[Cite as State v. White,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 25396 : v. : Trial Court Case No. 2012-CR-866 : MEAGAN WHITE : (Criminal Appeal from : (Common Pleas Court) : Defendant-Appellee :

...........

OPINION

Rendered on the 12th day of July , 2013.

...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

VICTOR A. HODGE, Atty. Reg. No. 0007298, Assistant Public Defender, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

.............

DONOVAN, J.

{¶ 1} The State of Ohio appeals from the trial court’s decision sustaining a motion to 2

suppress evidence of heroin that was found in Appellee Meagan White’s vehicle after a traffic

stop. The trial court found that the detaining officer did not articulate sufficient, reasonable facts

objectively suggesting that criminal activity was afoot. As a result, it concluded that the officer

had no legal basis to prolong White’s detention beyond the traffic stop. The trial court also

found that White did not give valid consent for the officer to search her vehicle.

{¶ 2} In support of its appeal, the State contends that, based on the totality of the

circumstances, White gave valid consent to the officer to conduct a search of her vehicle, because

a reasonable person in White’s position would have believed she was free to leave and free to

refuse to answer further questions. The State argues that White’s consent was a knowing and

voluntary act of her own free will, and that the evidence obtained from the search of her vehicle

should not have been suppressed. We conclude that the trial court did not err in suppressing the

heroin found in White’s vehicle. The officer’s continued detention of White was unlawful, and

White’s consent was not freely and voluntarily given.

{¶ 3} At the suppression hearing, Officer Lukas Hammermeister, a ranger with Five

Rivers MetroParks, testified that on March 16, 2012, he was patrolling Wegerzyn Garden

MetroPark in a marked cruiser, at approximately 4:45 p.m., when he observed Meagan White

sitting in her parked car in a rear parking lot away from other vehicles and park buildings. As he

drove by White’s vehicle, Hammermeister observed White hunched over the center console of

her vehicle. White sat up, and upon seeing the officer, she blurted a common epithet.

Hammermeister believed White had a panicked look on her face. White thereafter got out of her

vehicle and walked into the adjacent woods. Hammermeister, who has been a park ranger for

ten years, stated that he has seen similar behavior in the park several times, and that he made 3

arrests based on such behavior. He did not identify the nature of such arrests, however.

Hammermeister believed that White’s actions were somehow suspicious.

{¶ 4} After observing White’s behavior, Hammermeister parked behind a building and

continued to watch White’s vehicle. A few moments later, he observed White return to her

vehicle from the woods and drive away. The officer followed White’s vehicle, and when she

stopped at a stop sign, he noticed that she had a broken tail light. Hammermeister then activated

his cruiser’s overhead lights and initiated a traffic stop. Initially he did not activate his siren.

Hammermeister approached White’s vehicle and immediately notified her that he had pulled her

over due to a broken tail light. He asked for White’s license and registration and confirmed that

her information was valid and that she had no warrants. He noticed that White was nervous

during the traffic stop, her voice was trembling and her hands were shaking. Hammermeister

had called for back up prior to the stop and a second officer, Benjamin Supinger, arrived.

{¶ 5} Hammermeister gave White a verbal warning for the tail light violation and told

her that she was free to leave. However, he immediately asked her “if it was okay [for him] to

ask her a question before [he] got out of there.” White answered, “Yes, you can ask me a

question.” Hammermeister then briefly recounted his observations of her behavior when he

drove by her in the park, and he asked if she had anything illegal inside her car. White stated,

“Not to my knowledge.” Hammermeister then asked for permission to search her vehicle, and

White verbally agreed. Hammermeister did not inform White that she could deny consent to

search her vehicle and need not answer any questions.

{¶ 6} White stepped out of her vehicle, and Hammermeister began his search around

the center console area. He found several sandy brown chunks which he suspected were heroin. 4

Hammermeister had made prior arrests for heroin, thus he was familiar with its appearance.

The search also yielded a marijuana pipe. After locating the contraband, Hammermeister read

White her Miranda rights, which she indicated she understood. He then asked her if what he

had found was heroin, and she said yes.

{¶ 7} White was indicted on April 25, 2012, for possession of heroin, in an amount

less than one gram, in violation of R.C. 2925.11(A). White moved to suppress the heroin as

evidence against her on the grounds that Hammermeister had engaged in an unlawful search and

seizure. On September 27, 2012, the trial court sustained the motion to suppress. The State

now appeals the trial court’s ruling.

{¶ 8} The State’s sole assignment of error is as follows:

THE TRIAL COURT ERRED BY SUPPRESSING THE HEROIN

FOUND IN MEAGAN WHITE’S VEHICLE BY HAMMERMEISTER AFTER

THE PURPOSE OF THE TRAFFIC STOP HE HAD INITIATED WAS OVER

WHERE THE OFFICER TOLD WHITE SHE WAS FREE TO LEAVE AND

ALSO REQUESTED HER PERMISSION TO EVEN ASK HER A QUESTION

PRIOR TO OBTAINING HER VOLUNTARY CONSENT TO THE SEARCH

OF HER VEHICLE.

{¶ 9} The State argues that White gave valid consent for the officer to search her

vehicle, and that under the totality of the circumstances, a reasonable person in White’s position

would have believed she was free to leave. This assertion is based on the fact that

Hammermeister advised White that she was free to leave after the traffic stop ended, and that

White subsequently consented to the officer’s request to search her vehicle. Therefore, the State 5

claims that the heroin found in White’s vehicle was the product of a lawful, consensual search,

and that it should not have been suppressed by the trial court.

{¶ 10} White argues that the totality of the circumstances did not establish reasonable

articulable suspicion of criminal activity to justify detaining her beyond the scope of the

concluded traffic stop. Therefore, White claims her prolonged detention was unlawful, and the

unlawful detention invalidates her consent.

{¶ 11} “In ruling on a motion to suppress, the trial court ‘assumes the role of the trier of

fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of

the witnesses.’ ” State v. Prater, 2d Dist. Montgomery No. 24936,

, quoting

State v. Retherford,

,

(2d Dist. 1994). “As a result,

when we review suppression decisions, ‘we are bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. Accepting those facts as true, we must

independently determine as a matter of law, without deference to the trial court's conclusion,

whether they meet the applicable legal standard.’ ”

{¶ 12} In sustaining White’s motion to suppress, the trial court found the following

relevant facts:

On March 16, 2012, Officer Hammermeister observed a female1 sitting in

her parked car in the rear of the Wegerzyn Garden MetroPark parking lot. As he

drove past her car, Officer Hammermeister saw Defendant hunched over her

center console, sit up and, upon seeing the Officer, blurt a common epithet.

Officer Hammermeister believed Defendant appeared panicked. He then watched

1 Defendant here. 6

her exit her car and walk into the adjacent woods. Officer Hammermeister stated

that this activity, somehow2, was “suspicious” and “consistent with drug activity.”

Moments later he observed Defendant return to her car and drive off.

Officer Hammermeister followed Defendant’s car as it left the park and

noticed that only one tail light was working - which he knew was a traffic

violation. He initiated a traffic stop.

Following the stop, Officer Hammermeister immediately informed

Defendant that he had stopped her for the traffic violation and requested her

license and registration. Officer Hammermeister testified that Defendant was

nervous - her voice was trembling and her hands shaking. After running

Defendant’s information through LEADS and confirming Defendant had a valid

license with no wants or warrants, Officer Hammermeister gave Defendant a

verbal warning and told her she was free to leave. In short, the reason for the

traffic stop was over.

But then, Officer Hammermeister immediately asked: “Can I ask you a

question before I get out of here?” When Defendant said “yes”, Officer

Hammermeister recounted his observations from the park, told Defendant he

thought it odd she was nervous during a minor traffic stop and asked her

permission to search the car - to which search Defendant agreed. Officer

Hammermeister never informed Defendant she could deny consent to search and

the State elicited no facts supporting a conclusion that Defendant’s consent to

2 Although he did not articulate just how this was so. 7

search was not the product of an illegal detention but rather an independent act of

free will.

The search of the car yielded a marijuana pipe and heroin - the genesis of

the instant matter.

{¶ 13} The issues herein are whether White’s continued detention was unlawful and

whether her consent to search her vehicle was valid in light of the fact that Hammermeister

requested her consent during a post-traffic-stop detention. In State v. Ferrante,

,

,

(2d Dist.), this Court explained:

A police officer's request for consent to search a vehicle stopped for a

traffic violation is valid if it is made, and voluntary consent is obtained, during the

period of time reasonably necessary to process the traffic citation; in other words,

while the driver is lawfully detained for the traffic violation. State v. Loffer,

Montgomery App. No. 19594,

[,

]; State v.

Swope (Nov. 9, 1994), Miami App. No. 93CA46[,

]. On the

other hand, once a traffic citation is issued and the purpose of the original stop is

completed, the lawful basis for the detention ceases. If police thereafter seek

consent to search the vehicle absent some reasonable, articulable suspicion of

criminal activity other than the traffic violation, the continued detention is

unlawful. State v. Retherford (1994),

[,

];

State v. Robinette [1997],

[,

] * * *. Any

consent to search obtained during an unlawful detention is tainted and may be

invalid. Retherford. For such consent to be voluntary, the totality of the

circumstances must demonstrate that a reasonable person would believe that he or 8

she had the freedom to refuse to answer further questions and could, in fact, leave.

Robinette. State v. Watts, Montgomery App. No. 21982,

,

, ¶ 12.

{¶ 14} “If the defendant ‘consents’ while being illegally detained, that consent is

vitiated unless the government proves that it was not ‘the product of the illegal detention,’ but the

‘result of an independent act of free will.’ ”

, citing Florida v. Royer,

,

,

(1983). “If, however, no illegal detention occurred,

the state need not demonstrate that appellee's consent was an independent act of free will.

Rather, the state must illustrate that the totality of the circumstances establish that appellee

voluntarily consented to the search.” State v. Bennett, 4th Dist. Ross No. 99 CA 2509,

,*4 (June 21, 2000), citing Schneckloth v. Bustamonte,

,

,

(1973); 3 LaFave, Search and Seizure, Section 8.2(d) (3d Ed. 1996).

{¶ 15} In general, “[l]aw enforcement officers may briefly stop and detain an individual

for investigation if the officers have a reasonable, articulable suspicion that criminal activity may

be afoot.” State v. Studley, 2d Dist. Greene No. 2010 CA 81,

, citing

Terry v. Ohio,

,

,

(1968). Robinette provides:

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. (Emphasis 9

added.)

paragraph one of the syllabus.

{¶ 16} According to Robinette, a continued detention unrelated to the original traffic

stop must be justified by articulable facts giving rise to a reasonable suspicion of criminal

activity to be lawful. A reasonable suspicion of criminal activity “is something more than an

unparticularized suspicion or mere hunch, but less than the level of suspicion required for

probable cause.” Studley at ¶ 54, citing Terry. “To satisfy that standard, police must be able to

point to specific and articulable facts which, taken together with the rational inferences from

those facts, reasonably warrant the intrusion. * * *.”

This Court further stated in Studley:

“The propriety of an investigative stop or detention must be viewed in light of the totality

of the surrounding facts and circumstances. State v. Bobo (1988),

.

These circumstances must be viewed through the eyes of a reasonable and prudent police

officer on the scene who must react to events as they unfold. * * * . While a series of

events may appear innocent when viewed separately, taken together, they can warrant

further investigation. * * * . For this reason, the court must take into consideration the

officer’s training and experience and understand how the situation would be viewed by

the officer on the street. * * * .” Studley, 2d Dist. Greene No. 2010 CA 81,

, quoting State v. Roberts, 2d Dist. Montgomery No. 21221,

.

{¶ 17} In this case, the trial court found that the continued detention of White after the

traffic stop was an illegal seizure because Hammermeister did not articulate sufficient facts

giving rise to a reasonable suspicion of criminal activity that would justify prolonging her

detention. We agree with his determination. Clearly, the continued detention of White was

unrelated to the traffic violation. The record indicates that Hammermeister observed the 10

following:

(1) White was leaning over the center console of her parked vehicle;

(2) When White sat up and Hammermeister drove by, White appeared panicked and

blurted out a common epithet;

(3) White walked into the adjacent woods for a brief period of time, returned to her

vehicle and drove away;

(4) During the traffic stop, White’s hands were shaking and her voice was trembling.

These observations all appear innocent when viewed separately, and together do not give rise to

reasonable and articulable suspicion of specific criminal activity. As the trial court found, the

officer was acting on a “hunch.”

{¶ 18} White correctly argues that Hammermeister did not have a reasonable

suspicion of criminal activity to justify her continued detention, and she supports this argument

with three similar cases, Robinette, Retherford, and Ferrante. In Robinette, the detaining officer

lacked articulable facts or individualized suspicion of criminal activity. Id. at 241. The

Supreme Court of Ohio held that the officer “was justified in briefly detaining Robinette in order

to ask him whether he was carrying any illegal drugs or weapons.” Id. However, it found that

the officer “did not have any reasonably articulable facts or individualized suspicion to justify

Robinette’s further detention in order to ask to search his car. ” Id.

{¶ 19} In Retherford, the detaining officer based his suspicion of criminal activity on

the fact that a motorist had luggage in the back seat, was mildly nervous, and was traveling out

of town. Id. at 591-592. “[W]hen asked why he felt the need to ask [the motorist] for her

consent to search her vehicle, [the officer] replied, ‘[m]ore so for any other reason the fact that I

need the practice, to be quite honest.’ ” Id. at 592. In White’s case, likewise, there were 11

minimal articulable facts, and the need for practice is as inadequate as a non-specific hunch. In

fact, Hammermeister acknowledged that the tail light warning gave him a basis to stop the

vehicle “and dispel my suspicions of what I saw inside the vehicle.” All that he saw within the

vehicle was White initially hunched over on a console and a nervous reaction upon making the

stop.

{¶ 20} In Ferrante, the detaining officer claimed that he asked to search the motorist's

vehicle based on a prior drug offense, her nervous appearance, the fact that she was from out of

town, and her presence in a high-crime area. Id. at ¶ 22. This Court found that the "totality of

the facts and circumstances [were] not sufficient as a matter of law to give rise to a reasonable

suspicion that defendant had been engaged in some specific criminal misconduct, such as drug

activity." Id. at ¶ 28. Likewise here, Hammermeister apparently concluded that White’s

conduct in the park was “somehow suspicious,” as emphasized in the trial court’s decision, but

the officer did not articulate what, if any, criminal activity he believed was afoot. In Ferrante, ¶

26, this Court noted, “Acts that are essentially neutral or ambiguous do not become specifically

criminal in nature because they occur in a high crime area.” The same principle holds true in a

park in late afternoon. In fact, no evidence was introduced that the Wegerzyn Garden

MetroPark parking lot is a “high crime area.” In all instances absent a warrant, the facts must

demonstrate some specific criminal misconduct is afoot. Like the officers in Robinette,

Retherford and Ferrante, Hammermeister had very weak or negligible specific objective and

articulable facts to rely on when forming his suspicion of criminal activity. This case is

controlled by Robinette, Retherford and Ferrante.

{¶ 21} Under the totality of the circumstances, Hammermeister did not articulate

sufficient articulable facts giving rise to a suspicion of specific criminal activity which justified 12

his continued detention of White after the traffic stop. Hammermeister never mentioned that

White’s behavior was consistent with drug activity or any other crime. The State failed to elicit

any testimony from Hammermeister regarding inferences and deductions that he made based

upon his experience and specialized training other than “I think that there was maybe something

more going on there.” This was the State’s burden, which was not met. 3 Therefore, the

continued detention of White was unlawful.

{¶ 22} Regarding White’s consent, we find that because White’s post-traffic-stop

detention was unlawful, her consent is not presumptively valid. Therefore, the State has the

burden to prove that White’s consent was an independent act of free will and not a product of the

illegal detention. In State v. Bennett, 4th Dist. Ross No. 99 CA 2509,

(June

21, 2000), * 9-10, the Fourth District Court of Appeals made the following observations about

voluntary consent:

* * * As the court explained in Schneckloth,

,

,

:

[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

3 It is unpersuasive to characterize movement in a vehicle in a park at 4:45 p.m. as “furtive” when no police contact has been initiated. Sitting and walking around in the park is likewise innocuous behavior. 13

prosecution is not required to demonstrate such knowledge as a prerequisite to

establishing a voluntary consent.

***

Generally, courts should consider the following factors when determining

if a defendant voluntarily consented to a search: (1) the age of the accused; (2) the

accused's education and intelligence level; (3) the lack of any advice to the

accused of constitutional rights; (4) the length of questioning; and (5) the use of

physical punishment. Schneckloth,

,

,

. Moreover, “[i]n examining all the surrounding circumstances to determine if

in fact the consent to search was coerced, account must be taken of subtly

coercive police questions, as well as the possibly vulnerable subjective state of the

person who consents.”

,

,

.

* * * “While knowledge of the right to refuse consent is one factor to be

taken into account, the government need not establish such knowledge as the sine

qua non of an effective consent.”

,

,

. (Citations omitted.)

{¶ 23} In this case, the totality of the circumstances indicate that White’s consent was

not freely and voluntarily given. Hammermeister called for backup and the second officer,

Supinger, stood on one side of the vehicle and Hammermeister the other during the stop. After

the warning was issued, Supinger, who had returned to his cruiser, came back up to White’s

vehicle when he observed Hammermeister’s continuing conversation with White. Being

flanked by two officers certainly would lead a reasonable person to believe she was not free to

disregard the officer’s questions and pull off. Here, the transition between detention and 14

consensual exchange was so seamless that the untrained eye would not have noticed that it had

occurred. The undetectability of that transition was used by these two officers to compel White

into answering questions she need not answer, and consent to the search of her vehicle that she

was not legally obligated to permit. See generally Robinette, quoting State v. Robinette, 73 Ohio

St.3d at 654,

(1995).

{¶ 24} For the foregoing reasons, the totality of the circumstances establish that

White’s consent was not freely and voluntarily given, and the State’s sole assigned error is

overruled. The judgment of the trial court is affirmed.

.............

FAIN, P.J., concurs.

WELBAUM, J., dissenting:

{¶ 25} I very respectfully dissent. There are two issues. Determination as to the

validity of the post-traffic-stop detention affects the analysis of the consent issue.

I. THE POST-TRAFFIC-STOP DETENTION WAS LAWFUL DUE TO ARTICULABLE

FACTS GIVING RISE TO A SUSPICION OF SOME ILLEGAL ACTIVITY.

{¶ 26} The trial court and the majority have concluded that the facts found by the trial

court do not support reasonable, articulable suspicion of criminal activity sufficient to continue

the detention beyond the duration of the lawful traffic stop. I accept the factual findings, but

disagree with their legal conclusions.

{¶ 27} The Supreme Court of Ohio held:

When a police officer's objective justification to continue detention of a 15

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],

,

, paragraph one of the syllabus, modified.) State

v. Robinette,

,

(1997), paragraph one of the

syllabus (Robinette III).

{¶ 28} The Supreme Court of Ohio elaborated on the issue when it stated that:

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. * * *

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. * * * Robinette III at 241.

{¶ 29} The majority opinion articulates the pertinent law regarding how to evaluate

investigative detentions when it states that:

“ ‘The propriety of an investigative stop or detention must be viewed in light of

the totality of the surrounding facts and circumstances * * * [as] viewed through

the eyes of a reasonable and prudent police officer on the scene who must react to

events as they unfold * * * [and] [w]hile a series of events may appear innocent

when viewed separately, taken together, they can warrant further investigation. * * 16

* For this reason, the court must take into consideration the officer's training and

experience and understand how the situation would be viewed by the officer on

the street. (Citation omitted).’ ” Majority Opinion, ¶ 16.

{¶ 30} The majority opinion sets forth the facts Officer Hammermeister gave to justify

his actions. As noted in the syllabus of Robinette III, any articulable facts giving rise to a

suspicion of some illegal activity will justify a post-traffic stop detention. Although each of

White’s actions may appear innocent individually, when viewed together, it was reasonable for

Officer Hammermeister, as a trained police officer, to conclude that further investigation of

White was warranted. Officer Hammermeister is not required to articulate that White’s behavior

is inconsistent with any particular crime. Rather, he is required to express “reasonably

articulable facts giving rise to a suspicion of criminal activity * * *.” Robinette III,

,

. Officer Hammermeister’s factual basis for prolonging White’s

traffic stop was adequately articulated, and his suspicions of criminal activity were objectively

reasonable. The facts he articulated and corollary objective level of suspicion are more

persuasive than those found in the cases relied upon by the majority. I believe his actions were

lawful under Fourth Amendment standards.

II. THE POST-TRAFFIC-STOP DETENTION WAS REASONABLE.

{¶ 31} Secondly, when applying Fourth Amendment reasonableness standards in this

case, several factors are noteworthy for purposes of balancing the liberty and societal interests.

First, White was already lawfully detained due to the traffic stop. The sole issue is whether

White’s continued detention for the short time it took to ask her consent to search was reasonable

under these facts. 17

{¶ 32} In the absence of any reasonably articulable facts justifying a post-traffic-stop

detention, the Ohio Supreme Court stated that:

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.

, citing Florida v. Royer,

,

,

(1983), and Brown v. Texas,

,

,

(1979).

{¶ 33} This language authorized Officer Hammermeister to extend any traffic stop

detention to ask a motorist “[W]hether he was carrying any illegal drugs or weapons.” There is

little, if any, Fourth Amendment intrusion or societal benefit when an officer also asks for

consent to search.

{¶ 34} Officer Hammermeister’s request for consent was similar in duration and effect

to the boilerplate question authorized by Robinette III. Moreover, his request for White’s

consent to search was supported by reasonably articulable facts giving rise to his suspicion of

some criminal activity as required by Robinette III. I find that Officer Hammermeister’s actions

were reasonable under the Fourth Amendment and very respectfully dissent.

III. THE CONSENT WAS VALID.

{¶ 35} Because White’s post-traffic-stop detention was lawful, her consent is not

presumptively invalid. Therefore, the State does not have the burden to prove that White’s 18

consent was an independent act of free will and was not the product of the illegal detention. The

State must only prove that the totality of the circumstances demonstrate that White voluntarily

consented to the search.

{¶ 36} As the court explained in Schneckloth [v. Bustamonte,

,

,

(1973)]:

[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. (Footnote omitted.)

Generally, courts should consider the following factors when determining

if a defendant voluntarily consented to a search: (1) the age of the accused; (2) the

accused's education and intelligence level; (3) the lack of any advice to the

accused of constitutional rights; (4) the length of questioning; and (5) the use of

physical punishment. Schneckloth,

,

,

. Moreover, “[i]n examining all the surrounding circumstances to determine

if in fact the consent to search was coerced, account must be taken of subtly

coercive police questions, as well as the possibly vulnerable subjective state of the

person who consents.”

,

,

. State

v. Bennett, 4th Dist. Ross No. 99 CA 2509,

, *9 (June 21, 2000). 19

{¶ 37} Furthermore, “ ‘[w]hile knowledge of the right to refuse consent is one factor to

be taken into account, the government need not establish such knowledge as the sine qua non of

an effective consent.’ ” Bennett at *9-10, quoting

.

{¶ 38} In this case, the totality of the circumstances indicate that White’s consent was

freely and voluntarily given. There is nothing in the record establishing that White’s age or

intelligence level prevented her from understanding the nature of the detention or Officer

Hammermeister’s questions. The record indicates that White was cooperative, honest, sober,

coherent, and communicative. Additionally, after Officer Hammermeister issued White a

warning for the tail light violation, he told her that she was free to leave.

{¶ 39} The duration of the officer’s questioning after the traffic stop was also brief, and

there is no evidence of coercion. The officer requested permission to ask White another

question, and she consented. The officer then recounted his observations of her prior to the

traffic stop, and asked if she had anything illegal in her vehicle. She answered, “Not to my

knowledge,” and the officer followed up by asking for consent to search her vehicle. The

officer’s line of questioning was brief and straightforward, and the questions were not delivered

in a forceful manner. Furthermore, the officer fully informed White of the underlying reasons

for his request to search her vehicle when he shared his earlier observations of her. For the

foregoing reasons, in my view, the totality of the circumstances establish that White’s consent

was freely and voluntarily given.

{¶ 40} I very respectfully dissent.

............. 20

Copies mailed to:

R. Lynn Nothstine Victor A. Hodge Hon. Steven K. Dankof