State v. Waldbillig , 1 Ohio St. 2d 50 ( 1964 )

Taut, C. J.

Because the automobile was searched without a warrant and was not searched at the time that defendant and its other occupants had been arrested and before they had been taken to the police station, the Supreme Court of the United States requires a state court to suppress as evidence all the items found as a result of that search. See Preston v. United States (1964), 376 U. S., 364, 11 L. Ed. (2d), 777, 84 S. Ct., 881; Stoner v. California (1964), 376 U. S., 483, 11 L. Ed. (2d), 856, 84 S. Ct., 889. Cf. Ker v. California (1963), 374 U. S., 23, 10 L. Ed. (2d), 726, 83 S. Ct., 1623.

However, it is clear that the machete knife was not found as a result of any unreasonable search. It was clearly visible and seen by one of the arresting officers at the time of defendant’s arrest. Also, it is apparent that the .38 caliber revolver was not found as a result of any unreasonable search. After the lawful arrest of those in possession of defendant’s automobile, the police rightfully took possession of that automobile and removed it to the police station.

One of the reasons for permitting a search as incident to a lawful arrest is to avoid destruction of evidence by the arrested person or his friends or accomplices. Preston v. United State, supra. That reason would fully support the action of the police in taking possession of the automobile and removing it to the police station.

The .38 caliber revolver was found as a result of the police doing this (something which they had a lawful right and duty to do) and not as the result of any search of the automobile.

We are therefore of the opinion that the Common Pleas Court properly refused to suppress as evidence either the machete knife or the .38 caliber revolver which was admitted in evidence against defendant.

In the indictment in the instant case, it is charged that defendant “unlawfully did carry concealed on or about his person a dangerous weapon, to wit: a .38 caliber revolver and one home-made knuckles. ’ ’

The statute under which defendant is charged (Section 2923.01, Revised Code) states, so far as pertinent:

“No person shall carry a pistol, bowie knife, dirk or other dangerous weapon concealed on or about his person # # (Emphasis added.)

It would have been sufficient to support defendant’s conviction to show that he carried “concealed * * * about his person” either the .38 caliber revolver found under the seat of his automobile which he had been driving shortly before his arrest or the “home-made knuckles” found in the glove compartment of his automobile.

As hereinbefore pointed out, the revolver was properly admitted in evidence against him and a jury could hardly have found with reason that he had not been carrying it concealed about his person. In other words, if the jury applied the law to the evidence properly admitted against defendant, the jury could reasonably reach no other conclusion than that defendant was guilty of the crime of carrying a pistol concealed about his person. Hence, it would be difficult to find that the admission in evidence of the chain, hacksaw blades, tin snips and pair of knuckles, which were found in the illegal search of defendant’s car, could have contributed to defendant’s conviction. In our opinion, there is not, to use the words of Mr. Chief Justice Warren in the opinion of the court in Fahy v. Connecticut (1963), 375 U. S., 85, 11 L. Ed. (2d), 171, 84 S. Ct., 229, “a reasonable possibility that” the admission of that illegally obtained “evidence complained of might have contributed to the conviction” of defendant. Certainly, it cannot be said that the defendant may have been prejudiced by the erroneous admission of that evidence. Section 2945.83, Revised Code, provides in part:

“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:

í Í * # *

“(C) The admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby * *

In our opinion, therefore, the judgment of conviction must be affirmed.

Judgment affirmed.

Zimmerman, Matthias, Griffith and Herbert, JJ., concur. O’Neill and Gibson, JJ., dissent.