State v. Grubb

[Cite as State v. Grubb, 186 Ohio App.3d 744, 2010-Ohio-1265.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
The STATE OF OHIO,
APPELLEE, CASE NO. 4-09-32
v.
GRUBB, OPINION
APPELLANT.
Appeal from Defiance Municipal Court
Trial Court No. CRB 0900239
Judgment Reversed and Cause Remanded
Date of Decision: March 29, 2010
APPEARANCES:
David A. Land, for appellee.
James E. Hitchcock, for appellant.
Case No. 4-09-32
ROGERS, Judge.
{¶1} Defendant-appellant, Rachel Grubb, appeals the judgment of the
Defiance Municipal Court overruling her motion to suppress drug paraphernalia
obtained during a search related to a traffic stop. On appeal, Grubb contends that
the trial court erred in overruling her motion to suppress because the search was
unconstitutional pursuant to Arizona v. Gant (2009), 556 U.S. ___, 129 S.Ct. 1710,
173 L.Ed.2d 485. Based upon the following, we reverse the judgment of the trial
court.
{¶2} In February 2009, Grubb was charged via complaint with one count
of possession of drug paraphernalia in violation of R.C. 2925.14, a misdemeanor
of the fourth degree. The charge stemmed from an incident during which a police
officer pulled over a vehicle driven by Michael Grubb, Grubb’s husband, in which
Grubb was riding, arrested Michael for driving with a suspended license,
proceeded to search Grubb’s purse inside the vehicle, discovered several glass
pipes inside the purse containing burnt residue and the odor of marijuana, and
discovered a small amount of marijuana inside the passenger compartment of the
vehicle.1 Thereafter, Grubb entered a plea of not guilty to the complaint.
{¶3} In March 2009, Grubb filed a motion to suppress the evidence seized
as a result of the traffic stop, arguing that the search was unconstitutional because
1
The record also reflects that Michael Grubb was charged with driving under suspension and marijuana
possession.
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the arresting officer’s statement was devoid of any suspicion that Grubb was
armed and dangerous or presented any threat that would justify a search of the
vehicle or her purse.
{¶4} In April 2009, the trial court held a hearing on the motion to
suppress,2 at which the following testimony was heard.
{¶5} Deputy Benjamin Moser of the Defiance County Sheriff’s Office
testified that on February 17, 2009, he was patrolling on State Route 2, south of
State Route 249, in Defiance County, when he observed a westbound vehicle
traveling in excess of the posted speed limit; that he conducted a registration check
on the vehicle and discovered that the registered owner’s license was suspended;
that he initiated a stop of the vehicle based on the speeding violation and identified
the registered owner, Michael, as the vehicle’s operator based upon images from
his in-car computer; that Michael’s wife, later identified as Grubb, was seated in
the passenger seat of the vehicle; that he asked Michael to exit the vehicle,
informed him that his license was under suspension, handcuffed him, placed him
under arrest, and seated him in the back of his patrol car; and that he believed he
asked Michael whether there was anything illegal in the vehicle, and he believed
Michael indicated that there was not.
2
The suppression hearing was a joint hearing concerning both Grubb’s and Michael’s cases, and the trial
court granted only Michael’s motion to suppress the evidence of marijuana discovered in the vehicle.
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{¶6} Deputy Moser continued that he checked his in-car computer and
discovered that Grubb did not have a driver’s license; that he approached the
vehicle, asked Grubb to exit the passenger seat and stand toward the front of the
vehicle, and Grubb complied; that he observed a purse on the floorboard of the
vehicle, opened it, and discovered several broken smoking pipes and one intact
pipe; that there was residue on the pipes that smelled like marijuana; that Grubb
stated that the pipes did not belong to her, but that the purse belonged to her; that
he placed Grubb in handcuffs and proceeded to search the passenger compartment
of the vehicle; that he discovered a small amount of marijuana under the passenger
seat; that both Michael and Grubb denied ownership of the marijuana and pipes;
and that Grubb was outside the vehicle at the time he searched her purse, and he
had arrested her at the time he searched the remainder of the passenger
compartment of the vehicle.
{¶7} On cross-examination, Deputy Moser testified that the area in which
he initiated the stop of the Grubbs’ vehicle was rural, but that he could not say
whether it was a high-crime area; that when he initiated the stop, he did not
observe that the Grubbs appeared “to be hiding anything, or moving stuff around
in the car”; that Michael did not resist the pat-down of his person or his arrest and
did not mention anything about a weapon; that he did not find any weapons on
Michael’s person; that it took approximately 15 minutes for him to remove
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Michael from the vehicle, arrest him, and move him into the patrol car; that during
the approximate 15-minute period during which he arrested and secured Michael,
Grubb was sitting in the passenger seat of the vehicle and he did not see her
making any furtive movements; that Grubb questioned why he had asked her to
exit the vehicle, but had no “major attitude”; that Grubb made no unusual
movements or threatening comments; that he did not believe that Grubb was going
to shoot or hurt him; that he did not know whether he had any specific reason to
suspect that she was armed, but that “when [he walks] up to a car [he suspects]
that, you know, anybody could be armed with anything”; that he searched the car
because he “was doing a search incident to arrest. [He] was looking for anything,
you know, weapons, anything illegal, anything that shouldn’t be in the car”; that at
the time he searched the vehicle, he had already placed Michael under arrest, and
it would have been impossible for Michael to reach into the vehicle; and that he
decided to “cut them a break” and not impound the vehicle.
{¶8} In July 2009, the trial court overruled Grubb’s motion to suppress,
finding that when Deputy Moser removed Grubb from the vehicle, she was not
under arrest, and he proceeded to search the area where she had been seated for
officer-safety purposes; that upon checking her immediate vicinity in the vehicle,
Deputy Moser discovered her purse, which contained smoking pipes with
marijuana residue; that the basic holding of Gant, 556 U.S. ___, 129 S.Ct.1710,
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173 L.Ed.2d 485, was that “[p]olice may search the passenger compartment of a
vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that
the arrestee might access the vehicle at the time of the search, or that the vehicle
contains evidence of the offense of arrest”; that the facts at issue were
distinguished from Gant because Michael was not the sole occupant of the vehicle
and Grubb, not being under arrest initially, would have had access to her area in
the vehicle; that for officer-safety purposes, Deputy Moser was permitted to search
her area with the probability of then returning her to the vehicle to wait for a ride;
and that upon discovering the drug paraphernalia in her purse, Deputy Moser
acquired probable cause to place Grubb under arrest and had reason to search the
vehicle to look for further evidence of her crime, possession of drug paraphernalia.
{¶9} In August 2009, Grubb withdrew her plea of not guilty and entered a
plea of no contest to “drug offenses,” for which the trial court determined she was
guilty and sentenced her to a 30-day jail term, suspended in its entirety
conditioned on no similar violations, and imposed a six-month driver’s-license
suspension and a $250 fine. Thereafter, Grubb appealed her conviction and
sentence.
{¶10} In September 2009, this court dismissed Grubb’s appeal, finding that
the trial court’s judgment entry of conviction was not a final, appealable order
because its statement that Grubb entered a plea of no contest to “drug offenses”
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did not sufficiently state to what offense her plea and conviction related pursuant
to Crim.R. 32(C); State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. Shortly
thereafter, the trial court issued a second judgment entry to reflect that Grubb was
convicted of possession of drug paraphernalia in violation of R.C. 2925.14.
{¶11} It is from this judgment that Grubb appeals, presenting the following
assignment of error for our review.
The trial court erred when it overruled the defendant’s motion to
suppress certain materials found in her husband’s car and in her
purse. The search clearly violated Arizona v. Gant, [___ U.S. ___,]
129 S.Ct. 1710, 173 L.Ed.2d 48509.
Standard of Review
{¶12} “Appellate review of a decision on a motion to suppress evidence
presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,
2006-Ohio-601, ¶12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d
1117, 1119. The trial court serves as the trier of fact and is the primary judge of
the credibility of the witnesses and the weight to be given to the evidence
presented. State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when
an appellate court reviews a trial court’s ruling on a motion to suppress, it must
accept the trial court’s findings of facts so long as they are supported by
competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-
3665, ¶100, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate
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court must then review the application of the law to the facts de novo. Roberts,
citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.
Search and Seizure
{¶13} The Fourth Amendment to the United States Constitution and
Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and
seizures. Neither the Fourth Amendment to the United States Constitution nor
Section 14, Article I of the Ohio Constitution explicitly provides that violations of
its provisions against unlawful searches and seizures will result in the suppression
of evidence obtained as a result of those violations, but the United States Supreme
Court has held that the exclusion of evidence is an essential part of the Fourth
Amendment. Mapp v. Ohio (1961), 367 U.S. 643, 649; Weeks v. United States
(1914), 232 U.S. 383, 394. The primary purpose of the exclusionary rule is to
remove the incentive to violate the Fourth Amendment and thereby deter police
from unlawful conduct. State v. Jones (2000), 88 Ohio St.3d 430, 434, overruled
by State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931.
{¶14} The United States Supreme Court has repeatedly emphasized the
general rule that “ ‘searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated
exceptions.’ ” Gant, 556 U.S. ___, 129 S.Ct. at 1716, 173 L.Ed.2d 485, quoting
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Katz v. United States (1967), 389 U.S. 347, 357. In order for a law-enforcement
officer to conduct a search of an automobile without first obtaining a warrant, the
officer must typically possess probable cause, which means that “ ‘there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.’ ” State v. Carlson (1995), 102 Ohio App.3d 585, 600, quoting Illinois v.
Gates (1983), 462 U.S. 213, 214. However, even when probable cause is not
present, many exceptions have been established for warrantless searches
conducted under certain circumstances. See, e.g., exigent-circumstances
exception, United States v. Edwards (1974), 415 U.S. 800; search-incident-to-
arrest exception, Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23
L.Ed.2d 685; New York v. Belton (1981), 453 U.S. 454; automobile exception,
United States v. Ross (1982), 456 U.S. 798; State v. Mesa (1999), 87 Ohio St.3d
105; inventory-search exception, Colorado v. Bertine (1987), 479 U.S. 367, 372;
plain-view exception, Harris v. United States (1968), 390 U.S. 234; “plain feel”
exception, State v. Evans (1993), 67 Ohio St.3d 405, 408; consensual-search
exception, Florida v. Bostick (1991), 501 U.S. 429; “stop and frisk” exception,
Terry v. Ohio (1968), 392 U.S. 1.
{¶15} At a suppression hearing, the state bears the burden of establishing
that a warrantless search and seizure falls within one of the exceptions to the
warrant requirement, Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph two
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of the syllabus; State v. Kessler (1978), 53 Ohio St.2d 204, 207, and that it meets
Fourth Amendment standards of reasonableness. Maumee v. Weisner (1999), 87
Ohio St.3d 295, 297, citing 5 LaFave, Search and Seizure (3d Ed.1996), Section
11.2(b).
Automobile Searches Incident to Arrest
{¶16} Even when probable cause to search an automobile is lacking, it has
long been established that “[w]hen a police officer has made a lawful custodial
arrest of the occupant of an automobile, the officer may, as a contemporaneous
incident of that arrest, search the passenger compartment of that automobile,”
including any containers therein. State v. Murrell (2002), 94 Ohio St.3d 489, 764
N.E.2d 986, at syllabus, following New York v. Belton (1981), 453 U.S. 454, 460,
101 S.Ct. 2860, 69 L.Ed.2d 768. See also Gant, 556 U.S. ___, 129 S.Ct. at 1717,
173 L.Ed.2d 485. In Belton, a single law-enforcement officer conducted a traffic
stop of four men in a vehicle traveling in excess of the speed limit. The officer
then discovered that none of the men owned the vehicle, smelled the odor of burnt
marijuana, and observed an envelope on the vehicle floor marked “supergold,” a
term associated with marijuana. Belton at 455-456. The officer discovered that
the envelope contained marijuana, removed all four men from the vehicle, arrested
them for marijuana possession, searched them, and, as the men stood by the side
of the car, searched a jacket located in the passenger compartment and discovered
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cocaine. Id. at 456. The holding in Belton was based in large part on the
recognition that “articles inside the relatively narrow compass of the passenger
compartment of an automobile are in fact generally, even if not inevitably, within
‘the area into which an arrestee might reach.’ ” Id. at 460, quoting Chimel, 395
U.S. at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685. See also Gant at 1717. Thus, the
underlying rationales of the exception were officer safety and preservation of
evidence. Gant at 1712; Chimel at 763.
{¶17} Despite these rationales behind the search-incident-to-arrest
exception, many courts have broadly interpreted Belton to permit searches of
automobiles incident to arrest even when there was no possibility that the arrestee
could access her automobile to threaten officer safety or to destroy or conceal
evidence, such as when she was already arrested and secured inside the patrol car.
Gant at 1718; see, e.g., Murrell, 94 Ohio St.3d 489, 764 N.E.2d 986; State v.
Gray, 2d Dist. No. 22688, 2009-Ohio-1411, ¶17 (finding that “an arrestee
handcuffed in the backseat of a squad car changes nothing * * *”); State v. Clancy
(Apr. 19, 2002), 2d Dist. No. 18844, 2002 WL 628124. Compare Murrell at 497-
498 (Moyer, C.J., dissenting) (observing that “[t]he majority acknowledges that
the occupant must first be removed from the automobile and placed under arrest
before the police officer may search the automobile. Therefore, since the occupant
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is already under arrest and separated from the vehicle, the Chimel justifications for
the search, i.e., police officer safety and the protection of evidence, disappear”).
{¶18} In light of criticism of some courts’ broad application of Belton, 453
U.S. 454, the United States Supreme Court recently revisited the issue of
automobile searches incident to arrest in Gant, specifically addressing situations
where the search is conducted after the scene is “secured.” In Gant, 556 U.S. ___,
129 S.Ct. 1710, 173 L.Ed.2d 485, a defendant was arrested for driving with a
suspended license. After he was arrested, handcuffed, and placed in the back seat
of the locked patrol car, police officers proceeded to search Gant’s vehicle and
discovered illegal drugs inside a jacket in the passenger compartment. Finding
that the goals behind the exception, officer safety and preservation of evidence,
were not served where the scene and vehicle’s sole occupant were already
“secured,” the Supreme Court narrowed the breadth of automobile searches
incident to arrest, as set forth in Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d
768, by requiring that the searches be restricted to the reaching distance of the
passenger compartment of the vehicle when the individual is unsecured, or where
the police have a reasonable belief that evidence of the crime for which the
individual was arrested may be found in the vehicle. Gant at 1718-1719.
{¶19} Despite its limitation on automobile searches incident to arrest, the
Supreme Court emphasized in Gant that even if a search incident to arrest was not
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justified, the other established exceptions to the warrant requirement may
nevertheless apply depending on the circumstances. For example, the court
remarked that pursuant to Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct.
3469, an officer may “search a vehicle’s passenger compartment when he has
reasonable suspicion that an individual, whether or not the arrestee, is ‘dangerous’
and might access the vehicle to ‘gain immediate control of weapons.’ ” Gant, 556
U.S. ___, 129 S.Ct. at 1721, 173 L.Ed.2d 485, quoting Long at 1049.
Application of Gant
{¶20} Since its release, a number of Ohio courts have applied Gant,
including the Second Appellate District in State v. Gilbert, 184 Ohio App.3d 642,
2009-Ohio-5528. In Gilbert, a police officer stopped a vehicle containing four
occupants because the driver had committed a traffic violation. The officer
discovered that the driver’s license had been suspended, arrested her, and removed
her from the vehicle. Thereafter, the officer checked the status of the remaining
three occupants, discovered that a female passenger had an outstanding warrant for
her arrest, and arrested the female passenger and removed her from the vehicle.
The remaining two occupants, including Gilbert, did not have any outstanding
warrants; however, the officer removed them from the vehicle for officer-safety
purposes so that other officers could search the vehicle incident to arrest. An
officer was stationed to monitor the two occupants while the search of the vehicle
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was being conducted by several other officers. A pat-down search of the two
occupants revealed nothing, and they were neither arrested nor handcuffed.
During the search of the vehicle, an officer discovered marijuana seeds in the
passenger compartment. Due to discovery of the seeds, an officer proceeded to
search Gilbert more thoroughly and uncovered several bags of illegal substances
in his shoe.
{¶21} Thereafter, the Second District reversed Gilbert’s convictions for
drug possession, finding that the search was unlawful. The court found that at the
time the search occurred, multiple police officers were on the scene, and all
vehicle occupants had been removed and were under police control. Thus, the
court concluded, none of the occupants had access to the vehicle’s passenger
compartment. Further, the court observed, there was no indication that the search
was conducted to uncover evidence relevant to either of the crimes for which the
driver and female passenger were arrested. Based upon these findings, the court
concluded that although the search would have been permissible under the
traditional interpretation of Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768,
it was unlawful under the new limitations in Gant, stating as follows:
It is particularly significant that Belton searches authorize
police officers to search not just the passenger compartment but
every purse, briefcase, or other container within that space. A rule
that gives police the power to conduct such a search whenever an
individual is caught committing a traffic offense, when there is no
basis for believing evidence of the offense might be found in the
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vehicle, creates a serious and recurring threat to the privacy of
countless individuals. Indeed, the character of that threat implicates
the central concern underlying the Fourth Amendment-the concern
about giving police officers unbridled discretion to rummage at will
among a person’s private effects.
Gilbert, 2009-Ohio-5528, at ¶34, quoting Gant, 556 U.S. ___, 129 S.Ct. at
1720, 173 L.Ed.2d 485.
{¶22} In State v. Canter, 10th Dist. No. 09AP-47, 2009-Ohio-4837, the
Tenth Appellate District also considered Gant. In Canter, a police officer stopped
a vehicle containing two occupants for a traffic violation, arrested the driver for
driving without a valid license, and secured the driver in the patrol car. Thereafter,
the officer ordered the other occupant, Canter, from the vehicle, and, upon his
attempting to exit with a small backpack, ordered Canter to return the backpack to
the vehicle. The officer then searched the backpack and uncovered drugs and drug
paraphernalia. The Tenth District observed that Gant did not provide guidance for
situations where the driver of the vehicle was arrested and secured, but the vehicle
contained other occupants who were not arrested and secured. The court found
that since this type of situation did not yet “fit into a well-defined, clearly
delineated exception, Katz tells us that the search was per se unreasonable until
another well-defined, well-delineated exception can be found.” Canter, 2009-
Ohio-4837, at ¶6, citing Katz, 389 U.S. 347. Nevertheless, in this specific
situation, the court concluded that the search did fit into another exception—the
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automobile exception—because the officers conducting the stop smelled the odor
of marijuana emanating from the vehicle, and that due to the odor, the officers had
probable cause to search for evidence of drug abuse. Canter, 2009-Ohio-4837, at
¶7-8. We also note that prior to conducting the search, the police had already
determined that they were going to impound the vehicle. Canter, 2009-Ohio-4837,
at ¶3.
Assignment of Error
{¶23} In her sole assignment of error, Grubb contends that the trial court
erred in overruling her motion to suppress evidence based on the alleged
unconstitutionality of the search pursuant to Gant, 556 U.S. ___, 129 S.Ct. 1710,
173 L.Ed.2d 485. Specifically, Grubb argues that the search of her purse and the
passenger compartment of the vehicle was not justified by either the interests of
officer safety or preservation of evidence. We agree.
{¶24} The state argues that the case sub judice is distinguishable from
Gilbert, because multiple police officers were present at the stop in Gilbert, as
opposed to the sole police officer present during the stop of the Grubbs; because
receiving backup assistance would have been difficult given the rural area; because
Grubb was close enough to Deputy Moser to pose a threat to him; because she had
not been restrained and was not being watched by a separate law-enforcement
officer, allowing her access to the vehicle; and because this situation was more
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analogous to Belton than Gant because Belton involved one officer and four
unsecured arrestees under suspicion of a drug offense, whereas Gant involved
several officers and one secured arrestee with a license-suspension offense.
{¶25} This situation is similar to Gant in that Michael’s arrest was for a
license-suspension offense, and not for a drug offense; thus, the rationale that drug
offenders are often armed was inapplicable as a justification for this search.
Additionally, although the Grubbs’ vehicle contained two occupants, more than
the single occupant in Gant, this was also far fewer than the four unsecured
arrestees involved in Belton.
{¶26} Here, Deputy Moser candidly testified that he could not say whether
the rural area where he stopped the Grubbs was a high-crime area; that he did not
observe the Grubbs making any furtive movements when he initiated the stop; that
he found no indication that Michael had a weapon after conducting a pat-down;
that at the time he searched Grubb’s purse, Michael was arrested, handcuffed, and
locked in the patrol car; and that at that point, it would not have been possible for
Michael to reach for a weapon in the vehicle. Deputy Moser offered no testimony
that he believed that evidence of Michael’s offense of driving under suspension
could be found in the vehicle, nor is any such evidence apparent from the record.
Thus, under the rule of Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485, we
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cannot find that the search was lawful pursuant to the search-incident-to-arrest
exception to the general-warrant requirement.
{¶27} As the search-incident-to-arrest exception is inapplicable here, we
must move on to determine whether another exception to the warrant requirement
was present and justified the search of Grubb’s purse and the passenger
compartment. Deputy Moser testified that during the approximate 15-minute
period during which he arrested and secured Michael, he did not see Grubb
making any furtive movements; that Grubb questioned why he asked her to exit
the vehicle, but had no “major attitude”; that Grubb made no unusual movements
or threatening comments; that he did not believe that Grubb was going to shoot or
hurt him; that he did not know whether he had any specific reason to suspect that
she was armed, but that “when [he walks] up to a car [he suspects] that, you know,
anybody could be armed with anything”; and that he searched the car because he
“was doing a search incident to arrest. [He] was looking for anything, you know,
weapons, anything illegal, anything that shouldn’t be in the car.” We cannot find,
based on this testimony, that Deputy Moser possessed reasonable suspicion that
Grubb was “dangerous” and might access the vehicle to retrieve a weapon. See
Gant, 556 U.S. ___, 129 S.Ct. at 1721, 173 L.Ed.2d 485; Long, 463 U.S. at 1049,
103 S.Ct. 3469. Compare Arizona v. Johnson (2009), 129 S.Ct. 781 (finding that
an officer’s pat-down of a vehicle’s passenger did not violate Fourth Amendment
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constraints where the traffic stop was executed in a neighborhood associated with
gang activity; where the officer testified that the defendant’s behavior and
clothing, namely a bandana in a local gang color and possession of a police
scanner, caused her to question his gang affiliation; where the officer learned upon
questioning the defendant that he had served time in prison and was from a town
associated with gang activity; and where the officer testified that all of the
foregoing factors caused her to suspect that the defendant possessed a weapon).
Finally, as Deputy Moser testified that he had decided not to impound the vehicle,
we cannot find that the search would have been justified under the inventory
exception to the warrant requirement. The state has not argued that any other
exception to the warrant requirement was applicable in this situation, nor is any
apparent from the record. Thus, we find that the search of Grubb’s purse and
subsequent search of the passenger compartment was unreasonable and that the
trial court erred in overruling her motion to suppress.
{¶28} Accordingly, we sustain Grubb’s assignment of error.
{¶29} Having found error prejudicial to the appellant herein, in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded
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PRESTON, J., concurs.
SHAW, J., concurs in judgment only.
__________________
SHAW, J., concurring in judgment only.
{¶30} I do not concur in the portions of the majority opinion applying by
analogy the Second District Court of Appeals decision in Gilbert to the present
case. On the contrary, I believe that the number of police officers involved in the
original stop and arrest is a crucial factor in these cases. In this case, we have a
single police officer with two individuals in a stopped vehicle in a remote location
at 2:00 a.m. The driver of the stopped vehicle has been removed from the vehicle,
arrested, and placed in the cruiser. The female passenger remains alone and
unchecked in the stopped vehicle for several minutes while the officer processes
the driver.
{¶31} The driver has informed the police officer that the female passenger
does not have a driver’s license. As a result, the officer had to necessarily make a
decision about whether to impound the vehicle and/or transport the passenger
somewhere, or leave both car and passenger by the side of the road at the remote
location at 2:00 a.m. Having secured the driver, the officer surely had the right to
approach the passenger to verify her identity, her license status, and her ability to
obtain separate transportation apart from the stopped vehicle or the police cruiser.
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{¶32} It is significant to me that the officer at this point would not know
what the passenger’s reaction would be to the fact that the defendant has been
arrested and that she will not be permitted to drive the car anywhere else. If the
officer intended to transport the passenger in his cruiser, the cases cited by the
majority would clearly support the officer’s right to search her purse first.
However, even under the limited testimony presented in this case, it is my view
that a prudent police officer would be justified in checking the passenger's purse
for his own safety when approaching the passenger in order to make any of the
foregoing decisions. And in any event, in deciding whether to impound the vehicle
or merely secure it to be left on the side of the road, some examination of the
vehicle could be in order for the same reason.
{¶33} The only reason that I concur in the judgment reached in this case,
despite the foregoing reservations, is that in this rather unique instance, none of
these circumstances are testified to or otherwise explained in the record. On the
contrary, the officer in this case specifically testified that he was not concerned for
his safety at any time, that he had decided not to impound the vehicle, and we do
not know from the record whether the passenger was transported by the police
officer or left with the car at the scene of the stop - or whether the officer even
contemplated making any of these decisions in conjunction with his search of the
purse.
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{¶34} For these reasons, I concur in the judgment reached in this particular
case.
______________________
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