State v. Murray, 2017 Ohio 9332

On May 20, 2016, Mentor police stopped a Pontiac for a turn-signal violation; four occupants gave identifying information but no IDs. The driver was arrested for driving without a valid license.
Officers detected alcohol odor and observed open beer cans in the backseat; appellant Chad Murray, a rear-seat passenger, appeared nervous, breathing heavily, and avoided eye contact.
Officers conducted a brief pat-down of Murray (no weapons found) and had him empty his pockets; he complied and pockets were empty.
Officer Myers asked Murray to remove his loose, untied shoes; Murray promptly removed them, revealing a baggie of suspected heroin in his right shoe; Murray was then arrested.
Murray moved to suppress the heroin evidence, arguing the shoe search was not voluntary consent and exceeded a Terry frisk; the trial court denied suppression, and Murray entered a no-contest plea. The court of appeals affirmed and remanded for a nunc pro tunc correction to reflect a no-contest plea.

Issue	State's Argument	Murray's Argument	Held
Whether the search of Murray's shoes was consensual	Officers asked Murray to remove his shoes; his immediate compliance was voluntary consent to search the shoes	The officer’s language was a command, not a request; Murray complied with an order, not consent	Court held consent was voluntary under the totality of the circumstances and denied suppression
Whether removal of shoes exceeded a Terry frisk	State treats shoe removal as a consent search, not a frisk, so Terry scope is irrelevant	Removing shoes exceeded a weapons-frisk and was therefore unlawful	Court declined to address Terry scope because it found a valid consent exception
Whether the state met its burden to prove consent	State must show by clear and positive evidence that consent was freely and voluntarily given; video and officer testimony support voluntariness	Murray argues the state failed to meet its burden due to the officer’s imperative language	Trial court findings, supported by dash-cam video, constituted competent, credible evidence of voluntariness; appellate court affirmed
Whether trial court findings were clearly erroneous	State: bench credibility findings entitled to deference	Murray: objective analysis of officer’s words shows a command, so findings are incorrect	Appellate majority deferred to trial court; one judge dissented, arguing the officer’s phrasing was an instruction and consent was not voluntary

Schneckloth v. Bustamonte, 412 U.S. 218 (establishes totality-of-the-circumstances test for voluntariness of consent)
Katz v. United States, 389 U.S. 347 (warrant requirement and privacy principles)
Coolidge v. New Hampshire, 403 U.S. 443 (limits on warrantless searches)
Chambers v. Maroney, 399 U.S. 42 (warrantless search doctrine)
Davis v. United States, 328 U.S. 582 (consent search precedent)
Zap v. United States, 328 U.S. 624 (consent-search precedent)
Bumper v. North Carolina, 391 U.S. 543 (consent must be free and voluntary; burden on state)
Johnson v. Zerbst, 304 U.S. 458 (waiver principles cited regarding consent)
Florida v. Jimeno, 500 U.S. 248 (objective test for scope of consent)
Illinois v. Rodriguez, 497 U.S. 177 (objective-reasonableness standard for consent)
Florida v. Royer, 460 U.S. 491 (consent standards and burdens)
United States v. Drayton, 536 U.S. 194 (consensual encounter factors)
State v. Posey, 40 Ohio St.3d 420 (Ohio standard that state must show consent by clear and positive evidence)