Recent Court Decisions: Ohio v. Robinette

Traffic Detainee Need Not Be Advised That Traffic Stop is Over Before Police Officer Requests Consent to Search; Court Adopts Rationale Urged in Amicus Curiae Brief Filed by LELP Publisher.

Ohio v. Robinette, 117 S.Ct. 417, 60 CrL 2001, No. 95-891 (1996).

A police officer stopped defendant for speeding, gave him a verbal warning, and returned his driver's license. He then asked defendant whether he was carrying illegal contraband, weapons, or drugs in his car. Defendant said "no" and consented to a search of the car. The search turned up a small amount of marijuana and a pill. Defendant was then charged with possession of a controlled substance.

The Supreme Court of Ohio, 653 N.E.2d 695 (1995), ruled that the right guaranteed by the federal and state (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 as to when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation looking to a consent search. In order to put the citizen on notice that the valid detention has ended and a period of consensual encounter has begun, the Ohio court said a bright line rule is necessary to the effect that any attempt at a consensual interrogation looking towards a consent to search must be preceded by the statement of the officer to the citizen, "At this time you legally are free to go," or by words to that effect.

An 8-1 decision of the Court, in an opinion written by the Chief Justice, took the position that the Fourth Amendment does not require that a lawfully seized defendant be advised that he is "free to go" before his consent to search will be recognized as voluntary. Reasonableness, the Court said, is the touchstone of the Fourth Amendment, and reasonableness is measured in objective terms by examining the totality of the circumstances. The Court noted that it had previously held that the voluntariness of a consent to search is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). It would be unrealistic, the Court said, to require the police to always inform detainees that they are free to go before a consent to search may be deemed voluntary.

The Court stated:

"We have long held that the touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500 U.S. 248, 250 (1991). Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.

"In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry. Thus, in Florida v. Royer, 460 U.S. 491 (1983), we expressly disavowed any 'litmus paper test' or single 'sentence or . . . paragraph . . . rule,' in recognition of the 'endless variations in the facts and circumstances' implicating the Fourth Amendment. Id., at 506. Then, in Michigan v. Chesternut, 486 U.S. 567 (1988), when both parties urged 'bright line rule[s] applicable to all investigatory pursuits,' we rejected both proposed rules as contrary to our 'traditional contextual approach.' Id., at 572-573. And again, in Florida v. Bostick, 501 U.S. 429 (1991), when the Florida Supreme Court adopted a per se rule that questioning aboard a bus always constitutes a seizure, we reversed, reiterating that the proper inquiry necessitates a consideration of 'all the circumstances surrounding the encounter.' Id., at 439.

"We have previously rejected a per se rule very similar to that adopted by the Supreme Court of Ohio in determining the validity of a consent to search. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), it was argued that such a consent could not be valid unless the defendant knew that he had a right to refuse the request. We rejected this argument: '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.' Id., at 227. And just as it 'would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,' id., at 231, so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and '[v]oluntariness is a question of fact to be determined from all the circumstances,' id., at 248-249. The Supreme Court of Ohio having held otherwise, its judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion."

Justice Ginsburg concurred in the judgment in a separate opinion and Justice Stevens dissented. LELP publisher James P. Manak filed an amicus curiae (friend of the court) brief in this case on behalf of the State of Ohio and Americans for Effective Law Enforcement. The brief argued that although Fourth Amendment warnings in such cases might be a good police practice and policy, they are not constitutionally required. This is essentially the rule adopted by the Court in its decision.

Note: As with all the cases discussed on the web pages of LELP, do not assume the law on this subject is the same in your jurisdiction; check with your legal advisor to determine the law in your own jurisdiction and how it would apply in a particular case.

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