State v. McKiry, 88446 (6-7-2007)State v. McKiry, 88446 (6-7-2007)
{¶ 1} The State of Ohio (“State“) appeals from the decision of the trial court granting Armond McKiry‘s (“McKiry“) motion to suppress. The State argues the trial court erred when it concluded a police officer may only search the suspect‘s vehicle incident to an arrest for a felony offense. We agree with the State and reverse the decision of the trial court.
{¶ 2} On March 10, 2006, Valley View Police Officer Anthony Nero (“Officer Nero“) was running his radar detector while parked across from the Shell Gas Station on Granger Road. While doing so, McKiry pulled out of the gas station and Officer Nero observed an equipment violation. Specifically, McKiry‘s rear license plate bulb was not functioning, in violation of Valley View ordinance.
{¶ 3} Based on the equipment violation, Officer Nero attempted to initiate a traffic stop. Officer Nero activated his overhead lights and began to follow the vehicle. However, McKiry failed to pull to the side of the road; instead, McKiry extended his arm out of the window and gestured as if to be waiving Officer Nero past. At that time, Officer Nero activated his siren but McKiry still refused to stop or pull to the side of the road. No other cars were on the road.
{¶ 4} Officer Nero called for assistance and Officer Michael Eder joined the pursuit. Because McKiry continued to ignore the officers’ demands to pull over, Officer Eder pulled alongside McKiry, across from McKiry‘s driver side window. Officer Eder verbally ordered McKiry to pull over, but McKiry refused, simply waiving
{¶ 5} As the pursuit continued towards Transportation Boulevard, Officer Eder and Officer Nero ended the chase by boxing in McKiry‘s vehicle, and McKiry stopped the car. Officers Nero and Eder both exited their vehicles and told McKiry to place his hands on the wheel. Despite this order, McKiry continued moving around inside the vehicle. When McKiry stopped moving, Officer Eder approached and placed McKiry under arrest for failure to comply with the order or signal of a peace officer.
{¶ 6} The officers also instructed the two passengers to exit the vehicle. Next, Officer Eder searched the area of the vehicle that McKiry had been reaching and gesturing towards during the pursuit. During the search, Officer Eder located a fully loaded, Clock 30, .45 caliber handgun in the center console area.
{¶ 7} On April 11, 2006, a Cuyahoga County Grand Jury returned a two-count indictment charging McKiry with carrying a concealed weapon and having a weapon while under disability. McKiry pleaded not guilty.
{¶ 8} Prior to trial, McKiry‘s counsel moved to suppress the handgun seized during the search of his client‘s vehicle. On July 10, 2006, the trial court conducted an oral hearing on the motion. After hearing from both sides, the trial court granted McKiry‘s motion and suppressed the handgun recovered by the officers during the search. In granting the motion, the trial court held the search of the vehicle was not
{¶ 9} In its sole assignment of error, the State argues as follows:
“The trial court erred in granting appellee‘s motion to suppress evidence because the search was valid pursuant to the search incident to arrest exception to the
Fourth Amendment.”
{¶ 10} At a hearing on a motion to suppress, the trial court assumes the role of the trier of fact and therefore is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357; State v. Cottrell, Ashtabula App. No. 2004-A-0059, 2005-Ohio-6082. When reviewing a motion to suppress, this appellate court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592. Accepting these findings of fact as true, a reviewing court must independently determine as a matter of law, without deference to the trial
{¶ 11} The
{¶ 12} The initial burden to establish a warrantless search rests with the defendant. Id. However, once a warrantless search is established, the burden of persuasion is on the State to show the validity of the search. Xenia v. Wallace (1988), 37 Ohio St.3d 216. The state must either show that there actually was a warrant, or that there was some other justification for the search or seizure. State v. Rodriquez (1990), 66 Ohio App.3d 5.
{¶ 13} In the present case, there is no question that a warrantless search took place. The State contends, however, that even though a warrantless search and seizure took place, that search was incident to a lawful arrest and therefore, a warrant was not required. Officers Nero and Eder testified that they placed McKiry
{¶ 14} Police officers may conduct warrantless searches to some extent as an incident to a proper arrest. Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341. The
{¶ 15} Although the trial court‘s findings of fact are supported by the evidence in the record, we cannot agree with the court‘s application of the law to those facts. As stated above, a police officer may validly search the passenger area of an automobile, incidentally to an arrest for a misdemeanor traffic violation. Belton, supra; Murrell, supra. That is exactly what happened in the present case. Officers Nero and Eder arrested McKiry for failing to comply with the order or signal of a
{¶ 16} The trial court erred in suppressing the handgun. The weapon is admissible as the product of a constitutionally valid search.
{¶ 17} The State‘s single assignment of error is sustained.
{¶ 18} The judgment of the trial court is reversed and the matter is remanded for proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, P.J., and ANN DYKE, J., CONCUR.