State v. Riggins, 2004 Ohio 4247 (OH 8/13/2004)
| Decision Date | 13 August 2004 |
| Docket Number | Appeal No. C-030626. |
| Citation | 2004 Ohio 4247 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Gregory Riggins, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Michael K. Allen, Hamilton Count Prosecuting Attorney, and Phillip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
Richard D. Feil, III, for Defendant-Appellant.
{¶1} In a single assignment of error, defendant-appellant Gregory Riggins challenges the denial of his motion to suppress evidence obtained in a warrantless and what he claims was a nonconsensual search of his person. After the trial court overruled his motion to suppress, Riggins entered a plea of no contest and was found guilty of possession of cocaine, in violation of R.C. 2925.11(A), a felony of the fifth degree. The principal issue presented on appeal is whether an act or statement that fell short of an unequivocal expression of withdrawal of consent was sufficient to limit or to withdraw Riggins's consent to a search. We hold that it was not, and since the other grounds asserted by Riggins in his challenge to the trial court's denial of his motion to suppress are without merit, we affirm.
{¶2} In the early evening of March 15, 2003, two Cincinnati police officers, on routine patrol in a residential neighborhood, observed Riggins carrying an open bottle of beer on a public sidewalk. The officers stopped Riggins for the purpose of issuing a citation for a violation of R.C. 4301.62, the state's open-container law, which was punishable as a minor misdemeanor. Riggins provided identification and waited.
{¶3} While Officer McShane remained in the patrol car and prepared the citation, Officer Harper asked Riggins "if he had anything illegal on him." In his testimony at the suppression hearing, Officer Harper admitted that when he had asked the question, he had no reason to suspect that Riggins was engaged in any further criminal activity or presented any risk to the officers' safety. The officer conceded that the open-container violation was "the only thing [he] had," and that if Riggins had not consented to be searched, he would have had no authority to search him.
{¶4} Officer Harper testified that he asked for permission to search as a matter of routine: "I make it a habit of asking most people that I come in contact with, as a consent, as a consensual conversation, I ask if they have anything illegal on them." He admitted that his practice of requesting consent to search was not part of a Cincinnati Police Division policy.
{¶5} Officer Harper testified that, immediately after he had asked if Riggins had anything illegal on him, Riggins reached into his pocket and gave Harper a baggie filled with a small amount of marijuana. Officer Harper handed the baggie to Officer McShane for her to prepare another minor-misdemeanor citation for possession. Officer Harper testified that his experience in two years on the police force had taught him that a suspect did not quickly hand over contraband "unless maybe they have something else on them that they don't want me to find." Officer Harper then asked Riggins
{¶6} Officer Harper began a thorough search of Riggins, including patting down the outside of Riggins's clothing and reaching into his pockets. Officer Harper then asked Riggins to sit on the curb and to take off his shoes. Riggins began to comply and then asked, "Why do I have to take my shoes off?" Officer Harper responded, "[T]hat's how I do my searches, that if I search you then I look in your shoes, too." As Riggins proceeded to remove his left shoe, a white powdery substance and a small baggie fell out of the shoe. Riggins attempted to rub the powder into the ground. He threw the baggie containing the remainder of the powder into a neighboring yard. The officer recovered three-tenths of a gram of the powder, which was ultimately determined to be cocaine. The officer then arrested Riggins for possession of cocaine.
{¶7} Riggins's testimony contradicted the officers' testimony at almost every turn. He denied possessing the beer bottle and claimed only to have been collecting litter to place in a trash can. He denied that Officer Harper had ever asked him whether he had any contraband or whether he would consent to a search. Riggins testified that Officer Harper had conducted four searches of his person without asking for consent. Riggins did, however, agree with Officers Harper's and McShane's testimony that, before he had complied with their request, he had asked why he had had to remove his shoes.
{¶8} In argument before the trial court, the defense admitted the legitimacy of Riggins's initial detention for the investigation of the open-container violation. In response to the parties' closing arguments, the trial court indicated that it was focusing its inquiry on whether Riggins had consented to the scope of the search Officer Harper had conducted and whether Riggins had withdrawn that consent. By separate entry, without explanation, the trial court concluded that the search uncovering the cocaine was not illegal and overruled Riggins's motion to suppress.
{¶9} The trial court found Riggins guilty of possession, sentenced him to seven month's incarceration, less time served, and stayed the execution of sentence pending this appeal. Riggins has not challenged either the open-container or the marijuana-possession citations in this appeal. The record does not reflect that Riggins was convicted of either offense, though the citations were included in the evidence adduced at the suppression hearing.
{¶10} Riggins largely concedes that he was lawfully detained for the investigation of the open-container violation. The officers saw Riggins holding a bottle, and Riggins admitted picking up the bottle. A violation of the open-container statute, R.C. 4301.62, is punishable as a minor misdemeanor. While the protections of the Ohio and the federal constitutions against warrantless and unreasonable seizures and searches are generally coextensive, see State v. Robinette, 80 Ohio St.3d 234, 245, 1997-Ohio-343, 685 N.E.2d 762, in State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d, syllabus, the Ohio Supreme Court held that the Ohio Constitution provides a greater protection than the Fourth Amendment "against warrantless arrests for minor misdemeanors." Police officers may briefly detain, but may not conduct a custodial arrest, or a search incident to that arrest, for a minor-misdemeanor offense when none of the R.C. 2935.26 exceptions apply. See State v. Brown, at ¶25. Under the facts of the initial stop, a search of Riggins's person was not permissible because none of the statutory exceptions applied. Moreover, the officers did not have a reasonable, articulable suspicion that criminal wrongdoing was afoot to justify a limited investigative search for weapons or contraband. See Terry v. Ohio (1968), 392 U.S. 1, 19-20, 88 S.Ct. 1868.
{¶11} But police officers do not need a warrant, probable cause, or even a reasonable, articulable suspicion to conduct a search when a suspect voluntarily consents to the search. See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 93 S.Ct. 2041; State v. Comen (1990), 50 Ohio St.3d 206, 211, 553 N.E.2d 640. Consent to a search is "a decision by a citizen not to assert Fourth Amendment rights." Katz, Ohio Arrest, Search and Seizure (2004 Ed.), 341, Section 17:1. In Schneckloth v. Bustamonte, the United States Supreme Court acknowledged the importance of consent searches in police investigations, noting that "a valid consent may be the only means of obtaining important and reliable evidence" to apprehend a criminal. Schneckloth v. Bustamonte, 412 U.S. at 227-228, 93 S.Ct. 2041. The Supreme Court has recently reaffirmed the principle that "[p]olice officers act in full accord with the law when they ask citizens for consent." United States v. Drayton (2002), 536 U.S. 194, 207, 122 S.Ct. 2105.
{¶12} Other courts, taking notice of the widespread use of consent searches by police, have acknowledged the risk to our liberties when substantial numbers of citizens, particularly motorists, guilty of no greater offense than a minor misdemeanor, are asked by law enforcement officials for consent to search. See State v. Robinette, 73 Ohio St.3d 650, 654, 1995-Ohio-162, 653 N.E.2d 695, reversed in Ohio v. Robinette (1996), 519 U.S. 33, 117 S.Ct. 417; State v. Carty (2002), 170 N.J. 632, 641, 790 A.2d 903 ().
{¶13} Here, Riggins contends (1) that he did not consent to the search, (2) that any consent that he did give was involuntary, and (3) that if he did consent, he limited or withdrew that consent prior to the discovery of the cocaine in his shoe.
{¶14} To establish the consent exception to the probable-cause and warrant requirements of the federal and Ohio constitutions, the state has the burden of establishing by "clear and positive" evidence that consent was freely and voluntarily given. Bumper v. North Carolina (1968), 391 U.S. 543, 548, 88 S.Ct. 1788; State v. Posey (1988), 40 Ohio St.3d 420, 427, 534 N.E.2d 61. Whether a consent to search was voluntary or was the product of duress or coercion, either express or implied, is ordinarily a question of fact to be determined from the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. at 219 and 248-249, 93 S.Ct. 2041; State v. Chapman (1994), 97 Ohio App.3d...
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