totality of the circumstances test in Ohio

2025The Ohio Supreme Court held in State v. George, 45 Ohio St.3d 325 (1989): {¶24} The totality-of-the-circumstances test of Illinois v. Gates, supra, is concisely set forth in that decision at 238-239, 103 S.Ct. at 2332 : * * The task of the issuing magistrate is simply to make a practical, common- sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

2020The totality of the circumstances test, set forth in Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), does not give the police the authority to arrest a person and then search that person’s phone for probable cause to support the arrest.

2026“Factors relevant to a totality-of-the- circumstances analysis include ‘the age, mentality, and prior criminal experience of 9 OHIO FIRST DISTRICT COURT OF APPEALS the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of physical threat or inducement.’” Id., quoting State v. Slaughter, 2000 Ohio App. LEXIS 1821 at *8 (1st Dist. Apr. 28, 2000).

2023“Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis.” State v. Osie, 140 Ohio St.3d 131 , 2014-Ohio-2966, ¶ 93 , quoting State v. Clark, 38 Ohio St.3d 252, 261 (1988). {¶11} The trial court made each of the following factual findings.

2013The totality-of-the-circumstances test requires “primary analysis of the following facts and circumstances: ‘(1) proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee’s presence at the scene of the accident.’” Ruckman [v. Cubby Drilling, Inc.], 81 Ohio St.3d [117,] 122, 689 N.E.2d 917 [(1998)], quoting Lord v. Daugherty (1981), 66 Ohio St.2d 441 , 20 O.O.3d 376 , 423 N.E.2d 96 , syllabus; see Fisher v. Mayfield, 49 Ohio St.3d 275 , 551 N.E.

2013The totality-of-the-circumstances test requires “primary analysis of the following facts and circumstances: ‘(1) proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee’s presence at the scene of the accident.’” Ruckman [v. Cubby Drilling, Inc.], 81 Ohio St.3d [117,] 122, 689 N.E.2d 917 [(1998)], quoting Lord v. Daugherty (1981), 66 Ohio St.2d 441 , 20 O.O.3d 376 , 423 N.E.2d 96 , syllabus; see Fisher v. Mayfield, 49 Ohio St.3d 275 , 551 N.E.

2019Id. {¶ 12} The Supreme Court of Ohio established a totality of the circumstances test to determine whether a person is subject to hospitalization pursuant to R.C. 5122.01(B) in In re Burton, 11 Ohio St.3d 147, 149 (1984).

2013"Where the proof required must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). {¶13} In In re Burton, 11 Ohio St.3d 147, 149 (1984), the Supreme Court of Ohio established a totality of the circumstances test to determine whether a person is subject No. 13AP-291 5 to hospitalization pursuant to R.C. 5122.01(B).

2021See Wampler, 93 Ohio St.3d at 116-117, 132 ; Vail, 72 Ohio St.3d at 281. {¶32} In Scott, the Ohio Supreme Court adopted a totality of the circumstances test for determining whether an allegedly defamatory statement was the allegation of a factual item or was a non-actionable protected opinion.

2009This totality-of-the-circumstances test “ ‘can only be used as a compass to show general direction and not a map to set rigid boundaries.’ ” Id., quoting Scott, 25 Ohio St.3d at 250 , 25 OBR 302, 496 N.E.2d 699 .

2024Barker, 2016-Ohio-2708, at ¶ 24 ; In re C.S., 115 Ohio St.3d 267 , 2007-Ohio-4919 , ¶ 108, citing In re Dalton S., 273 Neb. 504, 514 (2007) (“We agree with the Supreme Court of Nebraska’s recent holding that a totality-of-the-circumstances analysis is the proper test to be used in ascertaining whether there has been a valid waiver of counsel by a juvenile.”); State v. Carder, 9 Ohio St.2d 1, 9-10 (1966) (applying totality- of-the-circumstances test to determine whether confession made by juvenile defendant 1 Although the timing is not exactly clear from the record, it appears N.D.’s father may

2023State v. Barker, 149 Ohio St.3d 1 , 2016-Ohio-2708 , 73 N.E.3d 365, ¶ 24 ; Jackson at ¶ 32. {¶32} Typically, considerations under the totality-of-the-circumstances test include “the age, mentality, and prior criminal experience of the accused; the length, 13 OHIO FIRST DISTRICT COURT OF APPEALS intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.” Wesson at ¶ 35 , quoting Edwards at paragraph two of the syllabus.

2007State v. Carter (1994), 69 Ohio St.3d 59 ; State v. Bobo (1988), 37 Ohio St.3d 177 . {¶ 44} Applying the totality of the circumstances test, I find appellant's engaging of others in conversation in an area known for drug activity insufficient to justify a Terry stop. {¶ 45} Officer Swank did not observe the exchange of any item between appellant and those with whom he engaged in conversation.

2007Illinois v. Wardlow (2000), 528 U.S. 119 , 125 , 145 L.Ed.2d 570 , 120 S.Ct. 673 . {¶ 13} In deciding whether reasonable suspicion exists, courts must examine the "`totality of the circumstances' of each case to determine whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." Arvizu , supra, quoting, United States v. Cortez (1981), 449 U.S. 411 , 417-418 , 66 L.Ed.2d 621 , 101 S.Ct. 690 ; State v. Bobo (1988), 37 Ohio St.3d 177 , 524 N.E.2d 489 , paragraph one of the syllabus, citing, State v. Freeman (1980), 64 Ohio St.2d 291 , 414 N.E.2d 10

2025The Ohio Supreme Court held in State v. George, 45 Ohio St.3d 325 (1989): {¶24} The totality-of-the-circumstances test of Illinois v. Gates, supra, is concisely set forth in that decision at 238-239, 103 S.Ct. at 2332 : * * The task of the issuing magistrate is simply to make a practical, common- sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

2020“Even when a magistrate’s determination of probable cause may be doubtful or marginal, the appellate courts should still give it ‘great deference.’ [State v. George at 330, 544 N.E.2d 640 .]” State v. Williams, 173 Ohio App.3d 119 , 2007-Ohio-4472 , 877 N.E.2d 717 , ¶ 13 (6th Dist.). {¶ 15} Even under the totality-of-the-circumstances standard, an affidavit in support of a search warrant must contain “the presence of some indicia of veracity of the informant or the reliability of the information material to the probability of evidence of crime.” Williams at ¶ 18.

2022These issues must be resolved on a totality-of- the-circumstances test, which places both equivocal language and technical possibilities in context. -17- Id. at 534 . {¶ 32} In Petitjean, interrogating officers warned the defendant that he was facing a murder charge and that, if officers had to gather evidence through investigation, “ ‘you go bye-bye for a big long * * * time—for life or you lose your life.’ “ Id. at 529 .

2022These issues must be resolved on a totality-of- the-circumstances test, which places both equivocal language and technical possibilities in context. -17- Id. at 534 . {¶ 32} In Petitjean, interrogating officers warned the defendant that he was facing a murder charge and that, if officers had to gather evidence through investigation, “ ‘you go bye-bye for a big long * * * time—for life or you lose your life.’ “ Id. at 529 .

2019I would also hold that a police officer’s knowledge of secondhand anecdotal information from an unidentified source does not constitute personal experience or specialized training. {¶ 30} This case is a far cry from Terry and United States v. Arvizu, 534 U.S. 266 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002), both of which involved multiple facts that cumulatively led an officer to infer criminal activity, requiring a totality- of-the-circumstances analysis.

2019I would also hold that a police officer’s knowledge of secondhand anecdotal information from an unidentified source does not constitute personal experience or specialized training. {¶ 30} This case is a far cry from Terry and United States v. Arvizu, 534 U.S. 266 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002), both of which involved multiple facts that cumulatively led an officer to infer criminal activity, requiring a totality- of-the-circumstances analysis.

2016Muskingum County, Case No. CT2015-0050 6 {¶12} We engage in this totality of the circumstances test now because “[n]o judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us.” Terry v. Ohio, supra, 392 U.S. at 15 .

2015Without engaging in the totality-of-the-circumstances analysis, the court concluded, “in the facts before us, the canine alert did not justify the full search of Robinson’s person.” Id. 2 Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). - 25 - Case No. 7-15-03 {¶37} The Ninth District Court of Appeals focused on the fact that the trial court’s probable cause determination was based on “the canine alert alone.” Id. at ¶ 10.

2019Stores, 66 Ohio App.3d 188, 193-94 (8th Dist.1990). {¶ 12} In addition, "[t]hree main factors contribute to a court's finding the evidence insufficient to demonstrate the foreseeability of a crime as a matter of law: (1) spatial separation between previous crimes and the crime at issue; (2) difference in degree and form between previous crimes and the crime at issue; and (3) lack of evidence revealing defendant's actual knowledge of violence." Id.

2019Stores, 66 Ohio App.3d 188, 193-94 (8th Dist.1990). {¶ 12} In addition, "[t]hree main factors contribute to a court's finding the evidence insufficient to demonstrate the foreseeability of a crime as a matter of law: (1) spatial separation between previous crimes and the crime at issue; (2) difference in degree and form between previous crimes and the crime at issue; and (3) lack of evidence revealing defendant's actual knowledge of violence." Id.

2000Under Section 14 , Article I of the Ohio Constitution, the totality-of-the-circumstances test is controlling in an unlawful detention to determine whether permission to search a vehicle is voluntary. ( State v. Robinette (1995), 73 Ohio St.3d 650 , 653 N.E.2d 695 , paragraph two of the syllabus, vacated.) 3.

2000Under Section 14 , Article I of the Ohio Constitution, the totality-of-the-circumstances test is controlling in an unlawful detention to determine whether permission to search a vehicle is voluntary. ( State v. Robinette (1995), 73 Ohio St.3d 650 , 653 N.E.2d 695 , paragraph two of the syllabus, vacated.) 3.

2021The rule applies where “(1) ‘but for’ the employment, the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than the risk common to the public.” Id. {¶ 23} The totality-of-the-circumstances test requires “primary analysis of the following facts and circumstances: ‘(1) proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee’s presence at the scene of the

2021The rule applies where “(1) ‘but for’ the employment, the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than the risk common to the public.” Id. {¶ 23} The totality-of-the-circumstances test requires “primary analysis of the following facts and circumstances: ‘(1) proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee’s presence at the scene of the

2017A totality of the circumstances analysis requires consideration of the defendant's "age, mentality, and prior criminal experience * * *; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards , 49 Ohio St.2d 31 , 358 N.E.2d 1051 (1976), paragraph two of the syllabus, vacated on other grounds , 438 U.S. 911 , 98 S.Ct. 3147 , 57 L.Ed.2d 1155 (1978) {¶ 29} Here, Leonard was 42 years old at the time of the incident.

2017A totality of the circumstances analysis requires consideration of the defendant's "age, mentality, and prior criminal experience * * *; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards , 49 Ohio St.2d 31 , 358 N.E.2d 1051 (1976), paragraph two of the syllabus, vacated on other grounds , 438 U.S. 911 , 98 S.Ct. 3147 , 57 L.Ed.2d 1155 (1978) {¶ 29} Here, Leonard was 42 years old at the time of the incident.

2021Wampler, 3 Ohio St.3d at 127; Scott, 25 Ohio St.3d at 250 . {¶34} In applying the totality of the circumstances test to ascertain the status of a statement as a protected opinion, the Court supplied “at least four factors” to review: (1) the specific language used; (2) whether the statement was verifiable; (3) the general context of the statement; and (4) the broader context in which the statement appeared.

2021Wampler, 93 Ohio St.3d at 125 (private individual sued another private individual who expressed protected opinions in a writing criticizing the plaintiff’s ethics). {¶33} This totality of the circumstances test is “a compass to show general direction and not a map to set rigid boundaries.” Scott, 25 Ohio St.3d at 250 .

2019Thompkins' answer to Helgert's question about praying to God for forgiveness for shooting the victim was sufficient to show a course of conduct indicating waiver. {¶32} In State v. Roberts, 32 Ohio St.3d 225 , 513 N.E.2d 720 (1987), the Ohio Supreme Court applied a totality of the circumstances test and found that the warnings given earlier had gone stale at the time the defendant made incriminating statements: The totality of the circumstances test is explained by the Supreme Court of North Carolina in State v. McZorn (1975), 288 N.C. 417 , 219 S.E.2d 201 .

2019Thompkins' answer to Helgert's question about praying to God for forgiveness for shooting the victim was sufficient to show a course of conduct indicating waiver. {¶32} In State v. Roberts, 32 Ohio St.3d 225 , 513 N.E.2d 720 (1987), the Ohio Supreme Court applied a totality of the circumstances test and found that the warnings given earlier had gone stale at the time the defendant made incriminating statements: The totality of the circumstances test is explained by the Supreme Court of North Carolina in State v. McZorn (1975), 288 N.C. 417 , 219 S.E.2d 201 .

2018The majority concludes, however, that the impermissible conduct in the identification has no consequences since the victim was ultimately familiar with Smith and confidently identified him subsequent to the inappropriate identification procedure. {¶104} The totality of the circumstances test in Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), applied by the majority, however, weighs heavily 25 against permitting the admission of the identification.

2018The majority concludes, however, that the impermissible conduct in the identification has no consequences since the victim was ultimately familiar with Smith and confidently identified him subsequent to the inappropriate identification procedure. {¶104} The totality of the circumstances test in Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), applied by the majority, however, weighs heavily 25 against permitting the admission of the identification.

2020Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis.” Id.

2017Crawford No. 3-12-09, 2013-Ohio-1941, ¶ 28 , citing Connelly, 479 U.S. at 170 (“The voluntariness of a waiver * * * has always depended on the absence of police overreaching.”) and State v. Getsy, 84 Ohio St.3d 180, 189 (1998) (“Evidence of use of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) triggers the totality-of-the-circumstances analysis.”).

2018State v. Green (1996), 117 Ohio App.3d 644, 652-653 , 691 N.E.316; State v. McDade (Sept. 25, 1998), 11th Dist.

2016State v. Green, 117 Ohio App.3d 644, 653 , 691 N.E.2d 316 (1st Dist.1996).

2008See MTD Products, Inc. , 61 Ohio St.3d at 70 . {¶ 19} Mitchell argues that the totality of the circumstances test weighs in her favor because Cambridge received a benefit from her traveling to and from her patient's apartment to provide care for its client.

2007Under the totality of the circumstances test, the "primary analysis" involves a consideration of the following "facts and circumstances: `(1) the proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee's presence at the scene of the accident.'" Id., quoting Lord , supra, at syllabus. *Page 6 {¶ 16} As a general proposition, "an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not

2020Dickerson v. U.S., 530 U.S. at 433-434, 120 S.Ct. 2326 , 147 L.Ed.2d 405 , citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). {¶19} The Supreme Court of Ohio addressed confessions in the juvenile context in Barker, infra: The totality-of-the-circumstances test takes on even greater importance when applied to a juvenile. * * * The totality-of-the-circumstances test allows courts necessary flexibility to consider a juvenile's age and experience.

2020Dickerson v. U.S., 530 U.S. at 433-434, 120 S.Ct. 2326 , 147 L.Ed.2d 405 , citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). {¶19} The Supreme Court of Ohio addressed confessions in the juvenile context in Barker, infra: The totality-of-the-circumstances test takes on even greater importance when applied to a juvenile. * * * The totality-of-the-circumstances test allows courts necessary flexibility to consider a juvenile's age and experience.

2020Dickerson v. U.S., 530 U.S. at 433-434, 120 S.Ct. 2326 , 147 L.Ed.2d 405 , citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). {¶19} The Supreme Court of Ohio addressed confessions in the juvenile context in Barker, infra: The totality-of-the-circumstances test takes on even greater importance when applied to a juvenile. * * * The totality-of-the-circumstances test allows courts necessary flexibility to consider a juvenile's age and experience.

2020Dickerson v. U.S., 530 U.S. at 433-434, 120 S.Ct. 2326 , 147 L.Ed.2d 405 , citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). {¶19} The Supreme Court of Ohio addressed confessions in the juvenile context in Barker, infra: The totality-of-the-circumstances test takes on even greater importance when applied to a juvenile. * * * The totality-of-the-circumstances test allows courts necessary flexibility to consider a juvenile's age and experience.

2024Barker, 2016-Ohio-2708, at ¶ 24 ; In re C.S., 115 Ohio St.3d 267 , 2007-Ohio-4919 , ¶ 108, citing In re Dalton S., 273 Neb. 504, 514 (2007) (“We agree with the Supreme Court of Nebraska’s recent holding that a totality-of-the-circumstances analysis is the proper test to be used in ascertaining whether there has been a valid waiver of counsel by a juvenile.”); State v. Carder, 9 Ohio St.2d 1, 9-10 (1966) (applying totality- of-the-circumstances test to determine whether confession made by juvenile defendant 1 Although the timing is not exactly clear from the record, it appears N.D.’s father may

2009We also hold that the totality-of-the-circumstances test established in In re C.S., 115 Ohio St.3d 267 , 2007-Ohio-4919 , 874 N.E.2d 1177, ¶ 108 , applies to determine whether a valid waiver of counsel has been made by a juvenile.

2018State v. Eley, 77 Ohio St.3d 174, 178 , 672 N.E.2d 640 (1996); State v. Burton, 1st Dist.

2018State v. Eley, 77 Ohio St.3d 174, 178 , 672 N.E.2d 640 (1996); State v. Burton, 1st Dist.