Summary
finding probable cause where officers received numerous tips from informants, specific information from FBI that defendant would arrive in Cleveland to purchase a specified amount of cocaine at a given place and time and when officers stopped and approached vehicle, defendant took packages from clothing and threw to vehicle floor
Summary of this case from Pier v. StateOpinion
No. 84-1127
Decided July 3, 1985.
Criminal law — Search and seizure — Warrantless search of motor vehicle based on probable cause — Extends to entire vehicle and contents.
O.Jur 3d Criminal Law § 509.
Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages, that may logically conceal the object of the search. ( United States v. Ross, 456 U.S. 798, followed.)
APPEAL from the Court of Appeals for Cuyahoga County.
The facts in essence which give rise to this appeal by the state of Ohio are as follows. Philip Smith, an officer of the Cleveland Police Department Narcotics Unit, was told by several unidentified informants that one Martin L. Welch, an appellee herein, was a major illegal narcotic dealer from Michigan. From the record it appears that Officer Smith, on August 30, 1982, received a telephone call from an agent of the FBI named Robert F. Cannole who stated that Welch was coming to Cleveland that evening from Michigan and would arrive at the westside Marriott Inn around 10:00 p.m. During their conversation, Agent Cannole described the facial and physical features of Welch and told Officer Smith that the purpose of Welch's trip was to buy one-quarter pound of cocaine. Cannole also stated that Welch would be carrying twenty thousand "hits" of lysergic acid diethylamide ("LSD"). Smith thereafter arranged to meet Cannole at the Marriott.
At 10:00 p.m. that evening, Officer Smith arrived at the Marriott and met with an informant who allegedly corroborated the information given by Agent Cannole. Based on this information, members of the Cleveland Police Department conducted a stake-out of the hotel and, at approximately 11:28 the night of August 30, they noted the arrival of a 1973 Buick with Michigan license plates carrying three white males, one of whom matched the description of Welch. The police observed that individual get out of the vehicle, enter the hotel lounge, and proceed down a corridor. He was next seen approximately twenty minutes later leaving the premises and getting back into the same Buick automobile in which he arrived.
Acting without a warrant, the police officers blocked the car's departure, approached it with guns drawn, and Officer Smith demanded that the occupants put their hands where he could see them. It appears at this point that Welch removed a brown paper bag from his overalls and threw it on the floor of the automobile. Officer Smith reached inside the automobile and removed the bag. The occupants were subsequently ordered out of the vehicle. Upon a search of the bag's contents, Smith believed that it contained cocaine, and it was later found to be such.
The officers then placed the occupants of the vehicle under arrest and made a search of the entire automobile which was designated by the officers as an inventory search. A search of the trunk located two plastic bags contained in a leather traveling bag belonging to Robert Patterson, the other appellee herein. The bags' contents were subsequently analyzed and determined to contain some eight thousand "hits" of LSD.
Both appellees were charged with two counts of possession of drugs (cocaine and LSD) and one count of possession of criminal tools. A pretrial hearing was held on January 4, 1983 upon appellees' motion to suppress the fruits of the warrantless search of the automobile. Officer Smith testified and adduced all of the foregoing facts in support of the state's claim of probable cause for the arrest as well as the subsequent search and seizure. The trial judge overruled the motion to suppress. A trial followed which resulted in a hung jury as to all counts against appellees, except for a not guilty verdict on the charge of possession of cocaine against Patterson.
Following the mistrial, a second pretrial suppression hearing was sought by appellees, but denied by the trial court. Upon retrial on the merits, Welch was found guilty of possession of cocaine, a violation of R.C. 2925.03. Patterson was found guilty of possession of LSD in violation of the same statutory provision. Both Welch and Patterson were also found guilty of possession of criminal tools in violation of R.C. 2923.24.
In a split decision, the Court of Appeals for Cuyahoga County reversed the appellees' convictions holding, as it viewed the issues presented, that the police lacked probable cause to arrest appellees and therefore had no lawful basis to conduct the warrantless search incidental to those arrests. A majority of the court ruled that there was a lack of probable cause upon the standards applicable to a warrant issued under the Fourth Amendment, as established by the United States Supreme Court in Aguilar v. Texas (1964), 378 U.S. 108, and Spinelli v. United States (1969), 393 U.S. 410. We note, however, that the instant case involved the warrantless search of an automobile.
Although the court of appeals framed the issue on the basis that there was an unlawful arrest and subsequent search, the facts, however, sequentially show that the automobile was stopped and the paper bag containing the cocaine was taken from the auto by a narcotics officer. At this point the occupants were arrested, and the additional search of the vehicle took place. This sequence of events would present two issues: the first being whether the initial search and seizure of the paper bag containing the cocaine, and any further search of the automobile, was based upon probable cause; and the second issue being whether the expanded search of the vehicle could be validated in that it was incidental to the arrest. Here, we are particularly interested in the first issue and a discussion of the appropriate standards to be applied when reviewing probable cause for a warrantless search where no arrest had yet been made.
It should also be noted that we are not confronted with the question of whether the officers' detention of the automobile constitutes a brief " Terry stop" as validated in Terry v. Ohio (1968), 392 U.S. 1 [44 O.O.2d 383]. See, also, United States v. Sharpe (1985), 470 U.S. ___, 84 L. Ed. 2d 605.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
John T. Corrigan, prosecuting attorney, Richard J. Hartman and George J. Sadd, for appellant.
James R. Willis, for appellees.
The court of appeals below stated that it was guided by the application of the "two pronged" knowledge and veracity test as developed by the United States Supreme Court in the Aguilar and Spinelli cases in its determination that probable cause did not exist for the warrantless search herein. Applying the law as it was perceived, the court held that the arrest and subsequent search were improper in that the state failed to establish the basis of the informants' knowledge or their credibility. It must be pointed out that our nation's highest court specifically abandoned the two pronged test in Illinois v. Gates (1983), ___ U.S. ___, 76 L. Ed. 2d 527, and supplanted in its stead a "totality of the circumstances" test when determining probable cause for the issuance of a warrant. See, also, Masachusetts v. Upton (1984), ___ U.S. ___, 80 L. Ed. 2d 721. However, we do not address the Gates opinion as this case more closely presents an issue concerning the automobile exception to the Fourth Amendment.
It is essential at the outset to emphasize that the facts in the present case establish that neither an arrest nor search warrant was obtained by the officers. The warrantless search and subsequent arrests were carried out by officers who had received certain information from allegedly reliable informants which had been followed up by independent observation of the suspects' movements and, importantly for purposes of our discussion, the search was of a vehicle that had been stopped for investigation of transporting reported contraband.
Simply stated, this is a warrantless automobile search case and, as such, is to be determined upon the basis of Carroll v. United States (1925), 267 U.S. 132, and its progeny.
The cardinal principle of the Fourth Amendment is 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." Katz v. United States (1967), 389 U.S. 347, 357.
One of the well-delineated exceptions to the Fourth Amendment mandates was established in Carroll, supra, wherein the court pronounced the so-called automobile exception to the warrant requirement. The Carroll case involved a warrantless search of an auto for "bootleg" whiskey during the prohibition era. After a thorough explanation as to the basis for the exception, the court held that a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment.
Writing for a majority of the court, Chief Justice Taft stated at 153:
"* * * [T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, 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."
In essence, the above-quoted language enunciated the general policy statement that citizens have a lesser expectation of privacy in their vehicles than in private dwellings, and have no degree of privacy when carrying contraband in such vehicles.
In the progeny to Carroll, the court has continued to emphasize the importance that officers have probable cause to believe that the vehicle which they search contains contraband. The court has repeatedly stated that probable cause must be based on objective facts that could justify the issuance of a warrant by a magistrate.
See Chambers v. Maroney (1970), 399 U.S. 42; Cady v. Dombrowski (1973), 413 U.S. 433; Texas v. White (1975), 423 U.S. 67; and South Dakota v. Opperman (1976), 428 U.S. 364.
The automobile exception was again reviewed, and expanded, by the United States Supreme Court in the case of United States v. Ross (1982), 456 U.S. 798, which held that where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages, that may logically conceal the object of the search. The court stated that if any other conclusion would be reached, then the practical consequences of the Carroll decision would be largely nullified, as the permissible scope of a warrantless search of an automobile would not include containers and packages found therein. Id. at 820.
In clarifying the lawful breadth of a warrantless search of an automobile, the court utilized an interesting comparison between such a search and a lawful search of a home:
"A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. [Footnote omitted.] Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle. that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand. [Footnote omitted]." Ross, supra, at 820-821.
Furthermore, in Ross, supra, the court specifically noted that it was not overruling the law set forth in United States v. Chadwick (1977), 433 U.S. 1, and Arkansas v. Sanders (1979), 442 U.S. 753. In those cases it was held that police officers had impermissibly carried out warrantless searches of a footlocker in the trunk of a defendant's automobile in Chadwick, and a green suitcase in the trunk of a taxi in Sanders. The Ross court, however, differentiated these prior cases upon the basis that the "automobile exception" was not applicable, in that the suspected contraband had been reported to be specifically within the aforestated containers, rather than a more generalized tip that the contraband would be transported somewhere within the automobile. Therefore, under those circumstances, it was the duty of the police to obtain a search warrant before opening the footlocker and traveling bag.
We also note that the holding in Ross has been approved and followed by the court in United States v. Johns (1985), 467 U.S. ___, 83 L. Ed. 2d 890, which held that the lawful warrantless search of a vehicle reported to be carrying contraband extended to an additional warrantless search of packages removed from such vehicle several days later. And, finally, the automobile exception was, most recently, held to include a motor home in a public place. California v. Carney (1985), 471 U.S. ___, 85 L. Ed. 2d 406.
Applying the law of Carroll and its progeny to the facts of this case, it is readily discernible that the arresting officers had sufficient probable cause to make the warrantless search of the vehicle. Officer Smith testified that he received numerous tips from informants that appellee Welch was a major dealer in illegal narcotics from Michigan, that an FBI agent informed him that Welch would arrive in Cleveland to purchase one-quarter pound of cocaine, that Welch would be at a given place at a specific time to procure such drugs, that Welch would be transporting twenty thousand "hits" of LSD, and that an additional informant verified much of the information that the officer possessed. Later, a man matching the description given to Smith arrived at the predescribed location in an automobile with Michigan license plates. Upon stopping and approaching the automobile, Officer Smith noticed the man previously described take a package from his clothing and throw it on the floor of the automobile. The totality of these facts and circumstances, coupled with the personal corroborating observations of the officers, clearly established probable cause for the warrantless search of the entire automobile in question. Ross, supra.
It could reasonably be concluded from the facts that the further search of the vehicle subsequent to the officers' placing appellees under lawful arrest would have been lawful either upon the basis of being incidental to the arrests, or upon the basis of an inventory search.
Therefore, the judgment of the court of appeals is hereby reversed.
Judgment reversed.
CELEBREZZE, C.J., O'NEILL, LOCHER, C. BROWN and DOUGLAS, JJ., concur.
WRIGHT, J., concurs in the syllabus and judgment only.
O'NEILL, J., of the Seventh Appellate District, sitting for SWEENEY, J.