In a "decision and order" filed July 9, 1996, the trial court found that the traffic stop of the Impala driven by the defendant was a pretext for searching for drugs. The court then quoted paragraph one of the syllabus in State v. Robinette (1995),73 Ohio St.3d 650, 653 N.E.2d 695:
"When the motivation behind a police officer's continued detention of a person stopped for a traffic violation is not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure."
The court suppressed from the evidence the cocaine and heroin found during the search of the defendant's apartment and the defendant's statements made immediately after the seizure of the drugs because they "are all fruits of that stop."
The state appealed from the order and also moved the trial court to reconsider its "decision and order."
In a "decision and entry" filed September 5, 1996 the trial court modified its prior order. The court in effect held that the traffic stop was reasonable by Fourth Amendment standards, but that "the continued detention constitutes an illegal seizure."
The court then made the following statements:
"This Court finds that the continuing detention was unlawful and, therefore, any ensuing consent to search was invalid. From the moment Ms. Taylor was removed from the black Impala and placed in the cruiser, her detention was unlawful, and any consent she may have given is not clearly valid. In addition, the Court finds that Ms. Taylor was merely submitting to the apparent authority of the numerous police officers in the immediate area while she was being *Page 266 detained in the cruiser. Further, the Court finds that the State has not established that Ms. Taylor's waiver was voluntary and knowledgeable. The police also failed the `bright line' test as enunciated in Robinette."
On the last page of the "decision and entry" the trial court made six specific findings. The fourth and most significant finding provides:
"Any statements made by the defendant and the subsequent search of the residence are all fruits of that illegal, continued detention."
There was no specific finding made on the issue of whether Taylor's consent to search the apartment was voluntary.
There was also no specific finding that Taylor was merely submitting to the apparent authority of the numerous police officers while she was being detained in the cruiser or at any other time.
The state appealed from the "decision and entry." The two appeals were thereafter consolidated into the appeal presently before us.
The "bright line" test enunciated in Robinette is set forth in paragraph two of the syllabus:
"The right, guaranteed by the federal and Ohio Constitutions, to be secure in one's person and property requires that citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase `At this time you legally are free to go' or by words of similar import." Robinette, 73 Ohio St.3d 650, 653 N.E.2d 695.
A four-to-three majority in Robinette in effect adopted a rule that a valid consent to search and waiver of Fourth Amendment rights cannot be voluntary under Robinette facts absent the consenter's knowledge that he has the right to refuse consent.
In Ohio v. Robinette (1996), 519 U.S. 33, 117 S.Ct. 417,136 L.Ed.2d 347, the U.S. Supreme Court reviewed the Ohio Supreme Court case. Six justices concurred in the opinion written by Chief Justice Rehnquist. There was also a concurring opinion and a dissenting opinion.
The court rejected the "bright line" test and held that knowledge of the right to refuse consent to search is not a prerequisite to a finding that a consent was voluntary. The question of whether a consent to search was voluntary or was the product of duress or coercion is a question of fact to be determined from the totality of the circumstances. Knowledge of the right to refuse consent is one of the circumstances to be considered. Schneckloth v. Bustamonte (1973), 412 U.S. 218,93 S.Ct. 2041, 36 L.Ed.2d 854. *Page 267
Both Robinette and Schneckloth are first-party-consent cases involving consenters who were defendants.
In the case before us the defendant and his girlfriend, Loretta Taylor, reside together in the three-room one-bedroom apartment that was searched after Taylor consented to the search.
It is established law that a third party who possesses common authority over premises may voluntarily consent to a search of those premises and that such a search is reasonable. UnitedStates v. Matlock (1974), 415 U.S. 164, 94 S.Ct. 988,39 L.Ed.2d 242; State v. Greer (1988), 39 Ohio St.3d 236, 530 N.E.2d 382.
It is also established law that Fourth Amendment rights are personal rights that cannot be vicariously asserted. Rakas v.Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.
In view of the applicable law, it appears to me that the outcome of the motion to suppress hinges on the factual issue of whether Taylor's consent to search her apartment was voluntary. The state has the burden to show that the warrantless search of the apartment was reasonable, i.e., that the state had the voluntary consent of Taylor. Like other factual issues in dispute, the defendant has the due process right to present evidence that Taylor's consent was involuntary.
Dayton police officers Pence and Del Rio testified at the hearing on the motion to suppress evidence. The defendant's only witness was Loretta Taylor.
The state's witnesses testified as to the facts and actions which took place surrounding the seizure of the drugs as set forth in the majority opinion. There was also testimony that Taylor's consents to search her car and apartment were voluntary and were given with the knowledge that she had the right not to consent.
Taylor's testimony confirmed much of the state's evidence. Some of her testimony was circumstantial evidence relevant to showing that her consents to search were not voluntary; however, this testimony was of little probative value when compared to her direct testimony:
"Q. When you gave written permission to search your vehicle, did you feel that you were doing that freely and voluntarily?
"A. Yes.
"Q. And the police didn't threaten you or coerce you to get you to let them search that vehicle?
"A. No.
"Q. And the reason you let them search the vehicle?
"A. There was nothing in the car. *Page 268
"Q. Okay. To your knowledge, there was no reason not to let them search the vehicle.
"A. Right.
"MR. FALLANG: I have no further questions, your Honor.
"THE COURT: Cross-examination.
"Cross-Examination.
"BY MR. POHLMAN:
"Q. Ma'am, with respect to the house consent form, you did that freely and voluntarily, too, didn't you, Ms. Taylor? Right?
"A. Right.
"Q. You didn't have any concern there would be anything found there either, did you?
"A. Right.
"Q. You didn't believe there was any drugs there, did you?
"A. Right.
"Q. Okay. In fact, you would describe your actions with the police as you wanted to cooperate with them, didn't you?
"A. That's true.
"Q. And they asked you for there consents for the car and house, and you willingly went along and granted the consents; is that correct?
"A. Yes."
In my view the evidence would not support a finding that Taylor's consent to search her apartment was involuntary.
I would reverse the order of the trial court sustaining the defendant's motion to suppress evidence and remand for further proceedings. *Page 269