Summary
In State v. Childress, 4 Ohio St.3d 217, 448 N.E.2d 155 (1983), the Ohio Supreme Court held that "[i]t is permissible for law enforcement officials to seek a waiver of the accused's Fourth Amendment rights even after he has invoked his right to counsel."
Summary of this case from State v. DennisonOpinion
No. 82-453
Decided May 4, 1983.
Criminal law — Search and seizure — Consent to search must be voluntary under totality of all surrounding circumstances — Waiver of Fourth Amendment rights may be sought even after Fifth Amendment right to counsel invoked.
O.Jur 3d Criminal Law §§ 172, 176, 213, 328.
1. In order to waive his Fourth Amendment privilege against unreasonable searches and seizures, the accused must give a consent which is voluntary under the totality of all the surrounding circumstances. ( Schneckloth v. Bustamonte, 412 U.S. 218, followed.)
2. It is permissible for law enforcement officials to seek a waiver of the accused's Fourth Amendment rights even after he has invoked his right to counsel. ( Edwards v. Arizona, 451 U.S. 477, distinguished.)
APPEAL from the Court of Appeals for Wood County.
On March 17, 1981, the defendant-appellee, Charles D. Childress, was traveling through Indiana when he was detained by the State Police in connection with a robbery of a gasoline station which had occurred a few hours earlier in Bowling Green, Ohio. The Indiana officials had learned of the crime via a teletype message which identified the appellee and his automobile as being involved. The suspect allegedly wore a nylon stocking mask, carried a 20-gauge shotgun and stole approximately $200 in small denominations.
The appellee was transported to the State Police post located in Ligonier, Indiana. While there, Childress apparently stuffed a nylon stocking into the side of his chair. A patdown search was conducted and Childress was found to be carrying, among other things, seventy-four bills in one- and five-dollar denominations.
Shortly thereafter, Childress was advised of his rights and asked questions. He indicated that he wished to have an attorney present before answering any questions and the interrogation ceased.
Upon being called, Detective Douglas C. Dukes arrived at the post and became involved in a conversation with the appellee. At some point, the appellee asked whether his automobile would be towed. Dukes stated that the authorities intended to impound the vehicle and obtain a warrant to search it. He further stated that a warrant would not be necessary if Childress consented to the search. The appellee was then given a consent to search form which he read and signed. In the ensuing search the officers discovered, among other items, a box of 20-gauge shotgun shells and a stocking mask.
The appellee was extradited to Ohio and by an indictment filed April 9, 1981, was charged with aggravated robbery, a violation of R.C. 2911.01. On April 16, 1981, the appellee entered a plea of not guilty. Subsequently, he moved to suppress all statements and physical evidence which had been obtained in violation of his constitutional rights. A hearing was held and the motion was overruled.
On July 14, 1981, the appellee withdrew his former plea and entered a plea of no contest. He was found to be guilty as charged and was sentenced.
Upon appeal, the court of appeals reversed and remanded, determining that the trial court erred in failing to suppress the evidence seized in the search of the appellee's automobile. The court concluded that the search had been conducted in violation of the appellee's Fifth Amendment rights as expressed in Edwards v. Arizona (1981), 451 U.S. 477, rehearing denied, 452 U.S. 973.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Ms. Betty D. Montgomery, prosecuting attorney, and Mr. John P. Donahue, for appellant.
Mr. John P. Duffin, county public defender, for appellee.
In reversing the trial court's denial of the appellee's motion to suppress, the court of appeals relied upon Edwards v. Arizona, supra. Upon close examination, however, it is our opinion that that case is distinguishable, and therefore not applicable to the matter which is now before us.
In Edwards, the defendant was charged with multiple offenses and was taken into custody for questioning. Upon being advised of his rights under Miranda v. Arizona (1966), 384 U.S 436 [36 O.O.2d 237], the defendant requested the presence of counsel and the questioning ceased. On the following morning, however, the police officers visited the defendant in jail in order to resume interrogation. Although the defendant stated that he did not want to talk, the detention guard told him he must and took him to the officers. In the meeting which followed, the defendant was again informed of his rights and he proceeded to make an incriminating statement which was used at trial.
The United States Supreme Court held that the use of the defendant's confession violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution. The court stated that once he invokes his right to counsel, the accused may not be subjected to further interrogation until counsel is made available unless he himself initiates the further communication. Edwards v. Arizona, supra, at 484-485. Moreover, although a Fifth Amendment right may be waived, this can only be done where the accused knowingly and intelligently relinquishes or abandons a known right or privilege. Id. at 482. Under the facts presented in Edwards, such a waiver did not take place.
The court was careful to contrast these circumstances from the situation where the accused waives his Fourth Amendment privilege against unreasonable searches and seizures. In the latter instance, the standard to be applied is the lesser one set forth in Schneckloth v. Bustamonte (1973), 412 U.S. 218, which requires only that the accused give a consent which is voluntary under the totality of all the surrounding circumstances. Id. at 226; Edwards v. Arizona, supra, at 483. The implied holding of Edwards is that it is permissible for law enforcement officials to continue to seek a waiver of the accused's Fourth Amendment rights even after he has invoked his right to counsel. United States v. Clymore (E.D. N.Y. 1981), 515 F. Supp. 1361, 1368.
Applying these principles to the facts which are before us, it is our conclusion that Childress waived a Fourth Amendment, rather than a Fifth Amendment, right. Accordingly, the conduct of the Indiana officials in seeking that waiver even after Childress expressed his desire for counsel was not improper. Moreover, based upon the test set forth in Schneckloth, it is evident that the appellee knowingly and voluntarily consented to the automobile search and that the fruits thereof were therefore admissible at trial.
Accordingly, for the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.