STATE OF OHIO v. STEPHANIE RASLOVSKY
Appellate Case No. 2019-CA-55
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
February 14, 2020
2020-Ohio-515
Trial Court Case No. 2018-CR-720; (Criminal Appeal from Common Pleas Court)
Rendered on the 14th day of February, 2020.
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
SARA M. BARRY, Atty. Reg. No. 0090909, 1139 Holly Avenue, Dayton, Ohio 45410 Attorney for Defendant-Appellant
HALL, J.
I. Facts and Procedural History
{¶ 2} One evening in June 2018, a group of Springfield police officers were working as part of a task force formed to look for suspected drug activity. Two officers were watching a particular city street in an unmarked vehicle, investigating complaints of drug activity. Around 9:15 p.m., a vehicle stopped on the street they were watching and left a few minutes later. The officers could not tell if the vehicle had stopped at one of the suspected houses. They followed the vehicle for several blocks and eventually saw it fail to signal a turn. The officers radioed Officer Derrick Nichols, a drug canine officer, who proceeded to stop the vehicle for the turn-signal violation.
{¶ 3} Officer Nichols approached the vehicle on foot and saw a driver and three passengers. Nichols began speaking with the driver. Other officers soon arrived and spoke with the passengers. Officer Nichols had the driver step out of the vehicle, which she did, taking her purse. The driver consented to a search of her purse, and Nichols found no contraband inside. The driver also consented to a search of the vehicle.
{¶ 4} The officers decided to deploy the drug dog and asked the occupants to get out of the vehicle. What happened next is not entirely clear from the trial court’s decision, perhaps because neither party focused on whether the location or circumstances of Raslovsky’s purse mattered. The decision indicates “the defendant exited with her purse, but Officer Nichols either placed it back into the vehicle or instructed her to do so.” But the specific testimony and the audio/video recording (State’s Exhibit 2) of the stop provided a different perspective. The defense called Raslovsky as a witness but did not
{¶ 6} Raslovsky was arrested and later indicted on one count of possession of cocaine, a fifth-degree felony. She moved to suppress the drugs found in her purse. A suppression hearing was held at which the only witnesses were Officer Nichols, a police dispatcher, and Raslovsky herself. Officer Lish did not testify. Afterwards, the trial court overruled the motion to suppress, concluding that the stop, Raslovsky’s removal from the vehicle, the dog sniff, the search of the vehicle, and the search of Raslovsky’s purse were all lawful. Raslovsky pleaded no contest to the possession charge and was sentenced to ten months in prison with optional post-release control of three years.
{¶ 7} Raslovsky appeals.
II. Analysis
{¶ 8} The sole assignment of error alleges that the trial court erred by denying Raslovsky’s motion to suppress. Raslovsky argues that the driver’s consent to search the vehicle did not give officers the right to search her purse. She also argues that the Fourth Amendment’s automobile exception did not justify the search of her purse.
{¶ 9} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. An appellate court accepts the trial court’s findings of fact if they are supported by competent, credible evidence. Id. “Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether
A. Search based on consent to search the vehicle
{¶ 10} Raslovsky first argues that the driver’s consent to search the vehicle did not extend to a search of her purse. Raslovsky is correct, and that is consistent with the trial court’s conclusion: “The Court finds that Officer Nichols was not authorized to search the defendant’s purse under the voluntary consent exception to the warrant requirement because the driver’s consent to a search of the vehicle’s passenger compartment did not extend to it.” Indeed, Raslovsky admits in her brief that this was the court’s conclusion: “the trial court explicitly agreed that Officer Nichols was not authorized to search Appellant’s purse under the voluntary consent exception to the warrant requirement.” The state also agrees: “The State concurs that the search of the purse could not be justified by the driver’s permission to search the vehicle.”
{¶ 11} Since all are in agreement that the driver’s consent did not extend to a search of the passenger’s purse, we see little point in further discussing that issue.
B. Search based on automobile exception
{¶ 12} Raslovsky also argues that the automobile exception to the
{¶ 13} The
{¶ 14} Here, the dog sniff around the vehicle’s exterior was lawful. See Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (holding that a dog sniff on the exterior of a vehicle does not constitute a search). The dog’s subsequent alert to the vehicle triggered the automobile exception, giving the officers probable cause to believe that the vehicle contained drugs and allowing the officers to search the vehicle’s interior. See Florida v. Harris, 568 U.S. 237, 250, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (holding that a dog’s alert to a vehicle constituted probable cause to search it for drugs). The permissible search extends to “passengers’ belongings found in the car that are capable of concealing the object of the search.” Houghton at 307. The discrete question is whether this included Raslovsky’s purse.
{¶ 15} Raslovsky argues that when a purse is being worn or held, it is not merely an object but is part of the owner’s person, making the expectation of privacy greater. As such, she contends, the rules that apply to the search of a person apply to the purse; it cannot be searched unless the owner is arrested or there is probable cause to believe that the purse contains contraband.
{¶ 16} Justice Breyer appears to agree with this argument in his concurring opinion in Houghton. There he said that “[p]urses are special containers. They are repositories of
{¶ 17} The issue has come before courts in other jurisdictions. The Kansas Supreme Court addressed the issue in State v. Boyd, 275 Kan. 271, 64 P.3d 419 (2003). In Boyd, a police officer ordered the defendant out of the vehicle, and when she grabbed her purse, the officer ordered her to leave the purse in the vehicle. The court, relying in part on Justice Breyer’s Houghton concurrence, concluded that unless there is an arrest or probable cause sufficient to support a search, a woman’s purse in her possession or under her control constitutes part of her person and is not subject to search. The Kansas court held that “where a passenger is told by a police officer to get out of a lawfully stopped vehicle and in response to the officer’s order to leave her purse in the vehicle, puts the purse down and exits the vehicle, a subsequent search of the purse as part of a search of the vehicle violates the passenger’s
{¶ 18} The North Dakota Supreme Court has held similarly. That court, also considering Houghton, said that “[a] purse, like a billfold, is such a personal item that it logically carries for its owner a heightened expectation of privacy, much like the clothing the person is wearing. We are, therefore, persuaded * * * that the
{¶ 19} The issue came before the Ohio Supreme Court in State v. Mercier, 117 Ohio St.3d 1253, 2008-Ohio-1429, 885 N.E.2d 942. In that case, the defendant was a passenger in the stopped vehicle, holding her purse on her lap. A police officer ordered her out and told her to leave the purse in the vehicle. An officer later searched the purse under the automobile exception. The appellate court had found that the search did not violate the
{¶ 20} From the appellate court’s decision in Mercier, we learn that Mercier had argued what Justice Lanzinger would have held: that because the purse was on her lap when the car was stopped, it was attached to her person, so it could not have been
{¶ 21} We addressed this issue too, in State v. Caulfield, 2013-Ohio-3029, 995 N.E.2d 941 (2d Dist.). There, the defendant was a front-seat passenger in a vehicle stopped for a minor traffic violation. The officer discovered that the driver was under suspension, that he had a prior drug suspension, and that a warrant had been issued for his arrest. The officer arrested the driver, and the driver consented to a search of the vehicle. An officer asked the defendant to exit the vehicle. She carried her purse with her as she got out, but the officer ordered her to leave it in the vehicle, and the purse was searched, along with the interior of the vehicle. We held that the search and seizure of the purse was unlawful because it was not justified based on the driver’s consent to search the vehicle, id. at ¶ 25, and because the search-incident-to-arrest of the driver exception to the warrant requirement did not apply to the vehicle, id. at ¶ 34. Only after holding that the search was unlawful, because neither the driver’s consent nor search-incident-to-arrest of the driver extended to the passenger’s purse, did we go on to opine
{¶ 22} In Mercier, the Ohio Supreme Court had a clear opportunity to adopt a different rule for held or carried purses, a rule like the one that Raslovksy urges us to apply. But the Court declined to do so, holding instead that purses in those circumstances are still subject to search under Houghton. We think that Caulfield’s discussion of the issue is unpersuasive because Caulfield did not consider or address Mercier’s implicit rejection of Boyd. Anyway, the Caulfield discussion, although related to our analysis, is not the holding of the case because the Caulfield holding, which we recognize and apply, is that the passenger’s purse could not be lawfully searched based on the driver’s consent or the search-incident-to-arrest exception.
{¶ 23} Lastly, we note that even if we were to adopt the rule urged by Raslovsky, it would not apply here. Based on the evidence, it appears that Raslovsky was not holding her purse at the time that she was ordered out of the vehicle. According to Officer Nichols, “* * * Officer Lish had Miss Raslovsky exit the vehicle and she grabbed her purse. Officer Lish then told her to leave her purse inside.” (T. 29). And although Raslovsky herself testified, “When I got out of the vehicle and I picked my purse up to get out and they took
{¶ 24} As it is, the search of Raslovsky’s purse was lawful based on the probable cause arising from the drug dog’s alert. While Raslovsky’s purse was in the vehicle, probable cause arose that allowed officers to search the interior of the vehicle and containers therein. Accordingly, the trial court was correct in overruling the motion to suppress.
{¶ 25} The sole assignment of error is overruled.
III. Conclusion
{¶ 26} We have overruled the sole assignment of error presented. The trial court’s judgment is affirmed.
TUCKER, J., concurs.
FROELICH, J., dissents:
{¶ 27} I would conclude that the police officers did not lawfully require Raslovsky to leave her purse in the vehicle and, consequently, the officers did not lawfully search the purse after the dog’s alert. Accordingly, I dissent.
{¶ 28} Stephanie Raslovsky was the front-seat passenger in a vehicle that was
{¶ 29} The driver and her passengers, including Raslovsky, were removed from the vehicle. Raslovsky left her purse in the vehicle at the officer’s instruction. Officer Nichols’s dog, Gary, subsequently alerted on the passenger side of the vehicle, which resulted in a search of the vehicle, including Raslovsky’s purse. Officer Lish found an illegal drug in the purse.
{¶ 30} Current law generally permits pretextual traffics stops. See, e.g., Dayton v. Erickson, 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996). Once a lawful stop has been made, the police may require the driver and any passengers to exit the vehicle pending completion of the traffic stop. State v. Mobley, 2d Dist. Montgomery No. 26044, 2014-Ohio-4410, ¶ 13, citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993). “Where there is a lawful basis for the stop, ordering an occupant out of the car is proper, even if the officers are not prompted by a reasonable, articulable suspicion of criminal activity.” Mobley at ¶ 13, citing Evans at 408. Moreover, because a dog sniff does not constitute a search, a canine officer may also conduct a free-air sniff of a vehicle without probable cause. E.g., Kettering v. Maston, 2d Dist. Montgomery No. 27567, 2018-Ohio-1948, ¶ 19. Current case law indicates that an alert by a drug dog creates probable cause to search the
{¶ 31} Even ignoring developing areas of the law dealing with dog sniffs, see, e.g., Phipps, Probable Cause on a Leash, 23 B.U.Pub.Int.L.J. 57 (2014), including developments regarding alerts for previously-illegal substances, there was no testimony concerning this dog’s history or the training and qualifications of either the dog or his handler. But neither the motion to suppress nor any facts or argument at trial “alerted” the trial court to these issues, which were therefore waived. E.g., State v. Matthews, 2d Dist. Miami No. 2014-CA-23, 2015-Ohio-1750, ¶ 29 (defendant waived any argument regarding the dog’s or handler’s qualifications for purposes of appeal by failing to raise these issues in his motion to suppress and failing to object at the suppression hearing to the officer’s testimony about the use of the dog to establish probable cause to search the vehicle).
{¶ 32} Regardless, I would conclude, on the facts before us, that the officer had no authority to instruct Raslovsky to leave her private property in the vehicle, especially an item so closely associated with a person such as her purse, in the absence of probable cause to search Raslovsky or the vehicle in which she was seated.
{¶ 33} We commented on a similar situation in Caulfield, 2013-Ohio-3029, 995 N.E.2d 941 (2d Dist.). In that case, a deputy stopped a vehicle after observing that the license plate was completely obscured by snow. The deputy arrested the driver on an active warrant; the driver then gave consent for a search of the vehicle. The deputy asked Caulfield, the front-seat passenger, to exit the vehicle and instructed her to leave her purse in the car. Caulfield’s purse then was searched as part of the search of the vehicle. On review, we concluded that the deputies did not lawfully search Caulfield’s
Even if the search incident to arrest exception had applied, the search of Caulfield’s purse would still be unlawful, since the trial court found that the officer ordered Caulfield to leave her purse in the vehicle without having probable cause to believe that there was contraband in the vehicle. Courts in other jurisdictions have held that an officer, without probable cause to believe there is contraband in a vehicle, violates a passenger’s
Fourth Amendment rights when the officer orders the passenger to leave her purse in the vehicle, and then subsequently searches the purse along with the vehicle. See State v. Boyd, 275 Kan. 271, 282, 64 P.3d 419 (2003); State v. Newsom, 132 Idaho 698, 700, 979 P.2d 100 (1998); State v. Tognotti, 2003 ND 99, 663 N.W.2d 642, ¶ 21. In other words, “ ‘the police cannot create a right to search a container by placing it within the passenger compartment of a car or by ordering someone else to place it there for them.’ ” Tognotti at ¶ 19, quoting State v. Holland, 135 Idaho 159, 163, 15 P.3d 1167 (2000).In Boyd, a passenger did not consent to the search of her purse and was ordered to leave her purse in the vehicle during a search of the vehicle based on the driver’s consent. Boyd at 272-273, 64 P.3d 419. At the time the officer ordered the passenger to leave her purse in the vehicle, he did not have probable cause to believe that the vehicle or the purse contained contraband. Id. at 283, 64 P.3d 419. Upon searching the vehicle, the
officer discovered a crack pipe in the console of the vehicle. Id. at 272, 64 P.3d 419. Given the discovery of the crack pipe, the officer proceeded to search the passenger’s purse. Id. at 273, 64 P.3d 419. The Supreme Court of Kansas determined in Boyd “that where a passenger is told by a police officer to get out of a lawfully stopped vehicle and in response to the officer’s order to leave her purse in the vehicle, puts the purse down and exits the vehicle, a subsequent search of the purse as part of a search of the vehicle violates the passenger’s
Fourth Amendment right against unreasonable search and seizure.” Id. at 283, 64 P.3d 419; See also Newsom, 132 Idaho at 700, 979 P.2d 100; Tognotti, 2003 ND 99, 663 N.W.2d 642, at 21.Like the officers in Boyd, Deputy Wright did not have probable cause to believe there was contraband in the vehicle when he ordered Caulfield to leave her purse. Consequently, even if the search incident to arrest exception applied in this case, per Boyd, the search of Caulfield’s purse would still have been unlawful.
(Emphasis added.) Caulfield at ¶ 35-38. I would find Caulfield to be persuasive and hold that the trial court erred in concluding that the search of Raslovsky’s purse was lawful.
{¶ 34} The majority opinion does not agree with our analysis in Caulfield because Caulfield failed to discuss the Ohio Supreme Court’s apparent rejection of Boyd in State v. Mercier, 117 Ohio St.3d 1253, 2008-Ohio-1429, 885 N.E.2d 942, which was rendered five years before Caulfield.
{¶ 35} However, the facts in Mercier are distinguishable from those before us. In
{¶ 36} At this juncture, with Mercier still seated in the front passenger seat with her purse, the police had probable cause to believe that the vehicle contained contraband. The police then removed Mercier from the vehicle; at the officer’s instruction, Mercier left her purse on the front seat. The police searched Mercier’s purse, finding contraband in an Advil bottle within.
{¶ 37} In concluding that the search of Mercier’s purse was lawful, the First District initially held that, “when a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Mercier, 1st Dist. Hamilton No. C-060490, 2007-Ohio-2017, ¶ 12, citing New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Citing Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408, the appellate court next discussed that police officers with probable cause to search a car may search a passenger’s belongings found in the car that could conceal the object of the search. Mercier at ¶ 14-15. Reading the cases together, the First District concluded that Mercier’s purse, which was within reach of Hagedorn when he was arrested, was lawfully searched. The court stated, in part:
In Belton, the Court held that when the driver of a car is arrested, the area within his immediate control includes the passenger compartment of the car and any containers found there. The Belton Court defined container as “any object capable of holding another object.” Mercier’s purse, in the front seat of the car and inches away from Hagedorn, fit the Belton definition. The purposes of the Belton rule are to protect police officers and preserve evidence. If Mercier had been allowed to remove her purse prior to the search of Hagedorn’s car, weapons or contraband could have been hidden from police, and the purposes of the Belton rule would have been nullified.
* * *
(Citations omitted.) Id. at ¶ 17.
{¶ 38} The Ohio Supreme Court affirmed on the basis of Houghton, without opinion.
{¶ 39} In contrast to Mercier, the police officers in this case lacked probable cause to believe that the vehicle contained contraband when an officer instructed Raslovsky to exit the vehicle and to leave her purse behind. The vehicle had been stopped for a traffic violation after officers had followed the car from an area where they had received “some drug complaints.” The police had not observed any occupant of the vehicle participate in a drug transaction. Unlike Mercier, the search of the driver’s vehicle was not based on probable cause to believe that drugs were present in the vehicle, and no one was in custody when the dog sniff occurred. The rationales underlying Belton and Houghton, which formed the basis for the First District’s reasoning, are inapplicable here. The Ohio Supreme Court’s affirmance of the First District’s judgment on the basis of Houghton is
{¶ 40} Because I would find Caulfield persuasive and Mercier distinguishable, I would hold that the search of Raslovsky’s purse was unlawful, and that the trial court erred in denying her motion to suppress.
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