At the beginning of this year, we reported that the United States Supreme Court had overruled Ohio's restrictive rule on consent searches; in Ohio v. Robinette, the highest court held that is not necessary for a police officer to tell a driver that he or she is free to leave before requesting consent to search a vehicle during a traffic stop. (See Crime and Punishment, January, 1997). Ohio prosecutors applauded this decision, but we realized that the case would be returned to the Ohio Supreme Court for further consideration, and we suspected that the state court would create a rule which complied with the high court's decision but which was still restrictive. It appears that we were right.
In State v. Robinette (November 12, 1997), the Ohio Supreme Court announced its most recent decision. The new ruling does not require police officers to say "you are free to go" before requesting consent to search; however, it does require officers to "clearly demonstrate" that, considering all the circumstances, "a reasonable person would believe that he or she had the freedom to refuse to answer further questions and could in fact leave." Is this new standard any better than the old one?
Ohio's newest rule presents us with two simple but disturbing conclusions:
In our previous article, we hinted that the Ohio Supreme Court might keep the "magic words" requirement by claiming that it was required by the Ohio Constitution, even though such words are not required by the United States Constitution. The court denies that it has done that, but its final decision seems to reach the same conclusion. In a footnote to the court's opinion, it admits that telling the driver "you are free to go" is still the best way to meet the new requirement:
"While we are not mandating any bright-line test or magic words, when a police officer informs a detainee that he or she does not have to answer further questions and is free to leave, that action would weigh persuasively in favor of the voluntariness of the consent to search."
So what is an officer to do? A recent newspaper report indicated that the Ohio State Highway Patrol will instruct its troopers to tell motorists that they are free to go before requesting consent to search ... just to be safe. It is difficult to tell what policy other police agencies may adopt. However, from a prosecutor's viewpoint, the safest path is the best one. Unless the facts and circumstances of the traffic stop clearly demonstrate that the driver understood that he or she was free to leave, there is only one option: Say the magic words!