[Cite as State v. Weisgarber, 2017-Ohio-8764.]




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

 STATE OF OHIO                                        :
                                                      :
         Plaintiff-Appellant                          :   C.A. CASE NO. 27525
                                                      :
 v.                                                   :   T.C. NO. 16-CRB-8507
                                                      :
 ROBERT D. WEISGARBER                                 :   (Criminal Appeal from
                                                      :    Municipal Court)
         Defendant-Appellee                           :
                                                      :

                                                 ...........

                                                 OPINION

                           Rendered on the 1st day of December, 2017.

                                                 ...........

JOSHUA T. SHAW, Atty. Reg. No. 0087456, Assistant City Prosecutor, 335 W. Third
Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellant

JENNIFER CUNNINGHAM-MINNICK, Atty. Reg. No. 0088010, Assistant Public
Defender, 117 S. Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellee

                                             .............
                                                                                       -2-


FROELICH, J.

       {¶ 1} Pursuant to R.C. 2945.67 and Crim.R. 12(K), the State of Ohio appeals the

decision of the Dayton Municipal Court granting Robert D. Weisgarber’s motion to

suppress evidence. For the following reasons, the trial court’s judgment will be affirmed.

                           I. Facts and Procedural History

       {¶ 2} Officer Jordan West, a police officer with the Grandview Medical Center

Police Department, was the sole witness at the suppression hearing. He testified as

follows.

       {¶ 3} Officer West has been employed by the Grandview Medical Center Police

Department for 3½ years, and several times per shift, he comes into contact with

individuals suspected of overdosing on drugs. He indicated that it was a “general policy”

for the hospital police to be called for every drug overdose patient. West indicated that

there were safety concerns related to the staff’s coming into contact with the drugs

themselves, needles, and paraphernalia, and to the possibility that patients could self-

administer drugs in the hospital. West received training about indicia of a person’s being

under the influence of drugs, but he had not been trained on Narcan.

       {¶ 4} At approximately 10:18 p.m. on December 8, 2016, an emergency room

nurse notified West that Weisgarber had been brought by his family to the hospital for a

drug overdose. The nurse told West that Weisgarber had received and was responding

to Narcan, which can reverse “an opiate overdose.” West testified that he was contacted

solely due to the fact that Weisgarber had overdosed; there was no report that Weisgarber

was being disorderly, threatening, or violent. We infer that the officer was wearing a

hospital police uniform, and he testified that he carried a Tazer, handgun, baton, and
                                                                                       -3-


handcuffs.

       {¶ 5} Officer West went to Weisgarber’s hospital room, leaving the door open.

West described the room as a square (approximately 12 by 12 or 15 by 15 feet) “individual

emergency room” with a door. The room was furnished with a bed with railings, a chair,

cabinets, a sink, a nurse’s station, and medical equipment mounted on the wall; there

was no bathroom or windows. The hospital bed was located in the middle of the room

with the head pushed up against the wall. When West entered the room, Weisgarber

was lying fully clothed on top of the hospital bed, Weisgarber’s parents were standing

beside the bed, and a nurse was at the computer; West did not recall if additional medical

personnel were present. West did not observe any medical equipment connected to

Weisgarber.

       {¶ 6} Officer West approached Weisgarber and asked him “the standard question

we ask people, if he was in possession of any drugs or weapons.”              Weisgarber

responded, “No.” West then asked Weisgarber for consent to search him. Weisgarber

said, “Okay.” The officer searched Weisgarber while Weisgarber laid on the hospital

bed. Upon searching Weisgarber, Officer West located a digital scale (the size of a deck

of cards) in a pocket along the leg of Weisgarber’s “carpenter-type” pants. West told

Weisgarber that he would be presenting the evidence to the Prosecutor’s Office and that

Weisgarber may be receiving a summons. West did not otherwise communicate with

Weisgarber. West testified, “I was trying to be in and out as quickly as possible to not

interrupt his care, obviously.”

       {¶ 7} Officer West testified that Weisgarber appeared “slightly intoxicated,” but

seemed “pretty coherent.” West stated that Weisgarber did not seem to have difficulty
                                                                                         -4-


understanding him, and West had no difficulty understanding Weisgarber. When asked

if he had asked Weisgarber any questions to see if Weisgarber was understanding him,

West responded, “* * * He looked conscious.         He was looking at me.      He seemed

coherent so, no, I did not.”     West did not know how long prior to the encounter

Weisgarber had received Narcan.

       {¶ 8} Officer West testified that, during his encounter with Weisgarber, he did not

have his hands near any of the weapons he carries (Tazer, handgun, baton), nor did he

handcuff or otherwise restrain Weisgarber.

       {¶ 9} On December 22, 2016, Weisgarber was charged by complaint with

possession of drug paraphernalia, a fourth-degree misdemeanor.                 Weisgarber

subsequently moved to suppress all evidence obtained from him and any statements he

made. He asserted that he had been seized and searched on December 8 without

probable cause or a reasonable suspicion of criminal activity, “knowledgeable” consent,

or exigent circumstances. He further argued that any statements he made were not

voluntary and were made without counsel and an explanation of his Miranda rights.

       {¶ 10} On March 20, 2017, the court held a hearing on the motion, during which

Officer West testified. At the conclusion of the hearing, the State argued that Officer

West had a consensual encounter with Weisgarber at the hospital and that Weisgarber

voluntarily consented to the search of his person.         Defense counsel argued that

Weisgarber had been “seized” in his hospital room and that the officer had no reasonable,

articulable suspicion of criminal activity by Weisgarber. Defense counsel further argued

that the State failed to establish that Weisgarber was in a condition to lawfully consent to

the search. Counsel noted that the nurse was not called to testify about the medical
                                                                                           -5-


treatment Weisgarber received and how he had responded.

       {¶ 11} On March 24, 2017, the trial court sustained Weisgarber’s motion to

suppress.    The court first concluded that Officer West did not have a consensual

encounter with Weisgarber. The court noted that West approached Weisgarber based

on a policy that the police be called for all drug overdose patients, and that West’s first

statement to Weisgarber was did he (Weisgarber) have any drugs or weapons; West had

no knowledge of Weisgarber and the situation other than that Weisgarber was being

treated for an overdose. The court thus concluded that Fourth Amendment protections

applied, and West lacked a reasonable, articulable suspicion or probable cause to believe

that Weisgarber was engaged in criminal activity.

       {¶ 12} The trial court further found that Weisgarber did not voluntarily consent to

the search. The court noted that the State had the burden of establishing consent, and

that a “showing that he merely submitted to an assertion of lawful authority is insufficient

to prove consent.” The court addressed the circumstances before it, stating: “In the

instant case, Officer West entered Defendant’s treatment room with no explanation as to

why he was there. He showed police authority over the situation by asking about drugs

and weapons and a search. There was no communication to Defendant that he was free

to refuse consent, or that he would not be detained if he refused[.]           [U]nder these

conditions his consent was not voluntary.”

       {¶ 13} The State appeals from the trial court’s decision.

              II. Motion to Suppress: Nature of Encounter and Consent

       {¶ 14} 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
                                                                                       -6-

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. “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.” Id.

       {¶ 15} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution guarantee the right to be free from unreasonable

searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);

State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). The law recognizes three

types of police-citizen interactions: 1) a consensual encounter, 2) a brief investigatory

stop or detention, and 3) an arrest. State v. Millerton, 2015-Ohio-34, 26 N.E.3d 317, ¶

20 (2d Dist.).

       {¶ 16} Consensual encounters occur when the police merely approach a person

in a public place and engage the person in conversation, and the person remains free not

to answer and to walk away. State v. Lewis, 2d Dist. Montgomery No. 22726, 2009-

Ohio-158, ¶ 21, citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870,

64 L.Ed.2d 497 (1980).      Consensual encounters are not seizures, and the Fourth

Amendment guarantees are not implicated in such an encounter. State v. Taylor, 106

Ohio App.3d 741, 747-749, 667 N.E.2d 60 (2d Dist.1995), citing Mendenhall at 554.

       {¶ 17} Under Terry, police officers may briefly stop and/or temporarily detain

individuals in order to investigate possible criminal activity if the officers have a
                                                                                         -7-

reasonable, articulable suspicion that criminal activity may be afoot. State v. Swift, 2d

Dist. Montgomery No. 27036, 2016-Ohio-8191, ¶ 10. “An individual is subject to an

investigatory detention when, in view of all the circumstances surrounding the incident,

by means of physical force or show of authority, a reasonable person would have believed

that he was not free to leave or [was] compelled to respond to questions.” Lewis at ¶ 22,

citing Mendenhall at 553, and Terry at 19. Fourth Amendment protections are implicated

in an investigatory detention, i.e., a Terry stop.

       {¶ 18} In determining whether an individual engaged in a consensual encounter or

was subject to an investigatory detention, the focus is on the police officer’s conduct, not

the subjective state of mind of the person stopped. State v. Ramey, 2d Dist. Montgomery

No. 26705, 2016-Ohio-607, ¶ 25. As we stated in State v. Ward, 2017-Ohio-1391, __

N.E.3d __, ¶ 26 (2d Dist.):

       “A consensual encounter remains consensual even if police officers ask

       questions, ask to see the person’s identification, or ask to search the

       person’s belongings, provided ‘the police do not convey a message that

       compliance with their requests is required.’ ” [State v.] Westover, 2014-

       Ohio-1959, 10 N.E.3d 211, at ¶ 15 [(10th Dist.)], quoting [Florida v.] Bostick,

       [501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)]. In this

       regard, “the crucial test is whether, taking into account all of the

       circumstances surrounding the encounter, the police conduct would ‘have

       communicated to a reasonable person that he was not at liberty to ignore

       the police presence and go about his business.’ ” Bostick at 437, 111 S.Ct.

       2382, quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975,
                                                                                        -8-


      100 L.Ed.2d 565 (1988).

      {¶ 19} Whether a particular police encounter with a citizen is an investigative stop,

as opposed to a consensual encounter, is fact-sensitive. Id. at ¶ 26; State v. Satterwhite,

2d Dist. Montgomery No. 15357, 1996 WL 156881, *3 (Apr. 5, 1996). “Factors that might

indicate a seizure include the threatening presence of several police officers, the display

of a weapon, some physical touching of the person, the use of language or tone of voice

indicating that compliance with the officer’s request might be required, approaching the

person in a nonpublic place, and blocking the citizen’s path.” State v. Cosby, 177 Ohio

App.3d 670, 2008-Ohio-3862, 895 N.E.2d 868, ¶ 13 (2d Dist.), citing Mendenhall.

      {¶ 20} The trial court concluded that Officer West’s encounter was not a

consensual encounter. The trial court emphasized that West approached Weisgarber in

an individual treatment room in the emergency department solely due to a report of

Weisgarber’s drug overdose, and the officer initiated the contact by asking whether

Weisgarber had “any drugs or weapons.” The trial court implicitly found that the location

of the encounter and the language used by the officer when he approached conveyed to

Weisgarber that a response was required.

      {¶ 21} Officer West’s testimony indicated that he was the only officer that

responded to Weisgarber’s room, that he did not have his hands near any of the weapons

he carries (Tazer, handgun, baton), and that he did not physically restrain Weisgarber.

Nevertheless, Officer West approached Weisgarber in a private room in the emergency

department, which was likely not generally accessible to the public at large, and

immediately asked Weisgarber if he had drugs or weapons. There is no evidence that

the officer introduced himself, asked Weisgarber if he was willing to answer questions, or
                                                                                         -9-


engaged in any conversation prior to asking about whether Weisgarber had drugs or

weapons. We defer to the trial court’s implicit factual finding that West’s use of language

and demeanor was a display of authority that indicated to Weisgarber that a response

was required. Considering the totality of the circumstances, the trial court did not err in

concluding that Weisgarber and Officer West were not engaged in a consensual

encounter.

       {¶ 22} At the conclusion of the suppression hearing, the trial court orally expressed

concern with the hospital’s policy that the hospital police respond to every drug overdose

patient. We agree with the trial court that the mere fact that a person arrives at an

emergency room for medical attention for a drug overdose does not, by itself, create a

reasonable, articulable suspicion of criminal activity. Here, Officer West testified that he

went to Weisgarber’s room solely due to his (Weisgarber’s) drug overdose.                We

understand the hospital’s concerns for the safety of its patients and staff, but under these

circumstances, West had no reasonable, articulable suspicion of criminal activity to justify

his investigatory detention of Weisgarber.

       {¶ 23} Even if Officer West and Weisgarber were involved in a consensual

encounter, we agree with the trial court that the State did not establish that Weisgarber’s

consent to the search of his person was voluntary.

              Consent is an exception to the warrant requirement that requires the

       State to “show by ‘clear and positive’ evidence that the consent was ‘freely

       and voluntarily’ given.” Specifically, “ ‘ “the State has the burden of proving

       that the necessary consent was obtained and that it was freely and

       voluntarily given, a burden that is not satisfied by showing a mere
                                                                                          -10-


      submission to a claim of lawful authority.” ’ ”

             “A ‘clear and positive’ standard is not significantly 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 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 doubt.”        “[T]he question 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

      all the circumstances.”

(Citations omitted.) State v. Ojezua, 2016-Ohio-2659, 50 N.E.3d 14, ¶ 17-18 (2d Dist.).

      {¶ 24} This court has considered six factors in determining the voluntariness of

consent: (1) whether the defendant’s custodial status was voluntary; (2) whether coercive

police procedures were used; (3) the extent and level of the defendant’s cooperation; (4)

the defendant’s awareness of his or her right to refuse consent; (5) the defendant’s

education and intelligence; and (6) the defendant’s belief that no incriminating evidence

would be found. State v. Terrell, 2d Dist. Clark No. 2016-CA-32, 2017-Ohio-7097, ¶ 82.

      {¶ 25} In this case, the record supports the trial court’s conclusion that the State

did not meet its burden of proof that Weisgarber voluntarily consented to be searched.

Weisgarber had been brought to the hospital due to a drug overdose, and he had received

Narcan, to which he responded, at the hospital. West did not know how long prior to the

encounter Weisgarber had received Narcan. Weisgarber was lying on the hospital bed

when West came into Weisgarber’s room in the emergency department.
                                                                                         -11-


       {¶ 26} The trial court determined that “Officer West observed that Defendant was

intoxicated,” but made no finding that Weisgarber was, nevertheless, “pretty coherent,”

as Officer West also testified. Weisgarber’s side of the conversation with the officer

consisted of two words: “No” in response to whether he had drugs or weapons, and

“Okay” in response to whether the officer could search him. The record supports the trial

court’s conclusion that the State did not meet its burden of proof that Weisgarber was in

a condition to give consent. The trial court also expressly found that the officer displayed

“police authority over the situation” and that Weisgarber was not informed of his right to

refuse consent. Considering the totality of the circumstances before us, the trial court

reasonably found that Weisgarber’s response (“okay”) to the officer’s request to search

did not constitute voluntary consent.

       {¶ 27} The State’s assignment of error is overruled.

                                        III. Conclusion

       {¶ 28} The trial court’s judgment will be affirmed.

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

DONOVAN, J., concurs.

TUCKER, J., dissenting:

       {¶ 29} There are two issues before us – first, whether the encounter between West

and Weisgarber violated the Fourth Amendment and second, whether Weisgarber

voluntarily consented to the search of his person. I would conclude, based upon the

record before us, that the encounter between West and Weisgarber was consensual but,

even if not, there was a reasonable, articulable suspicion that Weisgarber was engaged

in criminal conduct justifying a brief investigative detention. I also would conclude, again
                                                                                       -12-


based upon the record before us, that Weisgarber voluntarily consented to the search of

his person.



                           The Encounter Was Consensual

      {¶ 30} As stated by the majority, encounters between police and citizens fall into

three categories – consensual encounters, brief investigative stops, and seizures which

are equivalent to an arrest. State v. Taylor, 106 Ohio App.3d 741, 667 N.E.2d 60 (2d

Dist. 1995). There is no dispute that the encounter between West and Weisgarber was

not an arrest or its equivalent. Since a consensual encounter is not a seizure, the Fourth

Amendment is not implicated. This is so because placing Fourth Amendment restrictions

on police – citizen contacts that are not seizures would not advance “any interest secured

by the Fourth Amendment, [and] would impose wholly unrealistic restrictions upon a wide

variety of legitimate law enforcement practices.” United States v. Mendenhall, 446 U.S.

544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

      {¶ 31} The question in this case is what differentiates a consensual encounter from

an investigative seizure which, of course, triggers Fourth Amendment concerns.          A

person is “ ‘seized’ only when, by means of physical force or a show of authority, his

freedom of movement is restrained.” Id. at 553. This means that “[a]s long as the

person to whom questions are put remains free to disregard the questions and walk away,

there has been no intrusion upon that person’s liberty or privacy as would under the

Constitution require some particularized and objective justification.” Id. at 554. The

determination concerning whether a seizure has occurred involves an objective,

reasonable person analysis. Id.
                                                                                       -13-


      {¶ 32} Factors that are appropriately analyzed when differentiating between a

consensual encounter and a seizure include whether the citizen was confronted with the

“threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” Id., citing Terry v. Ohio, 392

U.S. 1, 19, n.16, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); Dunaway v. New York, 442 U.S.

200, 207, and n. 6, 99 S.Ct. 2248, 60 L.Ed. 2d 824 (1979); 3 W. LaFave, Search and

Seizure 53-55 (1978). The Mendenhall decision concluded that “[i]n the absence of

some such evidence, otherwise inoffensive contact between a member of the public and

the police cannot, as a matter of law, amount to a seizure of that person.” Mendenhall

at 555. (Emphasis added.)

      {¶ 33} I turn, with these thoughts in mind, to the pending case.         I start by

recognizing that most of the decisions discussing consensual encounters involve on the

street contact between a police officer and a citizen, leading to language that consensual

encounters occur in a public place and the citizen may walk away. This is noted because

the contact between West and Weisgarber occurred in a treatment room within a

hospital’s emergency room (ER) and Weisgarber, based upon his medical status, was

not, in the traditional sense, free to walk away. The majority opinion, this being said,

does not suggest, and I cannot discern, any reason why this changes the analysis

concerning whether the West – Weisgarber encounter was consensual.

      {¶ 34} I see no analytical distinction between an ER treating room open to hospital

personnel – including hospital police officers – and any other location where a police

officer has open, unrestricted access to a person.      I also see no logical distinction
                                                                                          -14-


between a citizen’s ability in an on the street encounter to ignore the police and walk away

and Weisgarber’s ability to ignore West’s questions and terminate any attempted

conversation. This conclusion is supported by Florida v. Bostick, 501 U.S. 429, 111 S.Ct.

2382, 115 L.Ed. 2d 389 (1991), wherein the court stated the rule used to determine

whether a seizure has occurred is whether, based upon the totality of circumstances, “the

police conduct would have communicated to a reasonable person that the person was

not free to decline the officer’s request or otherwise terminate the encounter.” Bostick at

439. The decision further states that this “rule applies to encounters that take place on

a city street or in an airport lobby, and it applies equally to encounters on a bus”[,] which

is where the police - Bostick encounter occurred. Id. at 439-440.

       {¶ 35} The analysis, accordingly, is whether West, by the display of a weapon,

physical touching, language or tone of voice, or in any other way indicated to Weisgarber

that he was not free to ignore West’s inquiry and terminate the encounter. The answer

to this question, based upon the totality of circumstances surrounding the incident, is that

West did not communicate to Weisgarber that he was not free to ignore West’s questions

and stop the encounter. West did not display a weapon or touch Weisgarber during the

less than one minute initial encounter between the two individuals. Further, there is

nothing in the record to suggest that West, by language (two questions), tone of voice, or

otherwise conveyed to a reasonable person in Weisgarber’s circumstance that he was

not free to ignore West’s questions and stop the encounter. I conclude, as such, that, as

a matter of law, the encounter between West and Weisgarber was consensual, and, thus,

did not implicate the Fourth Amendment.

       {¶ 36} The majority reaches the opposite conclusion by stating that the “trial court
                                                                                          -15-


implicitly found that the location of the encounter and the language used by the officer

when he approached conveyed to Weisgarber that a response was required.” I have

significant concern with the determination that the trial court, given its seizure

determination, must have reached factual conclusions consistent with this determination.

Further, there is, as discussed, nothing in the record to support the suggested implied

conclusions.

       {¶ 37} I would also conclude, assuming that the encounter between West and

Weisgarber was not consensual, that West, nonetheless, had a reasonable, articulable

suspicion that Weisgarber possessed contraband and drug paraphernalia.                 West,

therefore, could have initiated an investigative stop of Weisgarber without violating the

Fourth Amendment.



       There Was A Reasonable, Articulable Suspicion of Criminal Conduct

       {¶ 38} The United States Supreme Court has recognized that a police officer may

initiate an investigative stop of a citizen even though the officer does not have probable

cause that the citizen has committed or is about to commit a crime. Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). The Terry decision recognized that such

an investigative stop constitutes a seizure putting the Fourth Amendment into play with

the court concluding, after balancing the government’s interest in the detection of criminal

activity against a citizen’s liberty interest, that a brief investigative detention based upon

a reasonable, articulable suspicion that a citizen is engaged in criminal conduct does not

violate the Fourth Amendment.

       {¶ 39} A Terry stop must be evaluated based upon the “totality of the surrounding
                                                                                          -16-

circumstances.” State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), syllabus.

The circumstances surrounding the stop must be reviewed “through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.” State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). A court,

given this, “must take into consideration the officer’s experience and training and

understand how the situation would have been viewed by the officer on the street.” State

v. White, 2d Dist. Montgomery No. 18731, 2002 WL 63294, *2 (Jan. 18, 2002).

       {¶ 40} West, on the date of his contact with Weisgarber, had been a hospital police

officer for three plus years. West testified that during a typical shift he comes into contact

with multiple overdose victims.       West further testified that he was informed that

Weisgarber had responded to the administration of Narcan. This informed West that

Weisgarber’s overdose likely involved opiates because, as West testified, “[i]f someone

responds from Narcan it is normally opiates, that’s what [it] has an effect on.” Tr. 22.

West also testified that the hospital police department initiates contact with overdose

patients because “[w]e’ve had large amounts of narcotics on people that come in as

overdose patients. We’ve had nurses, officers being stuck with needles…” Tr. 33.

       {¶ 41} I would conclude, when viewing these circumstances through West’s eyes

understanding that he has to react to events as they unfold, that West, acting as a

reasonable, prudent officer, had a reasonable, articulable suspicion that Weisgarber

possessed an illegal opiate (heroin or fentanyl) or that he possessed needles or some

other drug paraphernalia.      West, as such, and assuming the encounter was not

consensual, had a Fourth Amendment justification to initiate a brief investigative

encounter with Weisgarber.
                                                                                        -17-


      {¶ 42} The next question, based upon my conclusion that the contact between

West and Weisgarber did not violate the Fourth Amendment, is whether Weisgarber

voluntarily consented to the search of his person which resulted in the discovery of the

digital scale at issue in this case. I would conclude, as discussed below, that Weisgarber

voluntarily consented to the search.



                        The Consent to Search Was Voluntary

      {¶ 43} The majority opinion evaluates the consent issue under the assumption that

the contact between West and Weisgarber was a consensual encounter. In such a

circumstance, the State’s burden is to establish by clear and positive evidence that the

citizen freely and voluntarily consented to the search. State v. Posey, 40 Ohio St.3d 420,

427, 534 N.E.2d 61 (1988), citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct.

1788, 20 L.Ed.2d 797 (1968). (Other citations omitted.)

      {¶ 44} The determination of whether consent is “in fact ‘voluntary’ or was the

product of duress or coercion, expressed or implied, is a question of fact to be determined

from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218,

227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The State’s “burden cannot be discharged

by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North

Carolina, 549-550.

      {¶ 45} Factors that Ohio courts often examine to evaluate the voluntariness of

consent include “(1) whether the defendant’s custodial status was voluntary; (2) whether

coercive police procedures were used; (3) the extent and level of the defendant’s

cooperation with the police; (4) the defendant’s awareness of his or her right to refuse
                                                                                         -18-


consent; (5) the defendant’s education and intelligence; [and] the defendant’s belief that

no incriminating evidence will be found.” (Citations omitted.) State v. Black, 2d Dist.

Montgomery No. 23524, 2010-Ohio-2916, ¶¶ 36-41; State v. Mabry, 2d Dist. Montgomery

No. 26242, 2015-Ohio-4513.

       {¶ 46} There is case law stating that when a trial court does not specifically

address these factors it is appropriate to remand the case to the trial court for such

evaluation. See, e.g., State v. Limoli, 10th Dist. Franklin No. 11AP-924, 2012-Ohio-

4502. We, in the absence of evaluation of the indicated factors, have concluded, based

upon the record, that a defendant’s consent to a search was a free and voluntary act.

State v. Mabry, supra; State v. Ward, 2017-Ohio-1391, __N.E.3d__ (2d Dist.) (Donovan,

J., dissenting.)

       {¶ 47} In State v. Ward, for example, we stated, in a situation where the trial court

did not make specific findings regarding the discussed factors, “there is no reason here

to remand, as the record indicates there were no coercive police procedures nor was

Ward placed in handcuffs or in custody in any way. As a result, Ward’s consent to the

search was voluntary.” State v. Ward, ¶ 45.

       {¶ 48} Similarly, in State v. Mabry we concluded, again in the absence of specific

trial court findings, that Mabry was cooperative, that he was not placed in custody,

handcuffs were not used, he was not placed into a cruiser, the consent occurred on a

public street, and no coercive police tactics were used. We, upon this record, concluded

that “the totality of the circumstances indicate that Mabry’s consent was voluntary. State

v. Mabry, ¶ 18.

       {¶ 49} I would conclude, even though the trial court did not make findings regarding
                                                                                         -19-


the indicated factors, that Weisgarber’s consent, under the totality of circumstances, was

a free and voluntary act. I would reach this conclusion because Weisgarber was not in

custody, he was cooperative during the less than one minute encounter, and no coercive

police tactics were employed.

       {¶ 50} The majority opinion, in reaching the opposite conclusion, states that “[t]he

record supports the trial court’s conclusion that the State did not meet its burden of proof

that Weisgarber was in a condition to give consent.” The trial court did not make such a

finding, and its consent decision is not based upon Weisgarber’s inability to give consent.

Further, West’s unrebutted testimony is that Weisgarber’s mental status did not prevent

a voluntary consent to the requested search.

       {¶ 51} The majority opinion also references the trial court’s conclusions that West

asserted police authority and that Weisgarber was not informed that he did not have to

give consent. The majority opinion, from this, concludes “[c]onsidering the totality of the

circumstances before us, the trial court reasonably found that Weisgarber’s response

(‘okay’) to the officer’s request to search did not constitute voluntary consent.” Any time

an officer interacts with a citizen and begins to ask questions there is a display of

authority, but such a display, without more, does not constitute a coercive police tactic

that can render a person’s consent involuntary. Our decision in State v. Wilt, 2d Dist.

Montgomery No. 19108, 2002 WL 272593 (Feb. 22, 2002), though focused upon whether

an encounter was consensual, is instructive on this issue. We stated that the “rule of

Mendenhall charges citizens with knowledge of their Fourth Amendment rights, leaving it

up to a citizen whether to invoke the right and walk from an officer who asks to speak with

him or her. To foreclose that right, more than a mere encounter with a uniformed officer
                                                                                        -20-

is required.” State v. Wilt, *4. Similarly, it takes something more than a uniformed

officer asking questions to create coercive police conduct that will render a consent to

search involuntary.

      {¶ 52} Finally, an officer is not obligated to inform a person of his right to refuse

consent, and a person’s knowledge of his right to decline a requested search, though a

factor to be considered, is not sufficient, without more, to render a person’s consent less

than voluntary.

       {¶ 53} I would conclude, on this record, that the encounter between West and

Weisgarber was consensual and that Weisgarber freely and voluntarily consented to the

search of his person. I, therefore, dissent.

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




Copies mailed to:

Joshua T. Shaw
Jennifer Cunningham-Minnick
Hon. Deirdre E. Logan

Case Name:            State of Ohio v. Robert D. Weisgarber
Case No.:             Montgomery App. No. 27525; T.C. No. 16-CRB-8507
Panel:                Donovan, Froelich, Tucker
Author:               Jeffrey E. Froelich
Summary:              State’s appeal from the granting of defendant’s motion to suppress.
                    The trial court did not err in concluding that the officer initiated an
                      investigatory detention, rather than a consensual encounter, at the
                      hospital, and that defendant did not voluntarily consent to be
                      searched. Judgment affirmed. (Tucker, J., dissenting.)
