State v. CarterState v. Carter
Dеfendant-appellant, Jack Carter (“appellant”), was indicted by the Grand Jury of Warren County, Ohio, on February 8, 1985. He was charged with receiving stolen рroperty with specification,
On appeal, appellant raises a single assignment of error:
“The trial court erred by denying appellant’s motion to suppress the physical evidence where that evidence was obtained thrоugh illegal methods.”
The testimony at the March 6 suppression hearing disclosed that ap-.„ pellant first came under investigation in this case when a confidential informant notified the police, on January 4, 1985, that he had been at a bar the previous evening and had overheard a conversation between appellant and co-defendant James Adams. According to the testimony of Detective James Malott, a police officer with the city of Mid-dletown, the informant stated that during the conversation appellant and Adams revealed that they were planning an out-of-town burglary for the next day, January 4. Malott further testified that during the afternoon of January 4, appellant and Adams were seen leaving town by an off-duty police officer. Said officer had been involved in prior surveillances of appellant and Adams.
On the basis of this information, the police establishеd surveillances at the residences of appellant and Adams. At approximately 11:50 p.m., the suspects arrived at Adams’ Warren County apartmеnt. As they were getting out of the automobile, they were taken into custody. The automobile, a yellow Toyota, was owned by Adams’ wife.
Appellant and Adams were patted down and advised of their Miranda rights. No incriminating evidеnce was found on their persons. The search of the automobile’s passenger compartment uncovered a road atlas and several items of clothing attributed to Adams. Appellant and Adams were then placed in the back seat of a police cruiser; unbeknownst to them а tape recorder had been placed on the front seat. As *62 noted above, the recorded statements were suppressed at thе March 6 hearing. Thereafter, a warrant was obtained and the search of the automobile’s trunk uncovered that incriminating physical evidencе which appellant seeks to suppress by this appeal.
In support of his assignment of error, appellant contends that he and Adams werе arrested without probable cause and, therefore, the evidence seized in the subsequent search should have been suppressed.
At first blush, the decision of the United State Supreme Court in
Rakas
v.
Illinois
(1978),
The petitioners in
Rakas,
however, did not challenge the initial stop of the vehicle in which they rode, or their removal from it. Two concurring justices and four dissenters found this to be significant. Thus, the decision in
Rakas
presumably does not mean that a mere passеnger automatically lacks standing to challenge the search of a vehicle, even if the search has come about by exploitatiоn of an infringement of his personal Fourth Amendment rights. See
Lewis
v.
State
(Tex. Crim. App. 1984),
At fn. 1 of our recent decision in State v. McClendon (Jan. 14, 1985), Fayette App. No. CA84-06-006, unreported, this court stated:
“In Rakas, supra, the Supreme Court of the United States did nоt hold that those persons who are ‘merely passengers’ in a motor vehicle will never have standing to object to an unreasonable seаrch or seizure. The petitioners in Rakas did not challenge the constitutionality of the police action in stopping the automobile in which they werе riding. This would indicate that a ‘mere passenger’ does have standing to object to police conduct which intrudes upon his Fourth Amendment proteсtion against unreasonable seizure of his person. ‘[Where the] stop is unconstitutional, evidence found as a fruit of the unconstitutional stop may be excluded from evidence.’ United States v. Williams (5th Cir. 1979),589 F.2d 210 , 214, rehearing denied [sic]600 F.2d 18 , [affirmed] on rehearing617 F.2d 1063 ; LaFave & Israel, Criminal Procedure (1984), 725-727, Section 9.1(d).”
Lack of standing thus does not preempt appellant’s suppression argument on this appeal.
Appellаnt, however, loses his argument on the merits. An arrest without a warrant is permitted where there are reasonable grounds to believe that the person to be arrested has committed a felony. Thus, the question becomes one of whether there was probable cause for making the arrest. Sеe
Henry
v.
United States
(1959),
In sum, it is our conclusiоn that the trial court did not err in denying appellant’s motion to suppress the physical evidence. 1 Appellant’s arrest was constitutionally valid in that sufficient probable cause was existent. Further, we need not address the additional issue of whether the search of Adams’ automobile subsequent tо the arrest was valid. Under Rakas, the search of the trunk of Adams’ automobile did not implicate appellant’s Fourth Amendment rights. The assignment of error is without merit and, accordingly, is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
Castle, J., retired, of the Twelfth AppeEate District, was assigned to active duty pursuant to Section 6(C), Article IY, Constitution.
Notes
In his brief to this сourt, appellant seems to make the additional argument that the evidence seized from the trunk of Adams’ automobile is tainted by the unlawful recоrding of his conversation with Adams. According to appellant, the unlawful recording resulted in the search of the trunk. Under the decision of the United States Suрreme Court in
Wong Sun
v.
United States
(1963),
Appellant’s argument in this regard is without merit. A fair reading of the record сlearly indicates that the police would have made the search of the trunk regardless of the tape recording. Simply stated, under the Wong Sun standаrd, the recording was not even a “but for” cause of the subsequent search. The physical evidence to which ap-peEant objects was not obtained by exploitation of an illegality. See Lewis v. State, supra.