: at150. We found that this

was (not enough to satisfy the plain-view, or plain-feel, exception to the warrant

{I 34) In the case before us, by contrast, Ponichtera admitted of no uncertainty in

his recognition of the object in Ohlert`s pocket as a hypodermic syringe, based on his visual

of the capped needle.

TFiE cOUE2T oF A6PEALS OF OHIOSECOND A['PBL,LA'fE DISTRICT

While a police officer is conducting a lawful pat-down search for

weapons, the officer may retrieve any contraband or incriminating evidence

that he feels during the course of the pat-down, as long as the incriminating

character ofithe contraband is immediately apparent to the officerthrough his

sense of touch. Minnesota v. L'?ickerson.(1993), 508 U.S. 366, 375-376,113

S.Ct. 2130, 124 L.Ed.2d 334. In this centext, an abject's ineriminating

character is immediately apparent if the police officer has probable cause to

associate the object with criminal activity. State v. Hafc,zyszak (1986), 25

Ohio St.3d 301, 496 N.E.2d 925, paragraph three of syilabus. Probable

cause to associate an object with criminal activity does not demand certainty

in the minds of police, but instead merely requires that there be a"fair

probability" that the object they see [or feet] is illegal contraband or evidence

of a crime. State v. Thompson (1999), 134 Ohio App.3d 1, at 4, 729 N.E.2d

1268. State v. Jones, 2d Dist. Montgomery No, 19248, 2002-Ohio-4681, ¶

10.

(135) Ponichtera immediately recognized the object protruding from Ohlert's pants

to be a hypodermic syringe. For the reasons he indicated in his testimony, he had

ble cause to associate that crbjeot with criminal activity. Therefore, he was;ustified

in it.

►!i. Conclusion

{T 36} Both of phlert's assignments of error are overru.led. The judgment of the trial

is Affirmed.

THE COURT OF APPEALS OF C}HIOSECOND APPELLATE 17IS'CRfCT

WELBAUM,A:UtVI, J., concurs.

f+KOELICH, J., dissenting:

{137} Uniformed Dayton Police Officer Michael Auricchio pulled his unmarked

vehicle about 15-20 feet from the defendant. He then. asked the defendant and his

if he could speak with them, and they went over to where he was standing. He

told

be

na

he rleeded to talk to them about a recent burglary and that another officer would

ng to the scene.

(138) Sgt. Mark Ponichtera arrived three or four minutes later in uniform and a

cnaiser. He asked the defendant for identification and the defendant provided his

Sgt. Ponichtera testified:

*"" And at that point, you know, the area that they were in I decided

to conduct a patdown. And I asked him, I said "I would like to pat you down,

you don't mind do you?" And he said "no°' and he actually raised his hands

up in a manner such as this. I am holding my hands up near my head. In a

manner like this as to submit or comply to my request. [T. 361

«**

After he raised his hands up at that point, you know, he was

complying. At that point, I asked him to actually interlace his fingers onto his

head. So in a more tactical manner. He was going to submit to me. I asked

him to go ahead and do that. So when he did that I began to pat him down.

[T. 49)

THC COURT OF APPEALS OF OHIOSECOND APPELLATE 171STR]GT

of

543,

(139) When the prosecution relies upon. a consent search theory, it has the burden

by "clear and positive evidence" that the consent was voluntary. State v.

Iy, 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988), Sumperv. North Carolina, 391 U.S.

1788, 20 L:Ed.2d 797 (1968). Mere acquiescence to a claim of lawful

rity cannot discharge this burden. Burnperat 548-549.

(140) The consent may be in the form of words, gesture, or conduct. State v.

2d Dist. Montgomery No. 21501, 2006-Qhio-68,30, ¶39,

Courts and commentators have recognized that "consent [to search] may be

impiied by the circumstances surrounding the search, by the person's prior

actions or agreements, or by the person's failure to object to the search."

Kuras, et al., Warrantless Searches and Seizures (2002), 90 Geo.L.J. 1130,

1172. "Thus, a search may be lawful even if the person giving cansent does

not recite the talismanic phrase: 'You have my permission to search.'" United

States v. Better-Janusch (C.A. 2, 1981), 646 F.2d 759, 764. See, also,

€Inited States v. Weseta (C.A.7, 2000), 223 F.3d 65fi, 661("The d istrict court

reasonably concluded that Mrs. Wesela at the very least implicitly consented

to the search."); iJrtitecl States v. Gorrlon (C.A:1q, 1999), 173 F.3d 761, 766

(10th Cir.1999) ("Non-verbal conduct, considered with other factors, can

constitute voluntary consent to search."); United States V. Gilbert (C.A.9,

1985), 774 F.2d 962, 964 (9th Cir,1985) ("Appellant`s request that the officers

obtain hercfothing necessarily implied consenttc enterthe bedroom in which

she said the clothing was located."); United States v. Be(fer:,Jancrsch (C,A.2,

1981), 646 F.2d 759, 764 ("Mc:reouer, it is well settled that consent may be

THE COURT 0F APPEALS QF OHIOSECOND APPELLATE DISTRICT

^.

Lane

we

inferred from an individual's words, gestures, or conduct."); Ur►itedStates v.

Turbyfill(C.A,8, 1975), 525 F.2d 57, 59 ("An invitation or consent to enter a

house may be impiied as well as expressed.").

it14a.

(141) In State v. Arraold, 2d Dist, Montgomery No. 24195, 2011-Cihio-238, ¶ 20-22,

Under applicable legal standards, the State has the burden of showing

the validity of a u+arrantless search, because vvarranttess searches are "'per

se unreasonable under the Fourth Amendment-subject only to a few

specifically established and well delineated exceptionse„' State v. Hilton,

Champaign App. No. 08-CA-18, 2009-Ohio-5744, ¶21-22, citing City of

Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889.

Consent is one exception to the warrant requirement, and requires the

State to show by „'elear and posi#iva' evidence that the cQnsent was 'freely

and voluntarily' given." State v. Posey (1988), 40 Ohio St.3d 420, 427, 534

N.E.2d 61 (citations omitted). "A 'clear and positive' standard is not

signif€cantly different from the `c(ear and convincirig' standard of evidence,

which is the arr€ount of proof that will produce in the mind of the trier of fact

a firm belief or conviction as to the allegations to be proved. It is an

intermediate standard of proof, being more than a preponderance of the

evidence and less than evidence beyond a reasonable daubt." State v.

Ingram (1992),82 Ohio App.3d 341,346,612 N.E.2d 454 (citations omittad).

THE COURT OF APPEALS OF Ot:i€OSECOND APPELLATE D€STR€OT

In order to be valid, consent cannot be the product of coercion:

Consent' that is the product of official intimidation or harassment is not

consent at all. Citizens do not forfeit their constitutional rights when they are

coerced to comply with a request that they would prefer to refuse." Florida

v. Bostick (1991), 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389.

Furthermore, "the question whether a consent to a search was in fact

`voiuntary' 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."

Schneckloth v. Busfamonte (1973), 412 U.S. 218, 227, 93 S.Ct. 2041, 2048,

36 LEd.2d 854.

(142) 1 do not believe the facts support a finding by "clear and positive" evidence

that ^onsent was "freely and voiuntariiyn given. A uniformed, armed officer asked the

defe I dant to come over to him from 15-20 feet away and questioned him about his

matching the description of a suspect in a recent burglary. Another officer, in uniform and

a

was

a

cruiser, arrived within three or four minutes, separated the defendant from his

nion, questioned the defendant, and "decided to conduct a patdown." The officer

if the defendant minded if he were patted down; the defendant raised his hands ("he

)mp(ying") and the officer asked him to "interlace his fingers'" onto his head. "So in

tactical manner: He was going to submit to me. I asked him to go ahead and do

that, So when he did that I began to pat him dawn."

1 acquii

{143} Just as consent does not require the "talismanic phrase: 'You have my

to search,'" Bett+er-Janusch, 646 F.2d at 764, lack of consent, or mere

does not require "No, you do not have my permission, but you're going to

THE COIJRT OF APPEALS OF OHIO5ECt7:NC) APPELLATE DISTRICT

.,

{

do it

the

a

so what can I do about it, but let you proceed." And just as consent may be

from ali the facts and circumstances, so can lack of consent or mere

{144) Perhaps as lawyers,ludges, and professional law enforcement officials,. we

the legal conciusion that the defendant in this situation could have voiced his

ons and that then, perhaps, the pat down search would not have occurred. 8ut, with

ality of the facts before the court, a finding that the defendant, or any reasonable

in his position, was freely and voluntarily agreeing to be searched is to indulge in

,

{

mailed to:

John`J. Danish t Stephanie L. CookAndrew D. ,exton,Thaddeus HoffmeisterHon. (Christopher D. Roberts

THE COURT OF APPEALS OF 41110SECOND APPELLATE t)iSTRICT