Lead Opinion
{¶ 1} Plaintiff-appellant, Beatrice Washington, appeals from a judgment of the Ohio Court of Claims in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC").
{¶ 2} This matter is before this court for the second time, and the facts and procedural history as set forth in our prior decision, Washington v. Ohio Dept. of Rehab. Corr., Franklin App. No. 03AP-912,
{¶ 3} Appellant then filed her initial appeal to this court, asserting that the trial court had incorrectly applied a reasonable-suspicion standard rather than the probable-cause standard required by R.C.
{¶ 4} In Washington I, we overruled ODRC's assignment of error and affirmed the trial court's finding that the evidence supported that a strip search of appellant had in fact occurred. We sustained appellant's assignment of error, finding that the trial court had applied the incorrect standard of determination of whether the strip search was lawful, and remanded the cause to the trial court with instructions to apply the correct probable-cause standard.
{¶ 5} Upon remand, the Court of Claims again considered the evidence it had heard at trial, this time applying the probable-cause standard set forth in Bell v.Wolfish (1979),
{¶ 6} Appellant has once again appealed and brings the following assignments of error:
First Assignment of Error
The trial court erred by finding that the APA was not liable for the strip search of Washington.
Second Assignment of Error
The trial court erred by failing to award attorney's fees to Washington.
{¶ 7} We will note ab initio that the trial court's disposition of appellant's common-law claim for invasion of privacy was not appealed in Washington I, and that that claim is no longer in the case. Likewise, the trial court's determination that a strip search of appellant actually occurred was affirmed by this court, and that factual determination has become the law of the case. As the case now stands, therefore, the question is whether the trial court's determination that probable cause existed for a strip search under R.C.
{¶ 8} When reviewing a trial court's decision on a manifest-weight-of-the-evidence basis, we are guided by the presumption that the factual findings of the trial court were correct. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967),
{¶ 9} The testimony heard by the trial court established the following. On November 1, 2000, OAPA Officer Jennifer Tibbetts, in company with two other OAPA officers and two Middletown police officers, arrived at the home appellant shared with her husband to arrest Mr. Washington for a parole violation. A sweep of the home revealed drug paraphernalia, crack cocaine, a night stick, two knives, handgun ammunition, and pornographic tapes and photographs. Officer Tibbetts testified that during the initial entry into the house and subsequent arrest and search, appellant sat calmly in the living room, made no furtive movements, and exhibited no other suspicious behavior. Based upon discovery of the weapons, particularly the handgun ammunition without a corresponding firearm, Officer Tibbetts, as the only female officer present, led appellant to a bathroom in order to secure a secluded location for a pat-down search for weapons. After patting appellant down, Officer Tibbetts requested that appellant lift her shirt and "shake out" her bra. No weapons or drugs of any kind were found either during the pat-down or subsequent strip search. Although appellant was subsequently arrested on an outstanding warrant for passing a bad check, Officer Tibbetts testified that at the time of the pat-down and strip search, appellant was not in custody nor charged with any offense. The Middletown police officers present took the crack cocaine and paraphernalia found in the house, but appellant was never charged with any crime arising out of the items. Officer Tibbetts emphasized in her testimony that the pat-down and strip search were both undertaken in furtherance of the security of the officers present, out of concern that appellant might be harboring a weapon on her person, particularly a handgun associated with the previously found ammunition.
{¶ 10} R.C.
*801(B)(1) Except as authorized by this division, no law enforcement officer, other employee of a law enforcement agency, physician, or registered nurse or licensed practical nurse shall conduct or cause to be conducted a body cavity search or a strip search.
(2) A body cavity search or strip search may be conducted if a law enforcement officer or employee of a law enforcement agency has probable cause to believe that the person is concealing evidence of the commission of a criminal offense, including fruits or tools of a crime, contraband, or a deadly weapon, as defined in section
2923.11 of the Revised Code, that could not otherwise be discovered. In determining probable cause for purposes of this section, a law enforcement officer or employee of a law enforcement agency shall consider the nature of the offense with which the person to be searched is charged, the circumstances of the person's arrest, and, if known, the prior conviction record of the person.(3) A body cavity search or strip search may be conducted for any legitimate medical or hygienic reason.
(4) Unless there is a legitimate medical reason or medical emergency justifying a warrantless search, a body cavity search shall be conducted only after a search warrant is issued that authorizes the search. In any case, a body cavity search shall be conducted under sanitary conditions and only by a physician, or a registered nurse or licensed practical nurse, who is registered or licensed to practice in this state.
(5) Unless there is a legitimate medical reason or medical emergency that makes obtaining written authorization impracticable, a body cavity search or strip search shall be conducted only after a law enforcement officer or employee of a law enforcement agency obtains a written authorization for the search from the person in command of the law enforcement agency, or from a person specifically designated by the person in command to give a written authorization for either type of search.
* * *
[D](3) If a person is subjected to a body cavity search or strip search in violation of this section, any person may commence a civil action to recover compensatory damages for any injury, death, or loss to person or property or any indignity arising from the violation. In the civil action, the court may award punitive damages to the plaintiffs if they prevail in the action, and it may award reasonable attorney's fees to the parties who prevail in the action.
{¶ 11} This provision could be interpreted, viewing the language of R.C.
{¶ 12} Pursuant to our prior decision inWashington I, therefore, the standard to be met in the present case upon remand was as follows: Officer Tibbetts, pursuant to Terry v. Ohio (1968),
{¶ 13} In the present case, it is undisputed that the presence of ammunition without corresponding weapons justified a protective pat-down of bystanders in the house. No evidence was presented, however, that after
the protective pat-down of appellant by Officer Tibbetts, probable cause existed to conduct a strip search of appellant in further search of weapons. While ODRC and the Court of Claims relied on Barnes for the proposition that a further search of weapons was justified by the initial reasonable suspicion, as we noted in Washington I, "probable cause for a more intrusive search was not at issue in [Barnes]."Washington I, at ¶ 14. Officer Tibbetts did not testify, nor was any other evidence introduced, that there existed individualized probable cause for the search, that is, that the officers' protection or safety was endangered by the individual by a subsisting belief that the individual might still harbor weapons after the pat-down. Beck v. Ohio
(1964),
{¶ 14} We accordingly find that the Court of Claims erred in finding, against the manifest weight of the evidence, that probable cause existed for a strip search allowed under R.C.
*803Judgment reversed and cause remanded.
KLATT, P.J., concurs.
FRENCH, J., concurs separately.
DESHLER, J., retired, of the Tenth Appellate District, sitting by assignment.
Concurrence Opinion
{¶ 15} I agree with the majority's opinion that no evidence of probable cause for conducting the strip search existed in this case. I write separately to explain that absence of evidence.
{¶ 16} Officer Tibbetts explained in detail her suspicions concerning appellant. The search of the premises had revealed crack cocaine and drug paraphernalia, pornographic material (that is, evidence of Mr. Washington's parole violation), ammunition for "several different handguns," a billy club, several knives, and a ski mask — "I mean, items which definitely provoked caution on my part." And while the search revealed ammunition, it did not reveal any guns. Officer Tibbetts stated: "Our suspicion was growing that, yes, in fact, there might be something like a gun that could be found. She [appellant] was sitting there. She had full access. If she did have a gun on her person, she could have done anything."
{¶ 17} All of this testimony went to establishing, as this and the trial court have found, that Officer Tibbetts had reasonable suspicion sufficient to conduct the pat-down of appellant. As the majority noted, however, there was no testimony to establish Officer Tibbetts's belief that probable cause sufficient to conduct the strip search existed. There is no such evidence because Officer Tibbetts did not realize she was about to conduct a strip search. Officer Tibbetts testified:
Q. Have you ever been talked to about the statute 2933.32, about strip searches?
A. No.
Q. Were you aware that just rearranging clothing above your breasts would be considered to be a strip search under the statute?
A. I had no knowledge of that.
{¶ 18} Thus, Officer Tibbetts never testified, and would not have testified, as to an individualized probable cause for the search after the pat-down because, in her view, her instruction to appellant to shake out her bra was nothing more than a continuation of the pat-down. While Officer Tibbetts may have acted out of good faith and taken some care not to embarrass appellant, once the trial court found, and this court affirmed, that a strip search occurred following the pat-down, the lack of probable cause evidence arising from the pat-down was fatal to the state's *804 case. Therefore, I concur in the majority's opinion reversing the judgment and remanding this matter to the trial court. *805