We must reverse the Court of Appeals. At the time this matter was before it, the Court of Appеals 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 effеct.
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 thе United States Supreme Court and this court. In United States v. Robinson (1973),
Robinson held that a search incident to a valid arrest is not. limited to a frisk of the suspect’s outer сlothing and-removal of such weapons as the arresting- officer, may, as a result of such frisk, reasonably believe and ascertain
The Gustafson court, citing Robinson/- held that' the full search of the person of the suspect made incident to a lаwful custodial arrest did not violate the Fourth-and Fourteenth Amendments, and held further that it is of ho 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 а 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 arm-t ed, 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 а 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 samé conclusion. In State v. Mathews (1976),
“More recently, in United States v. Robinson (1973),
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 weаpons as well as contraband.
In this ease, the trial court found that the officer involvеd had made a valid custodial arrest of appellee, but then proceedеd to pronounce the improper conclusion of law
This conclusion of law which formed the basis upon which the trial court granted the motion to suppress, unduly limitеd 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 E. C. 2945.67, effectivе November 1, 1978, granted the state tire right of appeal in matters involving the suppression of evidence, and the current issue will not be before us again. However, even prior tо the act granting the state the right to appeal, it would have been necessary fоr the Courts of Appeals to apply the correct legal principles in detеrmining 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.