CITY OF ASHLAND, Plaintiff-Appellee -vs- EVERETTE C. MCCLAIN, Defendant-Appellant
Case No. 12-COA-044
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 6, 2013
2013-Ohio-2436
Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court, Case No. 12-CRB-1047AB; JUDGMENT: Affirmed
For Appellant: THOMAS L. MASON, Mason, Mason & Kearns, Post Office Box 345, 153 West Main Street, Ashland, OH 44805
For Appellee: DAVID R. STIMPERT, Assistant Law Director, Ashland Law Director’s Office, 1213 E. Main Street, Ashland, OH 44805
Baldwin, J.
{¶1} Appellant Everette C. McClain appeals a judgment of the Ashland Municipal Court convicting him of possession of marijuana in violation of
STATEMENT OF FACTS AND CASE
{¶2} On August 31, 2012, appellant and his girlfriend, Penny Brown, drove from their apartment in Shelby, Ohio, to their apartment in Ashland. They went out drinking, and hаd an argument. Brown, who was intoxicated, walked home and fell asleep.
{¶3} Patrolman John Simmons of the Ashland Police Department was working routine patrol during the morning of September 1, 2012. He had been briefed from the midnight shift that officers had responded to a complaint from Penny Brown concerning appellant, and Brown did not want appellant coming bаck to her apartment.
{¶4} At 7:01 a.m., Brown called the police to report that appellant was trying to enter her apartment. Appellant called police shortly after Brown because he wanted his property back from Brown. When police arrived, appellant wanted his clothes and his cell phone charger from Brown’s aрartment. She would not give him his things until he gave her back her house keys, which she eventually discovered he did not have. Ptl. Simmons told appellant that if he came back to Brown’s apаrtment, he would be arrested. Appellant told police he had a friend who lived around the corner and he would walk to his friend’s house and then return to Shelby.
{¶6} Upon arriving at Brown’s house, she showed Simmons where appellant had opened a window and trampled the grass. She told Simmоns that she would not be able to sleep knowing appellant was outside, and asked that he be arrested. Simmons placed appellant in handcuffs, informed him that he was under аrrest for persistent disorderly conduct, and transported appellant to the jail. On the way to the jail, Simmons opened the cigarette packets as a part of his inventory procedure and found marijuana in one of the packets.
{¶7} Appellant was charged with possession of marijuana in violation of
{¶9} In his sole assignment of error, appellant argues that the officer could not search appellant and remove the cigarette packs during thе investigatory detention prior to his arrest.
{¶10} The Ohio Supreme Court has held that during a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer. State v. Lozada, 92 Ohio St. 3d 74, 77, 748 N.E.2d 520, 524 (2001). In the instant case, while not a traffic stop, it is apparent that the officer placed appellant in the cruiser for his own convenience while he investigated the call from Brown. Ptl. Simmons testified at the suppression hearing that he was the only officer on the scene at the time, and he placed appellant in the cruiser so hе could keep an eye on appellant while talking to Brown. Because appellant was placed in the cruiser for the officer’s convenience, the оfficer did not automatically have the right to pat appellant down for weapons.
{¶11} Once a lawful stop has been made, a police officer may conduсt a limited protective search for concealed weapons if the officer reasonably believes that the suspect may be armed or a danger to the оfficer or to others. State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993). To justify a patdown search, “[t]he police officer must be able to point to specific and articulable facts which, taken together with
{¶12} The officer did not testify to any facts that would lead him to believe that appellant was armed. Further, the officer did not testify that he believed the cigarette packs to be a weapon or cоntraband. The officer testified that he removed the cigarettes for the sole reason that he did not want appellant smoking in his new police cruiser. The officer was not constitutionally permitted to remove the cigarette packs from appellant’s pocket at this stage of the investigation.
{¶13} Under the inevitable discovery rule, illegаlly obtained evidence is properly admitted in a court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
{¶14} Appellant was arrested for persistent disorderly conduct before the officer opened the cigarette package and thus before the officer was aware that the package contained marijuana. The officer testified that he inventories an arrested
{¶15} Appellant argues in his brief that the arrest for persistent disorderly conduct is “difficult to justify” because appellant had not been charged with disorderly conduct prior to the arrest for persistent disorderly conduct. Appellant argues that disorderly conduct is only a minor misdemeanor, for which he could not be arrested.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
rad/CRB