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Media > Newsletters > Law Enforcement Bulletin > November 2015 > State v. Carothers, 2015 Ohio 4569

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State v. Carothers, 2015 Ohio 4569

Question: Can an officer order a suspect to remove his shoes after obtaining consent to go through the suspect’s pockets?

Quick Answer: No. Consent must be voluntary and take into consideration the totality of the circumstances. An order by police to remove shoes was held to be nonconsensual and outside the scope of consent given to search a suspect’s pockets.

Facts: Carothers was a passenger in a car stopped for crossing a double yellow line. While one officer dealt with the driver who was suspected of using narcotics, another officer sought to get consent from Carothers to search the car, which belonged to Carothers. Carothers consented to the search and officers had both occupants exit the car. Officers told Carothers they were going to pat him down for weapons and asked him if he had anything in his pockets they needed to know about. Carothers responded “no,” and officers asked if they could go through his pockets in order to make sure. Carothers said “yes, that’s fine.” No contraband was discovered, but officers then ordered Carothers to take off his shoes. Carothers sought to suppress the drugs recovered in his shoe, claiming he did not give consent to the removal or search of his shoes. The court noted that consent to search must be voluntarily given and is determined based on the totality of the circumstances. Voluntariness is not demonstrated by a mere submission to a claim of lawful authority. The court concluded that the officer’s order for Carothers to remove his shoes was outside of Carothers’ consent to search and the drugs were therefore suppressed.

Keep in Mind: Consent can be limited or withdrawn by the person granting it. Unless another exception to the search warrant requirement is present that would allow continued searching, officers must be mindful and abide by such limitations or withdraws.