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

I believe that the evidence adequately supported the court's findings and order, so I would affirm its ruling. Accordingly, I dissent.

I The two arresting officers and the defendant testified at the motion hearing. The officers said that they were patrolling a "high crime area" in the early evening, using an unmarked police vehicle. They observed the defendant's car "peel" its tires while making a right turn. Such sudden acceleration violates a local ordinance, so they followed the defendant's car and ultimately stopped it after activating their siren.

One officer approached the driver's window and asked the defendant for identification. The defendant was alone in the car. When the defendant produced an expired driver's license, the officer requested him to leave the car. The defendant explained that the car doors were inoperable, so he crawled out through the driver's window. The officer then accompanied the defendant to the rear of the car for further discussion.

Meanwhile, the second officer approached the passenger side of the car. After the defendant left the car, this officer looked into the passenger window. He stated that he saw the handle of a gun protruding from under the driver's seat, next to a hump in the floor. Since he could not open the passenger door, the officer climbed into the car through the passenger window and recovered the gun. It contained six live rounds. The officers testified that the defendant told them it was his gun. When asked why he had it there, he reportedly said that he was looking for a man who had taken his paycheck. They then arrested him.

The defendant testified that he owned the gun. He stated that he placed it six to eight inches under the driver's seat before he went to work that morning. He had intended to take it to his brother-in-law after work. He said that he told the officer he was then trying to find a co-employee friend who had mistakenly taken his pay envelope.

The defendant denied that he had been speeding or had "peeled." He disputed the officer's testimony that the gun was visible from the officer's position outside the passenger window. He asserted that the seat and accumulated rubbish on the car's floor obstructed the officer's ability to see it there. He also stated that he saw and heard the officer searching under the passenger seat before he searched under the driver's seat. At the conclusion of the hearing, the court commented:

"* * * [T]he biggest problem in this case was the credibility of the officers as to whether or not, number one, the officer who said he approached the car from the passenger's side really saw in plain view the handle of the gun, which he stated was up against or close to the hump on the driver's side of the car.

"* * *

"The testimony is quite clear that * * * neither of the officers was concerned or had reasonable cause to believe that a felony was or had been committed.

"* * *

"There was no testimony from either of the officers that subsequent to the time that they stopped the vehicle, that they were in fear of any bodily harm."

II The state argues that the officer could properly search the automobile after validly stopping it, or seize the gun after lawfully observing it in plain view.

The police had authority to stop the defendant's car in order to issue a traffic citation, after they observed him "peeling." Sections 431.36 and 403.99 of the Cleveland Codified Ordinances; R.C. 2901.02(G) and 2935.26. They then had authority to request him to produce his driver's license and to exit his car. R.C.4507.35; Pennsylvania v. Mimms (1977), 434 U.S. 106, 111. When they discovered that his license had expired, they had authority to arrest him. See R.C. 4507.02, 4507.99 and 2935.03(A). However, they apparently chose not to arrest him until they found the disputed gun.

The police could lawfully search the automobile's passenger compartment without a warrant (1) as an incident to a custodial arrest, (2) with probable cause to believe they would find contraband when exigent circumstances justified a warrantless search, or (3) with reasonable grounds to believe that the defendant might endanger them by gaining access to a weapon, during their investigative stop. See Michigan v. Long (1983),463 U.S. 1032, 1049; New York v. Belton (1981), 453 U.S. 454, 460. Additionally, the officer could properly enter the car to seize the gun as contraband, if he saw it in plain view from outside the vehicle. Colorado v. Bannister (1980), 449 U.S. 1, 3-4; seeTexas v. Brown (1983), 460 U.S. 730, 741-743.

The officers could search the automobile, when they stopped it to issue a traffic citation, only if they reasonably feared for their safety. Michigan v. Long, supra. They could not conduct a "Terry-type" search merely because they suspected that they would find contraband. See, e.g., Sibron v. New York (1968),392 U.S. 40, 44 O.O. 2d 402.

In this case, one officer indicated no fear of the defendant. The other officer testified only that he was "suspicious" about the defendant's movements. He did not indicate what suspicions were aroused. Thus, the court could reasonably find that the policemen did not fear for their safety, but were conducting a groundless search for contraband.

Similarly, I believe the court could reasonably reject the officer's testimony that the gun was visible from outside the car. As a reviewing judge, I would not substitute my view of the evidence for the trial court's. I would affirm the court's order.