Opinion
No. 69-494
Decided May 13, 1970.
Criminal procedure — Search and seizure of automobile without warrant — Incidental to lawful arrest — Not practical to secure warrant before arrest — Search not conducted in unreasonable manner — Evidence obtained admissible.
APPEAL from the Court of Appeals for Cuyahoga County.
Emmett Madgett, Frederico Rivera and Charles Peterson were passengers in a car being operated by Antonio Morales when the car was stopped by the police and the driver arrested for speeding at approximately 11:00 a.m. on August 11, 1967, on state Route No. 21, in the city of Independence. The driver was directed to follow the police vehicle into an area off the roadway, where Morales presented a New York driver's license and Emmett Madgett produced a registration certificate which showed that the car belonged to one Wilbert Madgett, who was not a passenger in the car. The arresting officer checked the address listed on the registration with Cleveland police officers, who had arrived at the scene to offer assistance, and it was discovered that the registration certificate contained a non-existent address.
Prior to this discovery, Morales had stated that he did not know the passengers in the car, that they had picked him up in New York and that he was returning to Ohio to see his sister. The arresting officer had also learned that none of the passengers had a permanent or regular driver's license.
After checking the registration, the officer returned to the car and requested that Morales follow him to the police station to post a $25 bond because he was from out-of-state and was operating a vehicle with a faulty registration certificate. A traffic citation was issued to Morales for speeding.
At the trial, the arresting officer testified that he informed the passengers that they were free to go and that public transportation was available if they desired to leave the police station. The patrolman testified further that the four men, together, did not have the $25 necessary to post bond, and that the men wanted to take the car in an effort to obtain the money. The officer, because of the problem with the registration, informed them that the car would have to stay in police custody until the registration was verified. Thereupon, the men changed their story and Morales told the officer that he and Rivera had met Peterson and Madgett on East 79th Street and that they had all decided to go for a ride in the car to try it out. When questioned about where they had gone, the men responded that they did not know where they had gone, that they had "just gone for a ride."
The men then made a telephone call to Wilbert Madgett, who informed the men and a police officer that he would be out to the station to verify the registration and get the car. A search of the car was conducted following this statement by the owner.
The arresting officer testified that the men were persistent in their efforts to get the car released:
Q. "And it was their persistence only and nothing else that caused you to believe there was some contraband there, is that correct?"
A. "No, sir. It was also the fact they had gone to the restroom and the first thing they done was took a drink of water or turned the faucet on in the restroom; and after the second gentleman done this, I suspected, again as a trained police officer, that they may have had drugs or something on them and had gotten rid of it in some manner."
After the incidents in the restroom, a record check of the four men was made, which revealed Rivera and Morales were out on bond from Cleveland on a charge of breaking and entering, and that Emmett Madgett was out on parole and was known to use narcotics.
On cross-examination, Patrolman Ehlert testified:
"Q. When you learned that these men had records, then, what, if anything, did you yourself do?
"A. Based on the conversation I had with the four men and the subsequent events which led up to this particular time, such as the bathroom incident and their records, the persistence upon getting the car released or wanting to get the car out of there, this seemed to be their main objective, it was not —
"Mr. Herzbrun: I object to their main objective.
"The Court: Yes, sustained.
"Q. Yes. Go on, continue.
"A. Based on all these facts, I went out and checked the car.
"Q. Now, did you tell them that you were going out to check the car?
"A. I did.
"Q. And what did you say?
"A. I told them I was going out to check over their car and asked them if they had any valuables in the car.
"Q. Did they say anything?
"A. They said they had nothing in the car and there was no use in going out there.
"Q. There was no use in going out there?
"A. That's right.
"Q. Do you recall who the particular individual was that said that?
"A. I believe it was the general consensus of all of them in the general course of the conversation.
"Mr. Herzbrun: Objection.
"Q. Did you observe their actions and demeanor, and so forth, at the time you told them you were going out to check the car?
"A. Would you repeat the question?
"Q. Did you observe their actions, their demeanor, and so forth, how they acted and what they did, if they did anything, when you told them you were going out to check the car?
"A. They seemed nervous."
The car was searched and on the floor, under the front edge of the rear seat on the right side, a loaded pistol and 86 packets of heroin were found. The car was searched at about 11:35 a.m., approximately 35 minutes after the initial arrest and within 15 minutes of the owner's statement that he would "be out" to get his automobile.
After the search, the men were arrested and indicted for possession of a concealed weapon and possession of narcotics. A pretrial motion to suppress the evidence discovered in the car was overruled. All objections to the introduction of this evidence at the trial were also overruled. The jury found the men guilty of possession of narcotics, but not guilty of possession of a concealed weapon.
The Court of Appeals for Cuyahoga County affirmed the judgment of conviction and the cause is now before this court pursuant to the allowance of a motion for leave to appeal by Madgett, Rivera and Morales.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Albin Lipold, for appellee.
Mr. Bruce Herzbrun, for appellants.
Appellants argue that the trial court erred in overruling their motion to suppress because the search of the car at the police station was not incidental to a lawful arrest. There is no dispute that the arrest of Morales was lawful. Appellants argue that the search of the car without a warrant was violative of the Fourth and Fourteenth Amendments to the United States Constitution because it was not incident to and contemporaneous with the arrest.
While the rule announced in Preston v. United States (1964), 376 U.S. 364, 11 L. Ed. 2d 777, may be in doubt (see Cooper v. California, 386 U.S. 58, 17 L. Ed. 2d 730), and it is tempting to characterize the search of the car as incidental to a lawful arrest (see People v. Webb, 66 Cal.2d 107, 424 P.2d 342, and cases collected in 19 A.L.R. 3d 727, 743-776), we need not decide that question. Cf. State v. Bernius (1964), 177 Ohio St. 155, 203 N.E.2d 241.
In Chimel v. California (1969), 23 L. Ed. 2d 685, the United States Supreme Court attempted to define the area of a permissible warrantless search when the search is incidental to a lawful arrest. In doing so, the court placed in doubt the status and rationale of its prior decisions in Harris v. United States (1947), 331 U.S. 145, 91 L. Ed. 1399, and United States v. Rabinowitz (1950), 339 U.S. 56, 94 L. Ed. 653. Nevertheless, the court, in footnote nine of the Chimel opinion, recognized that:
"Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants `where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' * * *" (Citing Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, and Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879.)
In the case at bar, the record clearly shows that the officer, when searching the car, was acting upon more than mere suspicion. Given the facts known to the officer and the totality of circumstances prior to the search, there existed probable cause to conduct the search. Moreover, the record indicates that it was not practicable to secure a warrant because the vehicle could have been removed from the custody of the police as soon as Wilbert Madgett arrived at the police station and was able to clarify the question of the erroneous address on the registration.
Nothing in the record indicates that the search was conducted in an unreasonable manner.
Under the facts of this case, the search of the car without a warrant fully meets the test of reasonableness under the Fourth Amendment, rendering the evidence obtained by the search of the car admissible at the trial of appellants. Chimel v. California, supra, footnote nine; Carroll v. United States, supra; Brinegar v. United States, supra.
For the reasons stated, the judgment appealed from is affirmed.
Judgment affirmed.
O'NEILL, C.J., LEACH, SCHNEIDER, HERBERT and CORRIGAN, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
DUNCAN, J., dissents.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.