State v. Coles

• Decision Date: 02 July 1969
• Docket Number: No. 28578,28578
• Citation: 249 N.E.2d 553,20 Ohio Misc. 12
• Parties: , 48 O.O.2d 309, 49 O.O.2d 21 STATE of Ohio, Plaintiff, v. Walter Lee COLES, Defendant.
• Court: Ohio Court of Common Pleas

Page 12

20 Ohio Misc. 12

249 N.E.2d 553, 48 O.O.2d 309, 49 O.O.2d 21

STATE of Ohio, Plaintiff, v. Walter Lee COLES, Defendant.

No. 28578.

Court of Common Pleas of Ohio, Montgomery County.

July 2, 1969.

Lee C. Falke, Prosecutor, by Ralph D. Horn, Dayton, for plaintiff.

Ted Rice, Dayton, for defendant.

BRENTON, Judge.

I

Where a law enforcement officer lawfully arrests a motorist for a minor traffic offense his contemporaneous search of the motorist and the vehicle for weapons, without a search warrant, is lawful.

This right is based upon the fact that an arrest has been made and the officer has a right to protect himself and prevent escape.

The scope of such a search is limited to those areas reasonably necessary for the protection of the officer.

Where such an arrest is in fact part of a scheme which had as its purpose the making of a search of the person or the vehicle, the fruits of the search will be suppressed.

II

Walter Lee Coles, waiving a jury, was tried for unlawfully carrying concealed a dangerous weapon.

The weapon, a pistol, was extracted from under the left front seat of Coles' automobile. This occurred during his apprehension by two Dayton Police Officers for operating an automobile without a light so constructed and placed as to illuminate with a white light the rear registration plate as provided by section 4513.05 O.R.C.

In addition Coles was stopped for failing to have brake lights functioning. This court fails to find such failure the violation of any Ohio Statute. It may well be that Coles failed to signal his intention to stop, nevertheless, he was not confronted with nor arrested for such an offense.

Coles moved timely to suppress the evidence so seized on the ground that his right provided by the Fourth Amendment of the Constitution of the United States was thereby violated.

An evidentiary hearing was held prior to trial on the motion to suppress and it was overruled. Coles moved for reconsideration and by agreement of the parties the issue of illegal search and seizure was retried.

From the evidence produced the court concludes that on the evening of September 26, 1968, at about 7:40 P.M. Officers Prugh and Smith were cruising eastwardly on Germantown Street on routine patrol. Officer Smith observed a 1960 Cadillac, black over gold, license No. 2940 P.S., moving westwardly. As it passed Smith noticed that there was no light burning over the rear license plate. He then turned the cruiser around and pursued the Cadillac to the next intersection where it stopped for a traffic light. As it came to a stop it was observed that no rear brake lights were functioning. After crossing the intersection on the change of light the Cadillac was stopped.

The officers had recognized the automobile and its license identification as having belonged to Coles. About two years previous these officers were radioed in on an automobile chase and upon arrival with other officers found a Cadillac, which was identified as the defendant's, abandoned on Bank Street containing various items of merchandise, later identified as stolen in the approximate sum of $3,000.00. About seven months previous these officers stopped Coles for driving this same Cadillac at an excessive rate of speed at which time they saw two loaded cartridges for a .22 revolver on the floor of the Cadillac and upon the alleged consent of the defendant the truck was searched which produced an arsenal of guns and numerous items of personal property. At this time Officer Smith maintained that because of defendant's conduct upon being informed he was under arrest for investigation of burglary it was necessary to draw his service pistol in order to handcuff Coles. The substance of Smith's testimony on this part of the encounter is: 'He started to come at me, shouting and belligerent.' Each officer stated there was no other known manifestations of violence concerning Coles.

The foregoing was the totality of knowledge possessed by these officers concerning Coles when they stopped the Cadillac for traffic violation. The officers alighted and approached the Cadillac, Smith on the left and Prugh on the right, and while so doing the defendant alighted from the Cadillac on its left side. The officers then recognized the operator of the Cadillac as Walter Lee Coles. Upon arriving at the Cadillac Coles stated to Smith, 'Why are you stopping me'; 'you are harassing me'; 'This has to stop'; all in a loud and boisterous manner. Smith then informed Coles of the traffic violation and frisked him which revealed nothing significant. Coles made a movement for the door handle. Smith told Coles not to get back in the car. Coles said he was going. Smith then opened the left front door of the Cadillac and found the gun, which was not in plain sight, under the left front seat. There was a conflict between the testimony of the officers as to whether the left front door was open into traffic or closed.

Thereupon Smith and Prugh handcuffed Coles, placed him in the cruiser and at City Jail he was booked on the charge of carrying concealed a dangerous weapon.

At the jail a ticket for the traffic violation was completed and a copy placed among Coles' personal effects taken from him upon being booked. A copy was filed with the police department. It was a warning ticket and there was no prosecution or proceedings of any kind had upon the alleged traffic violation. Conviction on such charge a fine of not more than fifty dollars may be imposed.

It was stipulated by the parties that the pistol recovered from the automobile was placed there by the defendant.

III

The issue then has to do with whether a search of Coles' automobile without a search warrant following his arrest for violation of a traffic law is lawful or not.

Ardous research and minute examination conclusively admits the confusion surrounding the case-by-case development of the doctrine of search of motor vehicles without warrant incident to a valid arrest for violation of traffic laws.

The right to search motor vehicles without warrant incident to a valid arrest is an exception to the Fourth Amendment prohibition against unreasonable searches. Carrol v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. This right is subject to several qualifications. The primary test is that such search must meet the test of reasonableness under the Fourth Amendment before evidence obtained as a result of such searches is admissible. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; State v. Call, 8 Ohio App.2d 277, 220 N.E.2d 130. The numerical strength of the reported cases alone makes it readily discernable that this test hinges on the circumstances peculiar to each case. Thus resort must be had to the doctrinal refinements and ramifications of such exception.

IV

Defendant did not argue that the officers used the unexercised right to charge the traffic violation as a subterfuge for search. Inasmuch as the evidence tends to convey covertly such an innuendo the court is compelled to dispose of such proposition. This presents the question as to the validity of the search requiring a finding that the officers used the traffic offense as an artifice to go on a general exploratory search thereby evading the constitutional proscription.

The officers found the defendant violating the law so their right to arrest is governed by Section 2935.03 R.C. This section commands that an officer arrest and detain a person found violating a law of Ohio. State v. Burns, 7 Ohio Misc.2d 275, 217 N.E.2d 57. A person found by a law enforcement officer violating a law of the State or an ordinance of a municipal corporation may be lawfully arrested by such officer without a warrant, regardless of what charge, if any, is thereafter made against him. State v. Hatfield, 1 Ohio App.2d 346, 204 N.E.2d 574.

The holding in State v. Hatfield, supra dispels the idea that subterfuge is a defense unless the evidence is clear and unequivocal or there is an expressed or implied statement that is tantamount to an admission on the part of the officers, such as was experienced in Amador-Gonzalez v. United States. 5 Cir., 391 F.2d 308.

Thus in Ohio if the initial arrest is lawful the arrestee suffers no deprivation of his rights unless the subsequent search without a warrant may be declared invalid.

State law determines the validity of arrests without a warrant. United States v. Pierce, D.C., 124 F.Supp. 264, 56 O.O. 44.

Arrest simply means to deprive a person of his liberty by legal authority. Thus any restriction of the right of locomotion the purpose of which is to apprehend or detain such person any reasonable length of time in order that he be forth-coming to answer an alleged or suspected crime is an arrest.

The State of Ohio authorizes summary arrests in traffic offenses. Thus if Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, requires that the rule requiring the arrest to be made prior to the search be applied in state courts the facts and circumstances clearly indicate that compliance therewith has been achieved in this case.

When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporary search for weapons or for the fruits of or implements used to commit a crime. State v. Bowman, 17 Ohio App.2d 195, 245 N.E.2d 380. The rule is extended to motor vehicles but the justifications therefor are absent where a search is remote in time and place from the arrest. State v. Call, 8 Ohio App.2d 277, 220 N.E.2d 130; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881.

V

According to Coles' evidence and argument his basic theory for the relief requested centers upon the proposition that the search was unreasonable.

In coming to grips with the determinable issue the court is compelled to recognize that in these days of high crime rates, effective law enforcement demands that the evil doer in our society who desires to destroy life and property should be...