On July 13, 2010, the Franklin County (Ohio) Court of Appeals, Tenth Appellate District, issued an excellent decision explaining the two types of consent to search a vehicle (actual consent and implied consent). In cases where law enforcement does not have the legal authority to search a vehicle for contraband, they may ask the driver for consent. The driver may say "No" which leaves law enforcement looking for some other legal basis to search the vehicle.
In the case where law enforcement claims the motorist consented to the search, the State must produce evidence that actual consent was given and that the consent was given "freely and voluntarily". Defense attorneys should look for evidence of express or implied duress or coercion in this instance.
In cases where the State claims the consent was "implied" and may be inferred from the motorist's actions or words, the bar is raised even higher. The State must demonstrate by "clear and positive" evidence that the motorist's implied consent was, in fact, actual consent. Also, the prudent defense attorney must argue that coercion or duress was at play thus negating the statement as being "voluntary".
Absent proving actual consent given freely and voluntarily, all evidence seized as a result of a search must be suppressed under Ohio law.