State v. WhippleState v. Whipple
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellee
RINGLAND, J.
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a decision of the Clermont County Court of Common Pleas granting the motion to suppress evidence filed by defendant-appellee, Sheldon A. Whipple. For the reasons that follow, we reverse the decision of the trial court.
{¶ 2} On October 23, 2015, Greg Johnson, a loss prevention supervisor at the Meijer
{¶ 3} Officer Davila parked near the cart corral, exited his cruiser and made contact with Whipple. Officer Davila placed Whipple in handcuffs and advised him of his rights. During this time, Johnson approached Officer Davila and identified Whipple as the suspect. Johnson further informed Officer Davila that Whipple was currently wearing the stolen belt. Therefore, Officer Davila lifted up Whipple‘s shirt and observed the belt around Whipple‘s waist with the price tags still attached. Officer Davila removed the belt and returned it to Johnson, and then, proceeded to search Whipple and his green backpack, for his and Whipple‘s safety as well as to see if there was any other stolen merchandise on Whipple‘s person.
{¶ 4} Officer Davila found a cigarette pack inside the green backpack that contained a folded piece of aluminum foil with a white powdery substance inside of the foil. Based on his training and experience, Officer Davila believed this substance to be some kind of narcotic.
{¶ 5} Based on these events, the Clermont County Grand Jury returned a two-count indictment charging Whipple with theft and aggravated possession of drugs. Whipple filed a motion to suppress evidence challenging the warrantless search conducted by Officer Davila
{¶ 6} The state appeals the decision of the trial court raising two assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT DID NOT RELY ON COMPETENT, CREDIBLE EVIDENCE TO SUPPORT ITS DECISION AND AS SUCH, IT ERRED IN SUPPRESSING THE EVIDENCE.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT INCORRECTLY APPLIED THE FOURTH AMENDMENT,
{¶ 11} We first address the state‘s second assignment of error, in which the state contends the trial court improperly granted Whipple‘s motion to suppress the evidence found inside the green backpack. The state argues the warrantless search of the backpack was a valid search incident to Whipple‘s arrest because Whipple had the backpack under his immediate control at the time of the arrest. Whipple concedes that he was in possession of the backpack at the time Officer Davila approached him. Whipple further concedes that the backpack was within his immediate control at such time. However, Whipple asserts the trial court properly suppressed the evidence because he was handcuffed during the search and
{¶ 12} Therefore, the questions presented are: (1) at what point must the item searched incident to an arrest be within the arrestee‘s immediate control, and (2) if the exception is applicable, what is the permissible scope of the search.
{¶ 13} When considering a motion to suppress, the trial court assumes the role of the trier of fact; therefore, it is in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366 (1992). Accordingly, when reviewing a trial court‘s decision on a motion to suppress, we accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Henderson, 12th Dist. Warren Nos. CA2002-08-075 and CA2002-08-076, 2003-Ohio-1617, ¶ 10. However, we review de novo whether the trial court‘s conclusions of law – based on those findings of fact – are correct. Id.
{¶ 14} The
{¶ 15} We preliminarily note that in order for a search to be conducted pursuant to the search incident to arrest exception, the underlying arrest must be lawful. State v. Willis, 12th Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 24, citing Chimel at 753. In turn, for an arrest to be lawful, it must be based on probable cause, which is defined as “‘whether at that moment the facts and circumstances within [the arresting officer‘s] knowledge and of which [the officer] had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.‘” State v. Washington, 10th Franklin No. 00AP-663, 2001 Ohio App. LEXIS 1925, *7 (May 1, 2001), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223 (1964). In this case, the trial
{¶ 16} We next determine whether the backpack was properly searched incident to
{¶ 17} Pursuant to the cases cited above, this court explained “the focus of [the] inquiry is whether the [item searched] was within the immediate control of the suspect at the beginning of the encounter with law enforcement officials and whether any delay in searching the container can be viewed as reasonable in nature.” (Emphasis added.) Henderson, 2003-Ohio-1617 at ¶ 12-14, distinguishing State v. Myers, 119 Ohio App.3d 376, 381 (2d Dist.1997) (suppressing evidence where defendant did not have physical control over the purse at the time of the arrest). This result is consistent with the holdings of various federal courts. See, e.g., United States v. Nelson, 102 F.3d 1344, 1346-47 (4th Cir.1996); United States v. Morales, 923 F.2d 621, 626-27 (8th Cir.1991); United States v. Johnson, 846 F.2d 279, 283 (5th Cir.1988); United States v. Herrera, 810 F.2d 989, 990 (10th Cir.1987).
{¶ 18} In the present case, the record reveals that both at the time of the offense and
{¶ 19} In Gant, police officers searched the defendant‘s automobile after handcuffing the defendant and placing him in the back of a police cruiser. Gant, 556 U.S. at 335. The United States Supreme Court found the search unreasonable and stated officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe the vehicle contains evidence of the offense of the arrest. Id. at 351. Moreover, the Second District in Frazee declined to extend the holding in Gant to the search of an item on an arrestee‘s person because “the holding in Gant is narrowly confined to the search of a vehicle incident to arrest.” State v. Frazee, 2d Dist. Montgomery No. 26699, 2015-Ohio-4786, ¶ 17.
{¶ 20} Nonetheless, the outcome in this case would be no different even if we were to extend the holding in Gant to the search of an item on an arrestee‘s person. The mere fact that Whipple‘s backpack was removed in order to place him in handcuffs is inconsequential and the fact that the backpack was only placed a few feet away from the defendant is not unreasonable. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 186 (stating search of jacket three or four feet away likely proper under Gant because it was within defendant‘s reach at the time of the search); Sharpe, 2000 Ohio App. LEXIS 2964 at *15 (finding
{¶ 21} Therefore, based on the foregoing case law, the search of the backpack was a lawful search incident to Whipple‘s lawful arrest because the backpack was within Whipple‘s immediate control and the search was instantaneous with the arrest.
{¶ 22} Next, we turn to the reasonableness of the scope of the search. Whipple asserts that if the backpack was subject to a lawful search incident to his arrest, then, the backpack could only be searched for weapons and additional stolen merchandise. Based on this reasoning, Whipple contends that once the search revealed neither weapons nor merchandise, any additional search of containers within the backpack which would not reveal weapons or merchandise was beyond the permissible scope of the exception, and therefore, unconstitutional.
{¶ 23} However, contrary to Whipple‘s claim otherwise, while a lawful search incident to arrest is “based upon the need to disarm and to discover evidence, [it] does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Robinson, 414 U.S. at 235. Rather, a “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the
{¶ 24} Based on this holding, the Court in Robinson concluded that a search of a cigarette pack found in an arrestee‘s jacket “was reasonable even though there was no concern about the loss of evidence, and the arresting officer had no specific concern that [the
{¶ 25} The facts in this case are analogous to the facts of Robinson. Officer Davila conducted a lawful search incident to Whipple‘s arrest. Whipple‘s backpack was the subject of the search and was immediately associated with his person at the time of his arrest. Officer Davila‘s search included further examination of a cigarette pack found within the backpack. Even if Officer Davila had a lack of concern about the loss of evidence or that Whipple may have been armed, the search was nonetheless reasonable pursuant to Robinson because it was discovered in the course of a lawful search and this court need not determine the probability that Whipple‘s particular arrest would have resulted in weapons or evidence. Therefore, the search conducted by Officer Davila did not exceed the permissible scope of the search incident to arrest exception.
{¶ 26} Accordingly, the state‘s second assignment of error is sustained. In light of our resolution of the state‘s second assignment of error, the state‘s first assignment of error is moot.
{¶ 27} The trial court‘s decision suppressing the evidence found in the backpack is reversed, and the matter is hereby remanded for further proceedings according to law and consistent with this court‘s opinion.
S. POWELL, P.J., and PIPER, J., concur.