STATE OF OHIO, PLAINTIFF-APPELLEE, v. RANDALL E. MORLOCK, DEFENDANT-APPELLANT.
CASE NO. 1-12-21
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
February 25, 2013
[Cite as State v. Morlock, 2013-Ohio-641.]
Aрpeal from Allen County Common Pleas Court Trial Court No. CR20120065 Judgment Affirmed
Jason N. Flower for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-Appellant, Randall E. Morlock (“Morlock”), appeals the judgment of the Allen County Court of Common Pleas finding him guilty of possession of crack cocaine, after his motion to suppress was denied and he entered a plea of no contest. On appeal, Morlock contends that the trial court erred when it denied his motion to suppress because he claims that the search of his vehicle was an illegal, warrantless search and because the search was not a valid Terry search. For the reasons set forth below, the judgment is affirmed.
{¶2} On November 30, 2011, at apрroximately 1:15 a.m., Officer Mark Link of the Lima Police Department was on patrol when he observed Morlock park his vehicle and go up to the front porch of a duplex, which was a suspected drug house. (04/06/12 Hearing Tr. 7) Officer Link called dispatch to check on the license plates and also called Officer Jеsse Harrod to respond. Officer Link was subsequently informed that the license plates on the vehicle were not valid and they needed to be confiscated. (Tr. 9) Morlock left the duplex within 2-3 minutes, and Officer Link followed him and initiated a traffic stop because of the invalid license plates. During the traffic stop, a small quantity of сrack cocaine was found in the vehicle and Morlock was then taken into custody. (Tr. 17)
{¶3} On February 16, 2012, the Allen County Grand Jury returned a single count indictment charging Morlock with possession of cocaine, a felony of the
{¶4} On April 4, 2012, a hearing was held on Morlock‘s motion to suppress. The trial court heard the testimony of the two officers who were involved in the traffic stop. Officer Link testified that he had nearly 20 years of law enforcement experience. He had called dispatch to check on Morlock‘s plates because it was late at night in a high crime area where there had been problems with prostitution, drugs, robberies, numerous assaults, and even shootings. (Tr. 18) The police had received reports of drug activity at the building where Morlock parked and аpproached the front stairs. (Tr. 7) Just after Officer Link learned that the license plates needed to be confiscated, he observed Morlock returning to his truck and beginning to drive away. In Officer Link‘s experience, this type of short-term, in-and-out traffic was indicative of the drug trade. (Tr. 18-19)
{¶5} Link hurried to catch up with Morlock and activated his overhead lights in order to make a traffic stop. Officer Link testified that Morlock did not initially stop, but rather, drove further down the block and then pulled over to the curb. (Tr. 11) Link pulled in behind the pick-up truck, which was lit with both the
{¶6} Officer Link approached the pickup truck on the driver‘s side while Officer Harrod, who had just arrived as backup, approached the truck on the passenger side. (Tr. 12-13) Because of Link‘s concern that Morlock may have hidden a weapon, Link instructed Morlock to exit the vehicle and to stand with Officer Harrod on the passenger side of the vehicle in the tree-lawn area. (Tr. 13-14) Morlock complied.
{¶7} Officer Link walked up to the pickup truck where Morlock had left the driver‘s door open. Because of Officer Link‘s belief that Morlock had been hiding a weapon or contraband, and because the vehicle was ultimately going to be impounded and searched pursuant to the impound, Link looked inside the truck to see what Morlock may have hidden. (Tr. 15, 19, 47) The only item on the floor of the truck, just beneath the edge of the seat area, was a wadded up tissue. (Tr. 15-17) Link retrieved the tissue and found crack cocaine inside. (Tr. 17) Link then advised Officer Harrod to place Morlock under arrest.
{¶9} It is from this judgment that Morlock now appeals, raising the following two assignments of error for our review.
First Assignment of Error
The trial court erred in ovеrruling [Morlock‘s] motion to suppress because Morlock was in custody, and the search of the vehicle was outside the scope of the detention as he did not have access to the vehicle at the time of the search.
Second Assignment of Error
The trial court erred in overruling [Morlock‘s] motion to suppress because the stoр conducted by Patrolman Link was not a valid Terry stop.
{¶10} Both of Morlock‘s assignments of error assert that the trial court erred when it failed to grant his motion to suppress the evidence of the cocaine that was discovered during the traffic stop. Morlock does not dispute that the officers had probable cause to make the traffic stop but he contends that there was no basis for the warrantless search of the vehicle. Because both of the assignments of error are related and involve Fourth Amendment exceptions pertaining to warrantless searches, we shall discuss them together.
{¶12} At a suppression hearing, the state bears the burden of establishing that a warrantless search and seizure falls within one of the exceptions to the warrant requirement and that it meets Fourth Amendment standards of reasonableness. Xenia v. Wallace, 37 Ohio St.3d 216 (1988), paragraph two of the syllabus; State v. Penn, 61 Ohio St.3d 720, 723 (1991); Grubb, supra. The Supreme Court of Ohio has established the standard of review for a motion to suppress evidence:
Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in thе best position to resolve factual questions and evaluate the credibility of witnesses. * * * Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent,
credible evidence. * * * Accepting these facts as true, the appellate court must then indеpendently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. * * *
(Citations omitted) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8; accord, State v. Wilson, 3d Dist. No. 5-07-47, 2008-Ohio-2742, ¶ 15.
{¶13} Morlock claims the search was unauthorized, relying upon the United States Supreme Court‘s opinion in Arizona v. Gant, supra, for the proposition that police may search a vehicle incident to an occupant‘s arrest only if the arrestee is within reaching distance of the passenger compartments at the time of the search, or if it is reasonable to believe that the vehicle contains evidence of the offense for which the defendant was arrested. See Gant, U.S. 556 at 343. Morlock maintains that offiсer safety was not at issue because he was outside the vehicle, next to Officer Harrod, and in police custody. Morlock contends that he did not have access to the interior of his vehicle at the time of the search, so there was no justification to conduct the warrantless search as a search incident to arrest. And, it was not reasonable to believe that the interior of the vehicle contained any evidence of the offense for which he was stopped, because the invalid plates were evident from the outside of the vehicle, and had already been confirmed by police dispatch. Therefоre, he claims that it was not reasonable for the officer to “believe the vehicle contain[ed] evidence of the offense of arrest.” See Gant.
{¶15} Officer Link described Morlock‘s actions that he observed right after he stopped his vehicle, stating that, “I saw him lean over and forward with his right hand. * * * I noticed that his arm is straight, so he leans like this (indicating), and then he leans back over to the left and then starts rolling down the window.” (Tr. 11-12)
Q. And what did you interpret that [movement] to be?
A. I interpreted that he might be trying to hide either some type of weapon or contraband.
(Tr. 12)
{¶16} Because of this concern, Officer Link asked Morlock to step out of the vehicle and to stand with Officer Harrod.
Q. And why did you do that?
A. Because I don‘t know if he‘s trying to hide – I don‘t know if he‘s got a weapon up there trying to hide. And if I see somebody do what I consider or construe a furtive movement, for my safety, for the other officer‘s safety, I don‘t go any farther up on a vehicle than that.
(Tr. 13-14) Officer Link did not do an exhaustive search of the vehiсle, but merely looked inside in the area where he saw Morlock reaching, and immediately noticed the tissue. (Tr. 15-16)
{¶17} It was only after Officer Link opened the tissue and found what appeared to be rocks of crack cocaine that he instructed Officer Harrod to take Morlock into custody.
Q. Prior to that, was [Morlock] under arrest?
A. No, he was not.
Q. He was just being detained so you could do your protective sweep?
A. Correct.
(Tr. 17)
{¶18} The evidence clearly demonstrates that concern for the officers’ safety was a primary motivation behind Officer Link‘s examination of the vehicle. Because of Morlock‘s suspicious movements, Officer Link believed that Morlock “was attempting to hide either а weapon or contraband.” (Tr. 50)
I have twenty years experience. I‘ve done a lot of traffic stops in my time. I‘ve seen a lot of furtive movements. I‘ve seen natural movements. I‘ve seen pеople get in, get out of their vehicles; how they act; how they interact. I know how I interact when I turn my vehicle on or when I lean over to put something down.
{¶20} The holding in Gant was intended to limit the overly broad reading of New York v. Belton, 453 U.S. 454 (1981) that the Supreme Court feared had expanded to the point of “giving police officers unbridled discretion to rummage at will among a person‘s private effects.”1 Gant at 345. Thе Supreme Court did not intend to eliminate existing legitimate reasons for conducting a warrantless search. In fact, Gant specifically affirmed the Fourth Amendment exceptions that “ensure that officers may search a vehicle when genuine safety or evidentiary
Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long, 463 U.S. 1032, * * * (1983), permits an officer to search a vehicle‘s passenger compartment when hе has reasonable suspicion that an individual, whether or not the arrestee, is “dangerous” and might access the vehicle to “gain immediate control of weapons.” * * * If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798 (1982), authorizes a search of any area of the vehicle in which the evidence might be found. * * * Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader. Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. * * *
{¶21} In addition to cоntinuing to allow for searches when safety is a concern, Gant continues to allow for evidence relevant to offenses other than the offense of the arrest under appropriate circumstances. See id.; see Ross, supra; see, also, State v. Kessler, 53 Ohio St.2d 204 (1978). In this case, Officer Link was concerned that Morlock may have hidden a weapon or contrаband. Morlock was observed in an area with a high crime rate, late at night, and had just made a very brief stop at a location that was suspected to be a place where drugs were sold. Officer Link had considerable evidence before him that would cause him to reasonably believe that Morlock may havе been attempting to hide drugs when he made his furtive movement.
{¶23} If Morlock had not been taken into custody because of the cocaine, there is no assurance that he would not have had access to the interior of the vehicle. Therefore, this situation is distinguishable from Gant, wherein the defendant was under arrest and secured in handcuffs inside a patrol car without the possibility of leaving police custody. The search of the vehicle was based upon concern for the officers’ safety. In addition, Officer Link also reasonably believed that there could have been contraband hidden under the seat. The search of the vehicle was not a search incident to arrest, therefore, the rule announced in Gant is
{¶24} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and ROGERS, J., concur.
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