[Cite as State v. Moore, 2019-Ohio-648.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27973 : v. : Trial Court Case No. 2017-CR-2119 : ERIC L. MOORE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 22nd day of February, 2019.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Eric Moore was convicted of possession of cocaine, a fifth degree felony,
after entering a no-contest plea. Moore appeals that judgment of conviction, challenging
the trial court’s pre-plea denial of his motion to suppress evidence seized after a search
of his car. The judgment of the trial court will be affirmed.
Factual and Procedural Background
{¶ 2} Shortly before 1 a.m. on July 6, 2017, while working alone as a road patrol
officer in a residential area in Dayton, Officer William Overholtz of the Dayton Police
Department stopped Moore for driving with an unlit front headlight. Upon approaching
Moore’s vehicle and asking Moore for his driver’s license, Officer Overholtz saw that
Moore, who was alone in the car, was wearing a hospital mask that concealed his face
from the bridge of his nose to his mouth. Officer Overholtz asked Moore what was “up
with the mask,” to which Moore responded, “Nothing.”
{¶ 3} Given Moore’s lack of explanation, Officer Overholtz suspected that Moore
might be covering his face because he had just committed or was about to commit a
crime. Aware that the area was known for drug trafficking and a prevalence of guns, and
concerned that Moore might be carrying a weapon to facilitate a crime, Officer Overholtz
asked Moore to step out of the vehicle so that Overholtz could conduct a pat-down search
for weapons. Moore exited the car, but as Officer Overholtz began to pat down Moore’s
right pant leg, Moore “began reaching down towards his right pocket.” Officer Overholtz
said that Moore was agitated, “really nervous,” sweaty, and “shaking a little bit.” Officer
Overholtz instructed Moore “at least * * * twice” to put his hands up on the car, but when
Moore continued to fail to comply, the officer “wasn’t going to take any more chances.” -3-
Officer Overholtz handcuffed Moore before completing the pat down, which yielded only
a wadded-up paper towel in Moore’s pocket. Officer Overholtz then placed Moore in the
back of Overholtz’s cruiser “for officer safety reasons,” while awaiting backup assistance.
Moore was upset, but Officer Overholtz told him that he was not under arrest at that time.
{¶ 4} With Moore secured in the cruiser’s back seat and Officer Overholtz in the
front, entering information into a computer, Overholtz asked Moore whether “there was
anything in [Moore’s] car I needed to know about.” Moore said no. The officer then asked
Moore “if he minded if I check [the car] and [Moore] said absolutely, go ahead and check
it.” Moore twice explicitly told Officer Overholtz that the officer could check inside Moore’s
car.
{¶ 5} Upon searching the car, Officer Overholtz found “a waxy-looking substance”
inside the pocket of the driver’s side door. Based on his experience, Overholtz believed
the substance to be crack cocaine. Officer Overholtz returned to his cruiser and informed
Moore of his Miranda rights. Officer Overholtz then told Moore what he had found in
Moore’s car. The officer testified that “Moore knew it. He admitted to it. He said he had a
drug problem and he needed help.” Moore was placed under arrest.
{¶ 6} On July 28, 2017, a Montgomery County grand jury indicted Moore on one
fifth-degree felony count of possession of cocaine in violation of R.C. 2925.11(A). Moore
entered a plea of not guilty. He thereafter moved to suppress both the evidence seized
and any statements he made as a consequence of being stopped, searched, and
arrested. Moore argued that the initial traffic stop was unwarranted, that his detention
exceeded the scope of the initial stop, that no reasonable basis existed for the pat-down
search of his person, that he did not voluntarily consent to the warrantless search of his -4-
vehicle, and that his statements were “fruits of the poisonous tree.”
{¶ 7} At a suppression hearing held on October 20, 2017, Officer Overholtz was
the only witness, and he testified to the facts outlined above. However, due to a technical
issue, the hearing was continued to December 4, 2017, when the State presented a
recording from Officer Overholtz’s cruiser camera taken during the stop that led to
Moore’s arrest. (Jt. Exh. I). That recording revealed that after being handcuffed, before
being placed into Overholtz’s cruiser, and before being given Miranda warnings, Moore
stated, “I want my lawyer.” Officer Overholtz testified that he did not hear that request
when Moore made it, but confirmed that Moore’s statement to that effect was audible on
the cruiser camera recording.
{¶ 8} On January 23, 2018, the trial court granted in part and denied in part Moore’s
motion to suppress. (Doc. #28). The trial court held that any statements Moore made after
he invoked his right to counsel should be suppressed. However, the court determined
that the cocaine seized from Moore’s car was admissible evidence, as Officer Overholtz
lawfully stopped Moore for a traffic violation, the officer had “a reasonable and articulable
suspicion that Moore might be armed and dangerous” because his mask suggested that
he might be engaged in criminal activity, and Moore voluntarily consented to the search
of his car.
{¶ 9} On February 22, 2018, Moore entered a plea of no contest to possession of
cocaine, a fifth-degree felony. On April 12, 2018, the trial court sentenced Moore to
community control sanctions for a period not to exceed five years.
{¶ 10} Moore appeals that judgment, setting forth these three assignments of error:
1) The officer did not have a reasonable, articulable suspicion to search the -5-
vehicle.
2) The Trial Court incorrectly ruled [Moore] consented to the search.
3) The Trial Court and this Appellate Court have improperly ruled [that] even
after a suspect has invoked his right to counsel, the police are not prohibited
from asking a suspect to consent to a search.
Standard of Review
{¶ 11} An appeal from a ruling on a motion to suppress presents a mixed question
of fact and law. State v. Ojezua, 2016-Ohio-2659, 50 N.E.3d 14, ¶ 15 (2d Dist.), citing
State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-1326, ¶ 13, and State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “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 the credibility of the witnesses.’ ”
State v. Curley, 2016-Ohio-7624, 73 N.E.3d 1050, ¶ 9 (2d Dist.), quoting State v.
Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). As a result, when
reviewing a suppression decision, this court “must accept the trial court’s findings of fact
if they are supported by competent, credible evidence.” Id., citing Retherford at 592. We
then “must independently determine as a matter of law, without deference to the trial
court’s conclusion,” whether the facts as found by the trial court meet the applicable legal
standard. Id., quoting Retherford. “The application of law to the trial court’s findings of fact
is subject to a de novo standard of review.” Ojezua at ¶ 15, quoting State v. Turner, 2015-
Ohio-4612, 48 N.E.3d 931, ¶ 10 (2d Dist.).
Assignment of Error #1 – Pat Down and Detention
{¶ 12} Although Moore’s first assignment of error is phrased as a challenge to the -6-
police officer’s search of Moore’s vehicle the substance of Moore’s arguments under that
heading focuses on the officer’s pat-down search and detention of Moore following the
traffic stop. (See Brief of Defendant-Appellant, p. 2-4). Because Moore’s second
assignment of error more aptly targets the circumstances surrounding the vehicle search
(see id., pp. 4-6), we will direct our analysis of Moore’s first assignment of error to the
issue of the lawfulness of his post-stop pat down and detention.1
{¶ 13} It is undisputed that Officer Overholtz lawfully stopped Moore for having an
inoperable headlight. See State v. Martina, 2d Dist. Montgomery No. 18905, 2001 WL
1658157, *3 (Dec. 28, 2001) (police officer has authority “to stop a vehicle he observes
driving at night with only one headlight.”). After stopping a motorist for a traffic violation,
a police officer may order the motorist to get out of his car, even without suspicion of
criminal activity. State v. Dozier, 187 Ohio App.3d 804, 2010-Ohio-2918, 933 N.E.2d
1160, ¶ 8 (2d Dist.), citing State v. Evans, 67 Ohio St.3d 405, 407, 618 N.E.2d 162 (1993)
and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
Additionally, “[d]uring a routine traffic stop, it is reasonable for an officer to search the
driver for weapons before placing the driver in a patrol car, if placing the driver in the
patrol car during the investigation prevents officers or the driver from being subjected to
a dangerous condition and placing the driver in the patrol car is the least intrusive means
to avoid the dangerous condition.” State v. Lozada, 92 Ohio St.3d 74, 748 N.E.2d 520
1 Notably, the State of Ohio’s brief also treats Moore’s first assignment of error as asserting “that [Officer Overholtz] exceeded the scope of the traffic stop to continue Moore’s detention and the pat down for weapons was unwarranted.” (Brief of Appellee, State of Ohio, p. 4). -7-
(2001), paragraph one of the syllabus.2
{¶ 14} Still, neither a Mimms order to exit the vehicle nor the act of placing the
motorist in a police cruiser automatically entitles an officer to pat the driver down for
weapons. Dozier at ¶ 8, citing Evans at 409. To determine whether a driver may be
subjected to a pat-down search for weapons, “we must consider whether, based on the
totality of the circumstances, the officer had a reasonable, objective basis to believe that
the motorist was armed and dangerous.” Id., citing Evans at 409 and State v. Andrews,
57 Ohio St.3d 86, 565 N.E.2d 1271 (1991). See also Terry v. Ohio, 392 U.S. 1, 29-30, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968) (where the sole justification for a warrantless search
is protection of a police officer and others nearby, the search “must * * * be confined in
scope to an intrusion reasonably designed to discover guns [or other weapons] * * *”; a
patdown search of outer surfaces of clothing meets that standard).
{¶ 15} “During the course of an investigatory stop and detention, law enforcement
officers may conduct a pat down search for weapons if the officers have reasonable
grounds to believe that the suspect is armed and dangerous.” State v. Keggan, 2d Dist.
Greene No. 2006 CA 9, 2006-Ohio-1813, ¶ 26. “The officer need not be absolutely certain
that the individual is armed; rather, the issue is whether a reasonably prudent man in
those circumstances would be warranted in the belief that his safety or the safety of others
was in danger.” State v. Grefer, 2d Dist. Montgomery No. 25501, 2014-Ohio-51, ¶ 24,
citing Andrews at 89.
{¶ 16} The trial court found that Officer Overholtz “was concerned for his safety”
2 The circumstances here differ from those in Lozada, where the defendant was placed in a police cruiser solely for the convenience of the officer and the evidence therefore was suppressed. See Lozada at 77. -8-
when he began a pat-down search of Moore’s person. (Doc. #28, p. 3). The trial court
cited specific portions of Officer Overholtz’s testimony during the suppression hearing,
including his knowledge that the area he was patrolling was a “drug highway” where
Dayton police had encountered significant quantities of drugs and guns; Moore’s wearing
a hospital mask that covered the lower half of his face and Overholtz’s familiarity with
individuals’ concealing their identity with masks when committing crimes, especially
robberies; and Moore’s reaching toward his pants pocket despite having been advised by
Overholtz to keep his hands on the car, an action that Overholtz testified “often means
the individual is armed or could be reaching for a weapon.” (Id.).
{¶ 17} Officer Overholtz identified a number of factors that would lead a reasonably
prudent person in his circumstances to believe “that his safety or the safety of others was
in danger.” See Grefer at ¶ 24. Because competent, credible evidence supports the trial
court’s findings of fact, we are bound to accept those findings. See Curley, 2016-Ohio-
7624, 73 N.E.3d 1050, at ¶ 9; Retherford, 93 Ohio App.3d at 592, 639 N.E.2d 498. The
facts as found by the trial court demonstrate that Officer Overholtz’s pat down of Moore
was lawful.
{¶ 18} We also must consider whether Moore’s continued detention following the
pat down violated his Fourth Amendment right to be free from unreasonable seizures.
The temporary detention of a person during a traffic stop, “even if only for a brief period
and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of the
Fourth Amendment.” State v. Mee, 2017-Ohio-7343, 96 N.E.2d 1020, ¶ 13 (2d Dist.),
quoting Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89
(1996). “A seizure justified only by a police-observed traffic violation * * * ‘become[s] -9-
unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’
of issuing a ticket for the violation.” Id., quoting Rodriguez v. United States, ___ U.S. ___,
135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015), quoting Illinois v. Caballes, 543 U.S. 405,
407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Therefore, “after the reasonable * * * time
for issuing [a] traffic citation has [elapsed], an officer must have a reasonable articulable
suspicion of illegal activity to continue the detention.” Id., quoting State v. Ramos, 155
Ohio App.3d 396, 2003-Ohio-6535, 801 N.E.2d 523, ¶ 13 (2d Dist.).
{¶ 19} “We determine the existence of reasonable suspicion by evaluating the
totality of the circumstances, considering those circumstances ‘through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold.” Id., quoting State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶
14, quoting Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271. Here, the trial court
credited Officer Overholtz’s testimony that he held Moore in the cruiser both to await the
assistance of another officer in completing the pat down and due to Overholtz’s suspicion
about Moore’s presence in a neighborhood known for drug activity, with his face
concealed and with no explanation for wearing a hospital mask. (Doc. #28, pp. 4-6). The
record contains competent, credible evidence that supports those findings. See Curley at
¶ 9; Retherford at 592.
{¶ 20} The recording from Overholtz’s cruiser camera confirms that fewer than 10
minutes passed from when Officer Overholtz initiated the traffic stop until he discovered
drugs while searching Moore’s car. (Jt. Exh. 1). Even if the length of a motorist’s detention
would be unreasonable for the sole purpose of issuing a traffic citation, a police officer is
justified in extending the stop if the circumstances give rise to a “reasonable and -10-
articulable suspicion” of criminal activity. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-
2204, 865 N.E.2d 1282. The trial court’s findings of fact support a conclusion that Officer
Overholtz had “a reasonable articulable suspicion of illegal activity” that warranted
Moore’s continued detention following the initial pat down. Given Overholtz’s reasonable
articulable suspicion, Moore’s relatively brief detention did not violate his constitutional
rights.
{¶ 21} Moore’s first assignment of error is overruled.
Assignment of Error #2 – Consent to Search Vehicle
{¶ 22} Although a search warrant ordinarily is required before a police officer may
search an individual’s property, “[c]onsent is an exception to the warrant requirement.”
Ojezua, 2016-Ohio-2659, 50 N.E.3d 14, at ¶ 15. “[T]he 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 submission to a claim of lawful authority.”
Id., quoting State v. Robinette, 80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997), quoting
Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
{¶ 23} We have identified six factors to be considered in determining whether a
defendant’s consent to a search was voluntary:
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. -11-
State v. Terrell, 2017-Ohio-7097, 95 N.E.3d 870, ¶ 82 (2d Dist.), citing State v. George,
2d Dist. Montgomery No. 25945, 2014-Ohio-4853, ¶ 28. “[A] search may be lawful even
if the person giving consent does not recite the talismanic phrase ‘You have my
permission to search.’ * * *” Id. at ¶ 83, quoting State v. Lane, 2d Dist. Montgomery No.
21505, 2006-Ohio-6830, ¶ 40.
{¶ 24} Although he acknowledges that the trial court “listed the appropriate six
factors” enumerated above, Moore asserts that the court erroneously concluded that
Moore voluntarily consented to Officer Overholtz’s search of Moore’s vehicle. Moore first
contends that the “coercive” circumstance of being handcuffed and in the back of a police
cruiser negated the voluntary nature of his consent. He also maintains that he was
demonstrably uncooperative throughout the traffic stop, that Overholtz did not tell him that
he could decline to consent, that no evidence was presented as to his education and
intelligence, and that “no admissible evidence” was presented regarding his awareness
of the presence of incriminating evidence inside his car. Finally, Moore suggests that his
purported consent was void because it was obtained after he had invoked his right to
counsel.
{¶ 25} We cannot conclude that the trial court erred by determining that Moore
voluntarily consented to the vehicle search. While the trial court recognized that Moore’s
custodial status3 “was clearly not voluntary” (Factor 1) and that Officer Overholtz “did not
advise Moore that he had the right to refuse to consent” (Factor 4) (Doc. #28, pp. 11, 12),
those two factors standing alone are not dispositive of the voluntariness of Moore’s
3 Although the State argues that Moore was not in custody and therefore had no right to counsel at that time (see Brief of Appellee, pp. 10-14), we need not address that argument in order to conclude that Moore voluntarily consented to the search of his vehicle. -12-
consent. See, e.g., Scheckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973) (an individual’s knowledge of the right to refuse consent “is not a
prerequisite of a voluntary consent”).
{¶ 26} Continuing to consider the other factors, the court found that the police did
not use coercive tactics (Factor 2) to acquire Moore’s consent; in fact, the trial court
observed that Officer Overholtz “[a]t no point * * * raise[d] his voice” and instead “spoke
to Moore in a calm and reasoned fashion” throughout their encounter. (Doc. #28, p. 11).
Our review of the cruiser camera recording confirms that the trial court’s finding to that
effect is supported by competent, credible evidence. See Curley, 2016-Ohio-7624, 73
N.E.3d 1050, at ¶ 9; Retherford, 93 Ohio App.3d at 592, 639 N.E.2d 498.
{¶ 27} Turning to Factor 3, the trial court found that Moore’s lack of cooperation
throughout much of the traffic stop did not carry over to the issue of searching his car. To
the contrary, the court found that Moore readily and “emphatically” encouraged Overholtz
to check inside Moore’s vehicle. (Doc. #28, p. 12). Once again, the cruiser camera
recording corroborates the trial court’s finding. See Curley at ¶ 9; Retherford at 592.
Furthermore, the court stressed that “[t]he adamant manner in which Moore told Overholtz
to check his car weighs heavily in [the trial court]’s conclusion * * * that Moore voluntarily
consented to the search of the car.” (Doc. #28, p. 12). We cannot say that the trial court
erred by affording substantial weight to that finding.
{¶ 28} Regarding Moore’s “education and intelligence” (Factor 5), the trial court
acknowledged that “[n]o testimony was presented” as to that factor, but found that the
cruiser camera recording established that Moore was “an intelligent individual, who was
aware of – and unequivocally invoked – his right to counsel.” Again, our independent -13-
review of the recording confirms the existence of competent, credible evidence supporting
the trial court’s finding. See Curley at ¶ 9; Retherford at 592. The court did not err by
weighing that factor as favoring the voluntariness of Moore’s consent.
{¶ 29} Finally, as to Factor 6, the trial court stated as follows:
Moore was aware that incriminating evidence would be found. Officer
Overholtz testified, “It wasn’t until after we found the drugs and everything,
I went back to him, you know, I told him what I found. And he knew it. He
admitted to it. He said he had a drug problem.
(Doc. #28, p. 12).
{¶ 30} Moore does not dispute the accuracy of the trial court’s finding as to Factor
6 (which is substantiated by the cruiser camera recording), but he faults the court for
considering Overholtz’s testimony that Moore admitted the drugs were his, because
Moore made those incriminating statements after invoking his right to counsel. In
advancing that argument, Moore conflates the issue of the admissibility of evidence to
prove his guilt (for which purpose the trial court suppressed that evidence) with the trial
court’s consideration of evidence relevant to the issue of the voluntariness of his consent
to search. “[S]tatements inadmissible in the prosecution’s case-in-chief because of [a]
lack of procedural safeguards” nonetheless may be used for other purposes if “the
trustworthiness of the statements satisfies legal standards.” See State v. Williams, 1st
Dist. Hamilton No. C-830036, 1984 WL 6669, *2 (June 27, 1984), citing Oregon v. Hass,
420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) and Harris v. New York, 401 U.S.
222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (with regard to use of suppressed statements for
impeachment purposes). Accord State v. Myers, 2d Dist. Darke No. 1643, 2006-Ohio- -14-
1604, ¶ 75, quoting State v. Hill, 75 Ohio St.3d 195, 207, 661 N.E.2d 1068 (1996) (“an
accused’s voluntary statement could be used to impeach even when the statement was
taken in violation of the right to have counsel present”).
{¶ 31} Because the trial court was not using Moore’s suppressed statements for
the purpose of assessing his guilt, it did not err by considering those statements as one
factor to be used to determine whether Moore’s consent to the search of his vehicle was
voluntary. His objection to the trial court’s conclusion on that basis is not well taken.
{¶ 32} Moore’s second assignment of error is overruled.
Assignment of Error #3 – Consent Void
{¶ 33} In his final assignment of error, Moore argues that his consent to the search
of his vehicle was void because it was given after he had invoked his right to counsel.
Recognizing that argument to be at odds with our existing precedent in State v. Carver,
2d Dist. Montgomery No. 21328, 2008-Ohio-4631, Moore asks us to overturn the Carver
decision.
{¶ 34} In Carver, the defendant claimed that his trial counsel performed deficiently
by failing to file a motion to suppress DNA evidence taken from buccal swabs collected
with the defendant’s consent, but after he had invoked his right to counsel. Id. at ¶ 114.
Citing U.S. v. LaGrone, 43 F.3d 322 (7th Cir. 1993), we stated as follows:
[E]ven after a suspect has invoked his right to counsel after Miranda
warnings, the police are not prohibited from asking a suspect to consent to
a search. * * * Accordingly, consent given after the invocation of Miranda
rights is valid as long as it is voluntary. Although physical evidence derived
from statements made in violation of Miranda is subject to suppression, * * * -15-
physical evidence obtained pursuant to the voluntary consent of the
defendant is not.
(Citations omitted.) Carver at 114.
{¶ 35} We since have reaffirmed that principle in a case more factually similar to
Moore’s. See State v. Severt, 2d Dist. Montgomery No. 24074, 2010-Ohio-5389, ¶ 47 (“a
police officer’s request to a defendant to search his vehicle does not constitute an
interrogation”). We also consistently have recognized that a consent to search does not
implicate Miranda concerns. See, e.g., State v. Tobias, 2d Dist. Montgomery No. 27975,
2000 WL 1299535, *4 (Sept. 15, 2000) (“A consent to search * * * does not implicate the
Fifth Amendment rights that Miranda [sic] is designed to protect”); State v. Lee, 2d Dist.
Greene No. 96 CA 115, 1997 WL 674657, *6 (Oct. 31, 1997) (“Miranda warnings * * *
have no direct bearing on the decision to consent to a search”).
{¶ 36} Additionally, the Eighth District Court of Appeals cited our decision in Carver
in likewise concluding that a defendant’s constitutional rights are not violated when police
request the defendant’s consent to a search after the defendant has invoked his right to
counsel, “because the request for consent to search [i]s not an interrogation under
Miranda.” State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169, ¶ 23. Other
courts have reached similar conclusions. See, e.g., State v. Casteel, 2017-Ohio-8303, 98
N.E.3d 889, ¶ 19 (4th Dist.) (“[t]he weight of authority holds that prior Miranda warnings
are not required to validate consent searches”); State v. Rice, 5th Dist. Licking No. 02-
CA-00096, 2003-Ohio-2860, ¶ 15, citing Lee. (“Miranda warnings have no direct bearing
on the issue of consent since consent is not interrogation nor a statement”).
{¶ 37} Moore’s third assignment of error is overruled. -16-
Conclusion
{¶ 38} The judgment of the trial court will be affirmed.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck Heather N. Jans John S. Pinard Hon. Dennis J. Langer