The police officers’ interaction with Mr. Penwell was a consensual encounter, and regardless of the fact that the search occurred while Mr. Penwell lay on a bed in a corridor in the hospital’s emergency department, his consent to the search was voluntary under the circumstances. Mr. Penwell’s conviction is therefore affirmed.
State v. Penwell
2021 – Ohio – 1216
Second District Appellate Court
Clark County, Ohio
On Wednesday October 11, 2017, Mr. Daniel Penwell was admitted to Springfield Regional Medical Center to be treated for a possible overdose. Officer Meredith Freeman and Officer Sanders of the Springfield Police Division, who were already on the premises for an unrelated matter, were dispatched to speak with Penwell “[I]n reference to his overdose.”
Springfield Regional Medical Center, 100 Medical Center Drive, Springfield, Ohio.
The officers were told that medical personnel had administered Narcan to Mr. Penwell and that he had responded favorably to the treatment. When the officers approached him, Mr. Penwell lay on a bed in a corridor in the emergency department. The officers spoke with him, and Officer Freeman asked him whether he had consumed any illicit drugs and requested permission to search his person. Mr. Penwell consented and it would be this consent to search that would lead to this appeal. The officers did not deliver a Miranda warning because Penwell “[W]asn’t under arrest” and gave his consent to the search. In a pocket in Mr. Penwell’s pants, Officer Freeman found two capsules, “[O]ne of which was empty and [the other of which] had a tan substance in it.”
Chemical analysis later revealed that the substance was Carfentanil, a Schedule II The amount of the drug recovered was 0.10 grams, which was less than the statutory bulk amount.
On July 29, 2019, Mr. Penwell moved to suppress the evidence found on his person by Officer Freeman. Following a hearing held on August 6, 2019, the trial court overruled the motion and sentenced Mr. Penwell to seven months of incarceration.
The determination of whether an encounter is consensual should be focused on the conduct of the police officers involved, rather than the state of mind of the person with whom the officers interact.
Among other things, “[F]actors that might indicate [that a person’s interaction with police officers is an investigatory detention, as opposed to a consensual encounter,] include the threatening presence of several police officers, the display of a weapon, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer[s’] request might be required, approaching the person in a nonpublic place, and blocking the [person]’s path.” State v. Cosby, 177 Ohio App.3d 670 (2008) citing United States v. Mendenhall, 446 U.S. 544 at 554 (1980)
Consent to a search “[I]s an exception to the warrant requirement that requires the State to ‘show by “clear and positive” evidence that the consent was “freely and voluntarily” given.’” State v. Posey, 40 Ohio St.3d 420, 427, (1988)
“[F]or purposes of determining whether Penwell consented voluntarily to a search, we find that he was not in custody when the officers requested his consent, and that the officers did not employ coercive police procedures to convince him to consent. Officer Freeman’s testimony provided no indication that Penwell was anything less than cooperative during the encounter, notwithstanding his initial denial that he had consumed any illegal drugs.”
Here, Officers Freeman and Sanders approached Mr. Penwell after being advised that he had been admitted to the emergency department at the Springfield Regional Medical Center for an opiate overdose, that he had received several doses of Narcan, and that he had responded favorably to such treatment. Officer Freeman testified further that Narcan is effective only for treating opiate overdoses, and her testimony implied that her interaction with Penwell was hardly her first interaction with the victim of an overdose.
Thus, Officer Freeman had specific, articulable facts that supported the rational inference that Mr. Penwell had overdosed on an opiate, because he otherwise would not have responded to treatment with Narcan.
The police officers’ interaction with Mr. Penwell was a consensual encounter, and regardless of the fact that the search occurred while Mr. Penwell lay on a bed in a corridor in the hospital’s emergency department, his consent to the search was voluntary under the circumstances. Mr. Penwell’s conviction is therefore affirmed.
Information for this article was obtained from State v. Penwell, 2021 – Ohio – 1216.
Lesson Learned:
- The doctrine of consent will be evaluated on three elements; Knowingly, Voluntarily and Intelligently. The suspect must waive all three of these elements. The consent analysis will be evaluated on a totality of the circumstances. For law enforcement the most challenged of these elements is voluntariness. Here, Mr. Penwell claimed he did not waive voluntarily because he had overdosed on opioids and had no recollection of this encounter with law enforcement. Unfortunately for him several doses of Narcan were required to counteract his impairment. Becasuse he was ‘Narcan’d’ back to lucidness he consented to the search of his pants and the discovery of the
- In other legal cases, the suspect was found not to have waived his consensual rights when he laid in a hospital or other type of bed. This was based on the totality of circumstances when law enforcement surrounded the bed, acted in an authoritative manner or other conduct that removed the suspect’s ability to ‘voluntarily’ waive his Fourth Amendment right. This is why this court opined “The determination of whether an encounter is consensual should be focused on the conduct of the police officers involved, rather than the state of mind of the person with whom the officers interact.”.
- Law enforcement must always be cognizant of their actions during every encounter. When law enforcement is in an encounter where the officer will request to search a person, bag, package, car, home or other object, courts will closely examine the physical position of the officers, words, tone and inflection of the officer’s voice and overall demeanor when consent was requested. When consent to search is requested law enforcement should obtain the consent on video; body camera, cruiser camera or preferably both.
- For more information on consent see One Headlight, Two Joes and Three Stolen Checks totaling $202.02 Lead to THE Most Important Consent Case and Did Cambridge Police Enter the Home under Exigent Circumstance or Consent?.
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