State v. Robinette

Francis E. Sweeney; Sr., J.,

dissenting. In State v. Robinette (1995), 73 Ohio St.3d 650, 653 N.E.2d 695, I rejected the majority’s “bright line” test, which required police officers to recite certain words before instituting a consensual interrogation. Instead, I stated that the correct test to be applied is the totality-of-the-circumstances test, which takes into consideration all of the circumstances surrounding the encounter. Id. at 655-658, 653 N.E.2d at 699-701 (F.E. Sweeney, J., dissenting). The United States Supreme Court also eschewed the bright-line test and stated that voluntariness is a question of fact to be determined from all the circumstances. Ohio v. Robinette (1996), 519 U.S.-,-, 117 S.Ct. 417, 421, 136 L.Ed.2d 347, 355. The Supreme Court reversed the judgment and remanded the cause to this court. Upon remand, the majority now applies the correct test (totality of the circumstances), but, in my opinion, still reaches the wrong result.

*250Based upon the testimony presented, it is clear that Robinette consented to the search of his vehicle. Robinette specifically stated that he thought he was free to leave at the time the police officer asked whether he could search the vehicle. Robinette conceded that the police officer was nice to him during the encounter and acted in a nonthreatening manner. Based upon these facts, I am unwilling to hold that Robinette “merely submitted to ‘a claim of lawful authority’ ” as the majority concludes. Instead, under the totality of the circumstances, I believe that there was no coercion and that Robinette voluntarily consented to the search of the vehicle.

Accordingly, I would reverse the judgment of the court of appeals and reinstate the trial court’s judgment.

Douglas, J., concurs in the foregoing dissenting opinion.