Opinion
No. 78-736
Decided May 18, 1979.
Criminal law — Arrest for traffic violation — Search of arrestee for weapons and contraband — Applicable law.
APPEAL from the Court of Appeals for Hamilton County.
This cause involves an appeal from a judgment of the Court of Appeals overruling the state's motion for leave to appeal from the trial court's prior order suppressing evidence in the criminal trial of appellee, Joseph T. Ferman, for drug abuse.
The undisputed facts, in brief, which gave rise to the original criminal charges against the appellee, the motion to suppress, and the appeal, are as follows. On November 15, 1977, the appellee was observed by a police officer to be speeding while driving on a thoroughfare in Cincinnati. As the officer pursued the automobile, he observed appellee commit another traffic violation.
After stopping the automobile, the officer spoke to appellee, and it was determined by the officer that appellee was intoxicated. Officer Biddle then placed appellee under arrest for driving while intoxicated. At the scene, and prior to taking appellee to the station, the officer patted down appellee to determine if he had any weapon or contraband on his person.
A glassine bag of cocaine was found and removed from appellee's shirt pocket, and a vial of cocaine was removed from his pants pocket. A number of pills of various kinds and some drug paraphernalia were also recovered.
Appellee was subsequently charged with drug abuse. Prior to trial, a motion to suppress the contraband was filed and argued before the trial court. Appellee's position was that the arresting officer had no right to extend his search beyond an initial pat down for discovery of weapons, and that here the officer had made an additional investigation of the pockets of appellee before finding the contraband.
The trial court found that Officer Biddle had made a valid custodial arrest of the appellee. However, the judge felt that the search was improper and should have been conducted at the station instead of at the scene of the arrest. The trial court placed on record an entry granting the motion to suppress and containing the following language:
"* * * the Court having heard the testimony of the witnesses does hereby find:
"1. That the Cincinnati Police Officers made a lawful custodial arrest of the defendant in this case.
"2. That a police officer has a right to make a search of a person placed under a custodial arrest at the scene for the limited purpose to find something which might be used as a dangerous weapon as against the police officer.
"3. That the search in question was well beyond the scope of the police officer's authority to look for weapons."
The state filed a motion for leave to appeal pursuant to State v. Hughes (1975), 41 Ohio St.2d 208, and State v. Wallace (1975), 43 Ohio St.2d 1, which cases had effectively invalidated Crim. R. 12(J), as it pertained to the state's right to appeal suppression orders.
On April 25, 1978, the Court of Appeals overruled the state's motion for leave to appeal, stating no reason therefor. Thereafter, the Court of Appeals overruled a motion for reconsideration.
The cause is now before this court upon the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. William E. Breyer and Mr. Claude N. Crowe, for appellant.
Messrs. Gould, Reichert Strauss, Mr. Thomas M. Gould, Rubenstein Rubenstein Co., L.P.A., and Mr. Jack C. Rubenstein, for appellee.
We must reverse the Court of Appeals. At the time this matter was before it, the Court of Appeals did have the discretion, based upon the facts presented in a given cause, to grant or to deny the motion by the state for leave to appeal the trial court's order granting the motion to suppress. State v. Hughes and State v. Wallace, supra. However, such discretion would have had to be exercised in accordance with other pertinent principles of law then in effect.
The pertinent law relating to the authority of a police officer to search a person under custodial arrest had been determined in prior cases both by the United States Supreme Court and this court. In United States v. Robinson (1973), 414 U.S. 218, and Gustafson v. Florida (1973), 414 U.S. 260, each of the defendants had been stopped for traffic violations and had been placed under custodial arrest. In both instances the defendant had been searched at the scene, and drug-related contraband was recovered by the arresting officer. In both cases the United States Supreme Court upheld the search as being a "reasonable" search under the Fourth Amendment.
Robinson held that a search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons as the arresting officer may, as a result of such frisk, reasonably believe and ascertain that the suspect has in his possession, and the absence of probable fruits or further evidence of particular crime for which the arrest is made does not narrow the standards applicable to such a search. ( Terry v. Ohio, 392 U.S. 1, distinguished.)
The Gustafson court, citing Robinson, held that the full search of the person of the suspect made incident to a lawful custodial arrest did not violate the Fourth and Fourteenth Amendments, and held further that it is of no constitutional significance that, contrary to the situation in Robinson, police regulations did not require that petitioner be taken into custody or establish the conditions under which a full-scale body search should be conducted, nor, as in Robinson, is it relevant that the arresting officer had no subjective fear of petitioner or suspicion that he was armed, since it is the fact of custodial arrest that gives rise to the authority to search.
These two cases determined by the United States Supreme Court make it clear that where a person is placed under custodial arrest for a traffic violation, that person may be subjected to a full search for weapons and contraband. This court has reached the same conclusion. In State v. Mathews (1976), 46 Ohio St.2d 72, 74, this court stated as follows:
"More recently, in United States v. Robinson (1973), 414 U.S. 218, the court expanded the limitations set forth in Chimel [v. California (1969), 395 U.S. 752]. The majority held that a full search of the person incident to a lawful custodial arrest is not only an exception to the warrant requirement of the Fourth Amendment but is also a `reasonable' search under that amendment."
Therefore, under the appropriate state of facts in accordance with the above-quoted federal and state cases, a person who is placed under custodial arrest may be searched at the scene for weapons as well as contraband.
In this case, the trial court found that the officer involved had made a valid custodial arrest of appellee, but then proceeded to pronounce the improper conclusion of law to the effect that such arresting officer "has a right to make a search of a person placed under a custodial arrest at the scene for a limited purpose to find something which might be used as a dangerous weapon as against the police officer."
This conclusion of law which formed the basis upon which the trial court granted the motion to suppress, unduly limited the breadth of search as authorized under Robinson, Gustafson and State v. Matthews, supra.
Since State v. Hughes and State v. Wallace, supra, the General Assembly has by way of R.C. 2945.67, effective November 1, 1978, granted the state the right of appeal in matters involving the suppression of evidence, and the current issue will not be before us again. However, even prior to the act granting the state the right to appeal, it would have been necessary for the Courts of Appeals to apply the correct legal principles in determining the state's motion for leave to appeal.
Here, the appropriate law was not considered by the Court of Appeals, or at least no specific law was referred to by that court in its entry overruling the state's motion.
Therefore, based upon the foregoing, the judgment of the Court of Appeals is hereby reversed, and this matter is remanded to that court for further proceedings.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.