State v. CanterState v. Canter
Rendered on September 10, 2009
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City Prosecutor, аnd Orly Ahroni, for appellee.
Lorie L. McCaughan, for appellant.
APPEAL from the Franklin County Municipal Court.
TYACK, J.
{¶1} Steven R. Canter is appealing from his convictions following no contest pleas to drug abuse and possessing drug paraphernalia. He assigns a single error for our consideration:
The trial court erred to the prejudicе of Appellant by denying Appellant‘s Motion to Suppress evidence illegally seized by the Columbus Police Department in violation of the Due Process Clause of the Fourteenth Amendment and comparable provisions of the Ohio Constitution.
{¶3} Canter was a passenger in a motor vehicle which was stopped for a traffic violation. When it was discovered that the driver of the car had no valid license, the police decided to arrest the driver and impound the vehicle. After being ordered out of the car by the police, Canter got out with a small backpack on his back. He was directed to return the backpack to the vehicle, which he did. Later, the backpack was searched and was found to сontain a small amount of marijuana and a set of scales. Canter explained that he carried a digital scale when hе was buying marijuana so he could weigh his purchase to assure himself that he was not being cheated by an unethical drug dealer.
{¶4} The first exception to the warrant requirement presented by these facts is a search incident to a lawful arrest. Clearly, the arrеst of the driver of the car for driving without a valid license was a lawful arrest. The question then becomes whether the search of thе car and its contents was a search incident to the lawful arrest.
{¶5} The United States Supreme Court has recently clarified the lаw in this area. In Arizona v. Gant (2009), ____ U.S. ____, the United States Supreme Court held that the search of Rodney Gant was not incident to a lawful arrest when Gant was handсuffed and locked in the back of a patrol car when his vehicle was searched. Under the circumstances, Gant could not have accessed his car to retrieve weapons or evidence at the time of the search. The United States Suрreme Court also noted that, in the
{¶6} In Canter‘s case, the driver had been arrested, handcuffed, and placed in a police patrol car before the search occurred. If the driver had been alone in the car, no search incident to the driver‘s arrest would be applicable. However, the driver, Canter, and three others, were in the vehicle when the vehicle was stopped. Although the driver could not access his vehicle, Canter and thе other passengers could. The Gant case does not tell us what to do when this additional factor is present. Since the set of facts present in Canter‘s case do 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.
{¶7} That exceptiоn is the so-called automobile exception, flowing from Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280. In the automobile exception, if police have probable cause to believe that a motor vehicle contains evidence of a crime, police can searсh the vehicle before obtaining a search warrant. The exception is based upon the fact that an automobile can readily be driven away before a search warrant can be obtained. If police impound the vehicle while the paperwork to obtain the search warrant is being processed, the intrusion on the individual is worse than if a quick search is conduсted and the driver can be on his or her way, assuming the search produces no incriminating evidence.
{¶8} In Canter‘s case, both police officers involved in the stop and arrests smelled the odor of marijuana smoke coming from the vehicle. The distinctive оdor provided probable cause to believe that marijuana was in the vehicle. The probable
{¶9} The officers chose the less intrusive course of conduct, nаmely, directing Canter to put the backpack back in the car. This chore was reasonable, under the circumstances.
{¶10} Also, having smelled marijuana smoke emanating from the vehicle, the officers did not have to allow the driver or the passengers tо simply walk away carrying an object which could contain marijuana. The officers could take reasonable steps to assure that any marijuana which was in the area stayed in the area.
{¶11} As a result of the above, we overrule the single assignment of error. We, therefore, affirmed the judgment of the Franklin County Municipal Court.
Judgment affirmed.
McGRATH and CONNOR, JJ., concur.
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