State v. Harris , 36 Ohio App. 3d 106 ( 1987 )

The defendant herein, David L. Harris, was arrested by the Cleveland police on May 31, 1985. On June 26, 1985, he was indicted on one count of carrying a concealed weapon.

On July 17, 1985, he entered a plea of not guilty.

On October 10, 1985, a hearing was held on the defendant's motion to suppress evidence seized by the police.

On January 24, 1986, the trial court granted the motion on the ground that the gun was illegally seized. The state appeals assigning one error for our review:

"The court erred in finding that there was not probable cause in stopping the defendant's car and subsequently doing a limited search of the front seat."

The testimony at the hearing established the following.

Officer Rudy Popovich, a nineteen-year veteran of the Cleveland Police Department, testified first. He stated that on May 31, 1985 he and his partner were assigned to a high crime area in an unmarked car. They observed a yellow car pulling around a corner peeling its tires. As this constituted a violation of a city ordinance, they pursued the car with their siren going. After exiting their vehicle, Popovich approached the driver's side, while his partner remained at the rear passenger portion of the car. He asked for a driver's license and that the driver step out of the car. Neither car door was operable, so the driver climbed out through the window. The defendant presented an expired driver's license. Popovich walked back towards the patrol car, turned and saw that his partner had entered the car through the passenger window. When his partner came out, he had a loaded revolver in his hand. The defendant stated that the gun was his. He had gone out, with the gun, to find a co-employee who had taken his paycheck.

Officer Thomas Donelon, the partner, took the stand next. He stated they observed the defendant squealing his tires and set out to pursue him. He stated that the defendant's vehicle was travelling rather fast and they had a difficult time keeping up with him. He observed the defendant, a large man, climb quickly out of the car window. He looked in the car because his suspicions were aroused. The defendant had made a movement with his shoulders when he first pulled over. Further, the rapidity with which he got out of the car raised his suspicions. He saw the handle of a gun sticking out from under the driver's seat.

The defendant took the stand next. His testimony contradicted that of Donelon, stating that the officer searched under the front seat of the car until he found the gun.

The trial court granted the motion to suppress and the state appeals.

We are compelled to find that the trial court erred in granting the motion to suppress and therefore reverse.

This court has noted that under the circumstances presented here, the state need not establish probable cause to search the defendant's automobile. Rather, the question is whether the limited search conducted by Officer Donelon was justified. SeeState v. Attaway (July 7, 1977), Cuyahoga App. No. 37202, unreported. Situations such as this require the application of the principles enunciated in Terry v. Ohio (1968), 392 U.S. 1, 44 O.O. 2d 383. Id. Thus, contrary to the trial court's position, probable cause was not essential to sustain the validity of the search.

In applying the Terry principles, the Ohio Supreme Court has held that "[w]here a police officer stops and approaches a motor vehicle at night for a traffic violation and sees the driver, while exiting the car, furtively conceal something under the front seat, a limited search of that area is reasonable for the purpose of the officer's protection. * * *" State v. Smith (1978), 56 Ohio St.2d 405, 10 O.O. 3d 515, 384 N.E.2d 280, syllabus.

This court has reversed the granting of a motion to suppress under circumstances quite similar to this. In State v. Romano (Nov. 18, 1982), Cuyahoga App. No. 44820, unreported, police officers observed a car proceed left of center and then execute an improper turn. One of the officers observed the driver bend down as they pulled him over. The officers approached the car to question him. He got out of the car. One of the officers approached the passenger side and looked in the window and observed a plastic bag containing pills on the "front" floor of the driver's side; he then found a loaded revolver under the driver's side of the front seat. This court reversed the suppression of that evidence on the authority of State v. Smith,supra.

Under the holding of State v. Smith, a limited search under the seat is justified even if the weapon was not visible to plain view. We find that the instant search was equally justified. The police officers observed the defendant commit a traffic violation and began to pursue him. They had difficulty keeping up with him. As they pulled him over, one of the officers observed him make a movement with his shoulders. The entire incident occurred in a high crime area. Under the circumstances, we must conclude the trial court erred in suppressing the weapon. The judgment must be reversed and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

PRYATEL, J., concurs.

MARKUS, C.J., dissents.