State v. Kelley

[Cite as State v. Kelley, 2011-Ohio-3545.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 10CA3182
vs. :
MICHAEL KELLEY, II, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Lori J. Rankin, 2 West Fourth Street, Chillicothe, Ohio
45601
COUNSEL FOR APPELLEE:1 Matthew Schmidt, Ross County Prosecuting Attorney, and
Jeffrey C. Marks, Ross County Assistant Prosecuting
Attorney, 72 North Paint Street, Chillicothe, Ohio 45601
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 7-14-11
ABELE, J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of
conviction and sentence. The trial court found Michael Kelley, II, defendant below and appellee
herein, guilty of possession of cocaine and sentenced him to serve five years in prison.
{¶ 2} Appellant raises the following assignment of error for review:
"THE TRIAL COURT ERRED IN OVERRULING THE
DEFENDANT-APPELLANT’S MOTION TO SUPPRESS [THE]
EVIDENCE IN VIOLATION OF THE
DEFENDANT-APPELLANT’S RIGHTS UNDER THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
AND ARTICLE ONE, SECTION TEN OF THE OHIO
1
Michael M. Ater, former Ross County Prosecuting Attorney, now serves as a Ross County Common Pleas judge.
ROSS 10CA3182 2
CONSTITUTION.”
{¶ 3} On June 11, 2009, Major Crimes Task Force Detectives Goble and Wallace
received information from two confidential informants that appellant would be traveling on State
Route 104 from Chillicothe to Columbus in a black Chevy pick-up truck in order to obtain a
large amount of crack cocaine.2 The detectives then set up surveillance on Route 104 and
subsequently observed the vehicle that the informant had described. The detectives then
requested a cruiser to stop the vehicle.
{¶ 4} Officer Campbell spoke with the two detectives over his cellphone and learned
that the detectives suspected that the vehicle contained illegal drugs. After Officer Campbell
followed the vehicle and noted that he could not read the license plate, he stopped the vehicle.
The two detectives also arrived on the scene, and a canine officer arrived within minutes.
{¶ 5} The canine officer walked the dog around the vehicle, and the dog alerted on the
passenger side. Officer Campbell then requested appellant to exit the vehicle. Officer
Campbell stated that as appellant exited the vehicle, he noticed a piece of tissue paper sticking
out of the back side of appellant’s waistband. He further observed that appellant appeared
“tense, stiff and nervous” and that he walked “[k]ind of tight, stiff.” The officer stated that he
asked appellant to “put his hands up on the truck, spread his legs, began checking his pockets,
legs, his whole body for any contraband or any articles that need identified.” Officer Campbell
stated that when he checked “between [appellant’s] butt cheeks [he] felt a large bulge, between
his cheeks.” The officer stated that the bulge “felt somewhat smaller than [a] golf ball” and that
2
We have derived the facts from the testimony presented at the motion to suppress hearing and the information
contained in the search warrant affidavit, which was admitted at the motion hearing.
ROSS 10CA3182 3
“it was hard but not completely stiff.” Officer Campbell explained that after he felt the bulge,
appellant “tightened up his butt cheeks to where I could no longer feel it.” The officer stated
that he “continued telling him to relax, trying to check the area again[, but appellant] continued
to keep his butt cheeks tight to where I could no longer feel the object.”
{¶ 6} Officer Campbell stated that he limited his search of appellant to the exterior of
appellant’s clothing, but candidly admitted that he was searching for contraband, not simply a
weapon. The officer further stated that during his search, he felt inside appellant’s pockets and
that he “press[ed] his fingers into an area where [appellant’s] anus would be located.”
{¶ 7} Detective Goble then asked appellant what he had in his anal cavity and groin
area. Appellant denied that he was trying to hide anything. Officer Campbell continued to
attempt to get appellant to relax so that he could determine the nature of the object, but appellant
would not relax. Detective Goble then applied for, and received, a warrant to search appellant’s
person.
{¶ 8} Detective Goble’s search warrant affidavit described the basis for the officers’
suspicion that drugs would be in the vehicle. The detective stated that the two CIs
"advised that there is a black male from Columbus who goes by the name of ‘big
boy’ selling large amounts of crack cocaine in Chillicothe. Both informants
advised that ‘big boy’ is a large black male and usually wears his hair in braids or
cornrows. Both informants also advised there is always a smaller black male
with short hair who is always with ‘big boy’ also selling crack cocaine in
Chillicothe. CI #2 advised that he/she has personally observed both ‘big boy’
and the other black male keep large amounts of crack cocaine down there [sic]
pants in their anal cavity and groin area. CI #2 also advised that the smaller black
male often carries a firearm and CI #2 has seen him with the firearm on numerous
occasions.
CI #1 has provided detectives with information in the past that has proven
reliable and has purchased crack cocaine for detectives in a controlled setting on
at least four occasions.
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CI #2 has provided detectives with information in the past that has proven
reliable and has purchased crack cocaine for detectives in a controlled setting at
least once. CI #2 also has provided information that has led to a search warrant
with drugs and paraphernalia being seized and persons arrested on drug charges.
On 6/11/09 detectives were contacted by CI #2 who advised that ‘big boy’
and the other black male who is always with ‘big boy’ were on there [sic] way to
Columbus[,] Ohio to pick up a load of crack cocaine. The informant advised that
they were in a black full size pick up truck with the number 41 written on the back
window with white paint. The informant further advised that Clark Graves was
driving them to Columbus to get the crack cocaine. CI #2 advised that he/she
believes that they travel State Route 104 to and from Columbus.
Detectives set up surveillance on State Route 104 and at approximately
1:45 pm detectives observed * * * a black Chevy truck * * * traveling s/b on State
Route 104 at Fairgrounds Rd. The truck is registered to Clark Graves.
Detectives observed that there were three subjects in the vehicle and the number
41 was written on the back glass of the vehicle with white paint.
****
Upon stopping the vehicle detectives identified Clark Graves as the driver
and the two passengers were Michael P. Kelley II (large black male with corn
rows) and Khyle Thomas (smaller black male with short haircut). Ofc. Cyn Judd
of the Chillicothe Police Department was requested at the scene to walk his canine
around the vehicle. * * * The canine alerted to the passenger side of the vehicle
for the presence of illegal drugs.
Each subject was asked to exit the vehicle individually. Detectives
observed that Michael P. Kelley II, who was the first to exit the vehicle, had his
pants and boxer shorts down and were down past his butt. [Detective Goble] also
observed that he had what appeared to be toilet paper sticking out his pants.
Kelley was extremely nervous and when [Detective Goble] talked to him observed
that he was shaking.
The second subject to exit the vehicle was Khyle Thomas. This detective
also observed that he had a piece of toilet paper sticking out of his pocket. * * *.”
{¶ 9} A search of appellant’s person led to an indictment that charged appellant with
second-degree felony possession of crack cocaine in violation of R.C. 2925.11. Later, appellant
filed a motion to suppress evidence and argued that: (1) the officer’s search exceeded the scope
of a weapons patdown search; and (2) the officer did not have probable cause to search him.
The appellee argued, however, that the dog’s alert on the vehicle provided the officer with
probable cause to search appellant.
ROSS 10CA3182 5
{¶ 10} The trial court overruled appellant’s motion and determined that the dog's alert
provided the officer with probable cause to search appellant. Alternatively, the court determined
that the facts contained in the search warrant affidavit (i.e., the facts that led to Officer
Campbell’s search) provided probable cause to search appellant.
{¶ 11} Subsequently, appellant entered a no contest plea. The trial court accepted
appellant's plea and sentenced him to serve a mandatory five year prison term. This appeal
followed.
{¶ 12} In his sole assignment of error, appellant argues that the trial court erred by
overruling his motion to suppress evidence. In particular, appellant contends that (1) the law
enforcement officer lacked probable cause to search his person; (2) the dog’s alert on the vehicle
did not provide the probable cause necessary to search his person; and (3) even if Officer
Campbell possessed probable cause to search, the appellee failed to present any evidence
concerning an exception to the warrant requirement.
{¶ 13} Generally, the appellee argues that (1) the officer did not conduct a full-scale
search of appellant, but, instead, simply conducted a limited patdown search for weapons; and (2)
the dog’s alert on the vehicle provided the officer with probable cause to conduct any search of
appellant that may have occurred.
A
STANDARD OF REVIEW
{¶ 14} Initially, we note that appellate review of a trial court’s decision regarding a
motion to suppress evidence involves mixed questions of law and fact. See State v. Long
(1998), 127 Ohio App. 3d 328, 332, 713 N.E.2d 1. When ruling on a motion to suppress
ROSS 10CA3182 6
evidence, a trial court assumes the role of trier of fact and is in the best position to resolve
questions of fact and to evaluate the witness credibility. See State v. Fanning (1982), 1 Ohio
St.3d 19, 20, 437 N.E.2d 583; State v. Dunlap (1995), 73 Ohio St. 3d 308, 314, 652 N.E.2d 988.
Accordingly, a reviewing court must defer to a trial court’s findings of fact if competent, credible
evidence exists to support the trial court’s findings. See Long, supra, at 332; State v. Medcalf
(1996), 111 Ohio App. 3d 142, 145, 675 N.E.2d 1268; Dunlap, supra. The reviewing court then
must independently determine, without deference to the trial court, whether the trial court
properly applied the substantive law to the facts of the case. See Long; State v. Williams
(1993), 86 Ohio App. 3d 37, 41, 619 N.E.2d 1141; State v. Venham (1994), 96 Ohio App. 3d 649,
653, 645 N.E.2d 831; State v. Fields (Nov.29, 1999), Hocking App. No. 99 CA 11. See,
generally, Ornelas v. United States (1996), 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911.
B
FOURTH AMENDMENT
{¶ 15} The Fourth Amendment to the United States Constitution protects individuals
against unreasonable governmental searches and seizures. See, e.g., Delaware v. Prouse (1979),
440 U.S. 648, 662, 99 S. Ct. 1391, 59 L. Ed. 2d 660. “[S]earches 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.”
Katz v. United States (1967), 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576. Once the
defendant demonstrates that he was subjected to a warrantless search or seizure, the burden shifts
to the state to establish that the warrantless search or seizure was constitutionally permissible.
See Maumee v. Weisner (1999), 87 Ohio St. 3d 295, 297, 720 N.E.2d 507; Xenia v. Wallace
ROSS 10CA3182 7
(1988), 37 Ohio St. 3d 216, 524 N.E.2d 889, paragraph two of the syllabus.
{¶ 16} In the case at bar, the appellee attempts to justify the officer’s conduct under
either of the following two exceptions: (1) the patdown search for weapons exception; and (2)
the probable cause exception.
C
PATDOWN SEARCH FOR WEAPONS EXCEPTION
{¶ 17} Before we address the patdown search for weapons exception, we first observe
that the appellee did not attempt to justify the officer’s conduct as a patdown search during the
trial court proceedings. Nevertheless, in the interests of justice we will consider whether this
exception applies.
{¶ 18} During a routine traffic stop, an officer may conduct a patdown search for
weapons upon a passenger in the vehicle if the officer has a “reason to believe that [the officer] is
dealing with an armed and dangerous individual, regardless of whether [the officer] has probable
cause to arrest the individual for a crime.” Terry v. Ohio (1968), 392 U.S. 1, 27, 88 S. Ct. 1868,
20 L. Ed. 2d 889; see, also, Arizona v. Johnson (2009), 555 U.S. 323, 129 S. Ct. 781, 787, 172
N.E.2d 694, quoting Knowles v. Iowa (1998), 525 U.S. 113, 117-118, 119 S. Ct. 484, 142
L. Ed. 2d 492 (stating that “officers who conduct ‘routine traffic stops’ may ‘perform a patdown of
a driver and any passengers upon reasonable suspicion that they may be armed and dangerous’”);
Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331. The purpose of this
patdown search is not to discover evidence of a crime, but only to search for weapons that may
be used to harm the officer during the course of the traffic stop. See State v. Evans (1993), 67
Ohio St. 3d 405, 408, 618 N.E.2d 162, quoting Adams v. Williams (1972), 407 U.S. 143, 146, 92
ROSS 10CA3182 8
S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (stating that the purpose of a Terry “‘search is not to discover
evidence of a crime, but to allow the officer to pursue his investigation without fear of
violence’”). A patdown search is limited in scope to discovering weapons that might be used to
harm the officer “and cannot be employed by the searching officer to search for evidence of a
crime.” Evans, 67 Ohio St. 3d at 414. Thus, a patdown search must “be confined in scope to an
intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the
assault of the police officer.” Terry, 392 U.S. at 29. When a patdown search exceeds the
determination of whether the suspect is armed, it is not valid under Terry and its progeny, and its
fruits will be suppressed. Id.
{¶ 19} The Ohio Supreme Court has recognized that “[t]he right to frisk is virtually
automatic when individuals are suspected of committing a crime, like drug trafficking, for which
they are likely to be armed.” Evans, 67 Ohio St. 3d at 413, citing State v. Williams (1990), 51
Ohio St. 3d 58, 554 N.E.2d 108, and United States v. Ceballos (E.D.N.Y.1989), 719 F. Supp. 119,
126 (“The nature of narcotics trafficking today reasonably warrants the conclusion that a
suspected dealer may be armed and dangerous.”); State v. Abernathy, Scioto App. No.
07CA3160, 2008-Ohio-2949, ¶37; see, also, State v. Thompson, Hamilton App. No. C-050400,
2006-Ohio-4285, ¶11 (stating that “[t]he very nexus between drugs and guns can create a
reasonable suspicion of danger to the officer” and “[w]hen investigating drug activity, officers
have a legitimate concern for their own safety, and that concern can justify a pat-down search for
weapons”).
{¶ 20} In the case sub judice, the officer stopped the vehicle for a traffic violation and
had received information from narcotics detectives that the occupants were suspected of carrying
ROSS 10CA3182 9
drugs in the vehicle. Thus, the officer’s right to frisk would have been virtually automatic.
However, the officer did not attempt to justify his actions as a “frisk,” or a patdown search for
weapons. Rather, the officer candidly admitted that he was not simply “frisking” for weapons.
We have previously found that an officer’s statement regarding his intent in conducting a search
carries great weight in determining whether a search was a weapons patdown search or a
full-scale search. See State v. Kennedy (Sept. 30, 1999), Ross App. No. 99CA2472, fn.8, citing
State v. White (1996), 110 Ohio App. 3d 347, 355, 674 N.E.2d 405 (noting that search not
justified under patdown exception when officers expressly testified that they were frisking the
suspect to discover contraband “which is clearly not permitted on a Terry pat-down”); see, also,
State v. Taylor, Cuyahoga App. No. 94853, 2011-Ohio-1554, ¶26-27 (concluding that search not
justified as a patdown for weapons when officer testified, “We’re patting her down for–I’m
patting her down for anything, anything possible”). Because the officer plainly testified in the
case sub judice that he searched for evidence and not a weapon, we must reject the appellee’s
attempt to justify the officer’s conduct as a limited patdown search for weapons. As such, for
the officer’s conduct to pass constitutional muster, the facts must establish that he possessed
probable cause to search appellant and that an exception to the warrant requirement applies. See
State v. Moore (2000), 90 Ohio St. 3d 47, 49, 734 N.E.2d 804.
D
PROBABLE CAUSE EXCEPTION
{¶ 21} A search conducted without a warrant is reasonable under the Fourth Amendment
if: (1) probable cause exists to conduct the search; and (2) an exception to the warrant
requirement applies. See Katz v. United States (1967), 389 U.S. 347, 357, 88 S. Ct. 507, 19
ROSS 10CA3182 10
L. Ed. 2d 576; Moore, 90 Ohio St. 3d at 49. If the prosecution fails to show either the existence of
probable cause or that an exception to the warrant requirement applies, then the search is
unreasonable and the court must suppress the unlawfully obtained evidence. See Moore, 90
Ohio St. 3d at 49, citing Mapp v. Ohio (1961), 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, and
AL Post 763 v. Ohio Liquor Control Comm. (1998), 82 Ohio St. 3d 108, 111, 694 N.E.2d 905,
908.
E
PROBABLE CAUSE DEFINED
{¶ 22} “‘Probable cause exists if the facts and circumstances known to the officer
warrant a prudent man in believing that [an] offense has been committed.’ Henry v. United
States (1959), 361 U.S. 98, 102, 80 S. Ct. 168, 4 L. Ed. 2d 134. ‘Probable cause does not require
the same type of specific evidence of each element of the offense as would be needed to support
a conviction.’ Adams v. Williams (1972), 407 U.S. 143, 149, 92 S. Ct. 1921, 32 L. Ed. 2d 612.”
State v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶73. Rather, “probable
cause is a fluid concept-turning on the assessment of probabilities in particular factual
contexts-not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates
(1983), 462 U.S. 213, 231, 103 S. Ct. 2317. Probable cause requires “‘only the probability, and
not a prima facie showing, of criminal activity.’” Gates, 462 U.S. at 235, quoting Spinelli v.
United States (1969), 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637. As the court explained
in Gates:
“‘The process does not deal with hard certainties, but with probabilities.
Long before the law of probabilities was articulated as such, practical people
formulated certain common-sense conclusions about human behavior; jurors as
ROSS 10CA3182 11
factfinders are permitted to do the same-and so are law enforcement officers.
Finally, the evidence thus collected must be seen and weighed not in terms of
library analysis by scholars, but as understood by those versed in the field of law
enforcement.’”
Id. at 231-232, quoting United States v. Cortez (1981), 449 U.S. 411, 418, 101 S. Ct. 690, 66
L. Ed. 2d 621.
{¶ 23} In determining whether a law enforcement officer possessed probable cause to
conduct a search, a court must review the totality of the circumstances known to the officer at the
time of the search. Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142.
“Probable cause must be based upon objective facts that would justify the issuance of a warrant
by a magistrate.” Moore, 90 Ohio St. 3d at 49, citing State v. Welch (1985), 18 Ohio St. 3d 88,
92, 18 OBR 124, 127, 480 N.E.2d 384. Thus, the officer must possess sufficient facts from a
reasonably trustworthy source that a search will uncover evidence of a crime. See State v. Hill
(May 15, 1991), Jackson App. No. 632; Beck, 379 U.S. at 91; see, also, State v. Williams, Ross
App. No. 10CA3162, 2011-Ohio-763.
{¶ 24} In the case at bar, the trial court determined, and the appellee asserts, that the
dog’s alert on the location of the vehicle close to appellant's position in the vehicle provided the
officer with probable cause to search appellant. We, however, find it unnecessary to determine
whether a dog’s alert, by itself, could establish probable cause to search a person seated in a
vehicle. We observe that we have previously indicated that although a dog’s alert on a vehicle
with a defendant seated in it may be a relevant factor in the probable cause analysis, “this factor
alone is insufficient to constitute probable cause to search [the] person.”3 State v. Jones,
3
We question whether the Ohio Supreme Court would agree with
ROSS 10CA3182 12
Washington App. No. 03CA61, 2004-Ohio-7280, ¶43. Instead, rather than focus on one single
factor, such as the dog alert, we find that under the totality of the circumstances the officer in the
case sub judice possessed probable cause to search appellant.
F
TOTALITY OF THE CIRCUMSTANCES
{¶ 25} An officer may derive his knowledge from an informant’s tip. In State v. Walker
(July 28, 1998), Franklin App. No. 97APA09-1219, the court held:
“‘* * * [P]olice have probable cause to conduct a search for contraband
when detailed information provided to them by a confidential but reliable
informant is subsequently corroborated, in some significant combination, with
respect to the name or physical description of a suspect, the location of the illegal
sale, the time of the sale, the description of the automobile driven by the suspect
or the car's license plate numbers.’”
Quoting State v. Colbert (Mar. 7, 1990), Hamilton App. No. C-880471, and citing State v.
Darding (June 3, 1987), Hamilton App. No. C-860514 (search of defendant, which preceded
arrest, did not constitute unlawful search incident to arrest; officers had probable cause based on
tip by informant, who had been reliable in past, which set forth a description of the defendant, his
attire, the female to whom defendant would transfer drugs, the location of the transaction and the
fact that drugs would be found in the front pocket of defendant’s vest).
{¶ 26} Additionally, an officer may rely upon information collectively known to the law
enforcement officers involved in the search or investigation. See State v. Cook (1992), 65 Ohio
this analysis. In Moore, supra, the court held that the smell of
marijuana alone justifies a search of a defendant’s vehicle and of
his person. One could easily infer that a drug dog’s alert on a
vehicle is at least similar, and maybe more precise, to a trained
officer’s smell of marijuana.
ROSS 10CA3182 13
St.3d 516, 521, 605 N.E.2d 70. “An officer need not have knowledge of all of the facts
necessary to justify [a search], as long as the law enforcement body as a whole possesses such
facts and the detaining officer reasonably relies upon those who posses the facts.” Id. Thus, for
example, “[a] radio broadcast may provide the impetus for an investigatory stop, even when the
officer making the stop lacks all of the information justifying the stop.” Id. The Ohio Supreme
Court has therefore described the relevant Fourth Amendment inquiry as “whether the
law-enforcement community as a whole complied with the Fourth Amendment; the entire system
is required to possess facts justifying the stop or arrest, even though the arresting officer does not
have those facts.” Id. (citations omitted). As the court explained in State v. Royster 1998 WL
351413, 3 (Ohio App. 5 Dist.) (Ohio App. 5 Dist.,1998):
“In the case of a common investigation, the knowledge of one officer is
the knowledge of all, and the collective knowledge of all the investigating
officers, and the available objective facts, are the criteria to be used in assessing
probable cause. United States v. Stratton (C.A.1972), 453 Fed.2d 36, 37, cert.
denied, 405 U.S. 1069, 92 S. Ct. 1515, 31 L. Ed. 2d 800. See also, State v. Gough
(1986), 35 Ohio App. 3d 81, 82, 519 N.E.2d 842 (police may rely on collective
knowledge in making arrest); State v. Roach, (1982), 8 Ohio App. 3d 42, 455
N.E.2d 1328 (officer intruding into restroom stall did not have knowledge of
defendant’s conduct, but police department as a whole had probable cause).”
See, also, State v. Pettry (Aug. 9, 1990), Jackson App. Nos. 617 & 618.
{¶ 27} In the case at bar, we agree with the trial court’s conclusion that the totality of the
circumstances demonstrate that Officer Campbell possessed probable cause to search appellant.
The information that the narcotics detectives received from the confidential informants proved
reliable.4 The narcotics detectives relayed to Officer Campbell their general knowledge that
4
Because appellant does not raise any significant argument regarding the CIs’ reliability and whether the combined
circumstances, including the information provided in the search warrant affidavit, amounted to probable cause, we do not
ROSS 10CA3182 14
drugs were suspected to be in the vehicle. Officer Campbell knew that the dog had alerted on
the passenger side of the vehicle, where appellant was seated. Officer Campbell’s own
observations further heightened his suspicion that drugs would be located on appellant’s person.
He noticed toilet paper sticking out from appellant’s pants, when coupled with the remaining
facts and circumstances that included appellant’s stiff walking and nervous behavior and the
observation that appellant’s companion also had toilet paper sticking out of his pants, the
suspicion that appellant was attempting to hide something illicit was certainly a distinct
probability. The investigatory team, as a whole, and, consequently, Officer Campbell, possessed
sufficient facts to warrant a reasonable person to believe that drugs would likely be located on
appellant’s person. Cf. State v. Jones (May 7, 1999), Sandusky App. No. S-98-033 (“The
detective had probable cause to believe that contraband was concealed in the black leather tote
bag based on the confidential informant’s information. The detective testified that he received
numerous tips from a reliable informant that appellant had been selling a lot of crack cocaine;
that appellant kept the drugs in a black leather tote bag; that appellant was at a given residence at
a specific time with such drugs; that appellant would not be at the residence long; and that this
informant had provided much past reliable information. A few minutes later, appellant, who
was known to the detective, was seen by the detective in a vehicle matching the description given
to the detective at the predescribed location. Upon stopping and approaching the automobile,
the detective noticed appellant move his hand toward an object. Once the detective ordered
appellant to remove his hand, the detective saw the black leather tote bag. The totality of these
dwell on the issue.
ROSS 10CA3182 15
facts and circumstances clearly established probable cause for the warrantless search of the black
leather tote bag.”); State v. Walker (July 28, 1998), Franklin App. No. 97APA09-1219 (“Upon
review, we find that the confidential informant’s tip, which, as noted above, included the name
and description of the defendant, the location and time of the arranged transaction, a description
of the defendant's vehicle, as well as the informant’s subsequent allegation at the scene that he
observed defendant in possession of cocaine, furnished the police with probable cause.
However, assuming that the officers did not have probable cause to proceed based on this
information alone, we find that the subsequent actions of the narcotics detention dog alerting to
the presence of drugs on the driver’s seat of the vehicle, in conjunction with the informant’s tip,
provided officers with probable cause to arrest"), citing United States v. Klinginsmith (C.A.10,
1994), 25 F.3d 1507, 1510 (dog alerting to vehicle provided probable cause to arrest occupants);
United States v. Diaz (C.A.6, 1994), 25 F.3d 392, 393-394 (“A positive indication by a
properly-trained dog is sufficient to establish probable cause for the presence of a controlled
substance”); United States v. Levine (C.A.5, 1996), 80 F.3d 129, 133 (evidence of dog alerting
for narcotics, alone, is sufficient to support probable cause for a warrantless arrest). Therefore,
in light of the foregoing we believe that Officer Campbell possessed probable cause to search
appellant’s person. Next, we must consider whether an exception to the warrant requirement
applies.
G
EXCEPTION TO SEARCH WARRANT REQUIREMENT
{¶ 28} The overriding function of the Fourth Amendment is to “‘protect personal privacy
and dignity against unwarranted intrusion by the State.’” Moore, 90 Ohio St. 3d at 52, quoting
ROSS 10CA3182 16
Schmerber v. California (1966), 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908. Thus,
ordinarily, “‘compelling reasons’” or “‘exceptional circumstances’” must exist to justify an
intrusion without a warrant. Id., quoting McDonald v. United States (1948), 335 U.S. 451, 454,
69 S. Ct. 191, 93 L. Ed. 153.
{¶ 29} A warrantless search is justified when an imminent danger exists that evidence
will be lost or destroyed if a search is not immediately conducted. Id., citing Cupp v. Murphy
(1973), 412 U.S. 291, 294-296, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (exigent circumstances justified a
warrantless search of fingernails for skin, blood cells, and fabric when officers feared evidence
would be destroyed); Schmerber v. California, 384 U.S. at 769-771, 86 S.Ct. at 1835-1836, 16
L. Ed. 2d at 919-920 (exigent circumstances justified the warrantless seizure of a blood sample for
alcohol level that would be destroyed through dissipation); Ker v. California (1963), 374 U.S. 23,
41-42, 83 S. Ct. 1623, 1634, 10 L. Ed. 2d 726, 743 (exigent circumstances justified the warrantless
search of an apartment for drugs when officers feared destruction of evidence). “Because
marijuana and other narcotics are easily and quickly hidden or destroyed, a warrantless search
may be justified to preserve evidence.” Moore, 90 Ohio St. 3d at 52 (citations omitted).
{¶ 30} In the case at bar, Officer Campbell was justified in performing a warrantless
search in order to preserve evidence. Appellant obviously was attempting to conceal something
and the officers had ample, reliable information that appellant had illegal drugs. The reasonable
inference is that appellant was attempting to hide drugs. If the officer had not immediately
searched him, the danger of further attempts at detection or destruction of evidence existed. See,
e.g., State v. Christopher, Clermont App. No. CA2009-08-04, 2010-Ohio-1816, ¶36 appeals not
allowed 126 Ohio St. 3d 1583, 934 N.E.2d 355, 2010-Ohio-4542 and State v. Burnell, Hamilton
ROSS 10CA3182 17
App. No. C-040386, 2005-Ohio-1323, ¶26 (exigent circumstances exception to warrant
requirement supported the warrantless search of a suspect's mouth, in which the suspect
concealed a balloon that contained heroine, in order to prevent the imminent destruction of
evidence. Thus, exigent circumstances existed that justified the warrantless search.
{¶ 31} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
ROSS 10CA3182 18
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.