State v. Lewis

• Decision Date: 13 May 1970
• Docket Number: No. 69-202,69-202
• Citation: 258 N.E.2d 445,22 Ohio St.2d 125
• Parties: , 51 O.O.2d 209 The STATE of Ohio, Appellee, v. LEWIS, Appellant.
• Court: Ohio Supreme Court

Page 125

22 Ohio St.2d 125

258 N.E.2d 445, 51 O.O.2d 209

The STATE of Ohio, Appellee, v. LEWIS, Appellant.

No. 69-202.

Supreme Court of Ohio.

May 13, 1970.

Syllabus by the Court

1. Where police officers have reasonable grounds to believe that an automobile which they have seized was an instrumentality used in the commission of the crime for which the owner of the automobile was arrested, the removal from the exterior of the automobile of paint samples for scientific examination constitutes neither a search nor a seizure, and a search warrant is not required to validate such examination even though the examination is conducted at a time and place remote from the time and place of the arrest of the owner and seizure of the automobile.

2. The hearsay rule is applicable to an extrajudicial statement which is offered for the purpose of establishing the truth of the matter asserted therein, but where a witness testifies as to the contents of a telephone call received by her from a person not identifiable by the witness, and such testimony is admitted, not for the purpose of proving the truth of the matter stated by the caller but only for the purpose of establishing that the call was made, such testimony is not in violation of the hearsay rule.

In June 1967, Arthur Ben Lewis, Jr., appellant herein, the owner of Graham Auto Specialists, Inc., Columbus Ohio, agreed to sell that business to one Jack Smith. In contemplation of the sale, Smith employed Paul Radcliffe, an accountant, to examine the books of the business.

Radcliffe obtained the necessary records from Lewis on either July 17th or 18th at the business location of Graham Auto Specialists, Inc.

On July 19, Radcliffe was found dead on the bank of the Olentangy River alongside state route No. 315 near an abandoned one-story concrete block building. Radcliffe had been slain by shotgun blasts and his body dragged over the embankment. His car was found near his body, over the embankment.

Appellant was arrested on October 10, 1967, and subsequently indicted for murder in the first degree for the killing of Radcliffe.

A jury trial resulted in a verdict of guilty, with a recommendation of mercy.

Upon appeal, the Court of Appeals affirmed the judgment.

The cause is before this court upon an appeal as of right and pursuant to the allowance of a motion for leave to appeal.

Henry E. Shaw, Jr., Pros. Atty., and R. Kenneth Kunkel, Delaware, for appellee.

Tyack, Scott & Colley and Paul Scott, Columbus, for appellant.

CORRIGAN, Justice.

Six questions of law are asserted in this appeal in support of certain contentions of error in connection with the trial.

The first proposition of law set forth by appellant is that the warrantless seizure of his automobile, which was parked on a private parking lot one-half block from the place of his arrest, was not incident to his arrest and therefore violated his rights under the Fourth Amendment to the Constitution of the United States.

At appellant's trial, evidence was introduced to the effect that paint samples taken from the exterior of his car after it was seized were similar to paint samples found on the car of the deceased at the scene of the crime. Also, there was testimony was appellant's car was similar to one seen near the scene of the crime shortly after shots were heard in the vicinity.

Appellant contends that the trial court committed prejudicial error in overruling his motion to suppress the evidence in relation to the paint samples and photographs of the car.

It is appellant's position that the seizure in the instant case was not incident to the arrest because the seizure was not contemporaneous with the arrest. Appellant cites Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

Stoner v. California, supra, holds that 'a search * * * (without a warrant can be justified as an) incident to arrest only if substantially contemporaneous and confined to the immediate vicinity of arrest.'

In Chimel v. California, supra, defendant's entire house was searched without a warrant immediately following his arrest on a burglary charge. The Supreme Court reversed the judgment of conviction on the ground that the scope of the search unreasonably extended beyond '* * * the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.'

Neither Stoner nor Chimel concerns search and seizure of an automobile. Preston v. United States, supra, however, does. In Preston, after the occupants of a car were arrested for vagrancy, the police officers had the car towed to a garage where it was subjected to a warrantless search. It was held that the evidence obtained in that search was inadmissible because the search was too remote in time or place to be treated as incidental to the arrest.

Subsequently, in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, the

Supreme Court upheld a warrantless search of an automobile occurring a week after the arrest where the car had been impounded as evidence under a statute providing for seizure and forfeiture of vehicles used in violation of state narcotic laws.

At the outset, we note that there is a distinction between the seizure and search of a car simply for discovery of evidence of a crime in which the use of the car is merely indicental, and the seizure and search of a car where it is claimed that the car itself was an integral element in the commission of the crime, i. e., and instrumentality of the crime.

In the instant case, the investigating authorities had reasonable grounds to believe that the car had been used in furtherance of the commission of the crime; that because it was used to push the victim's car over the river embankment, it was an instrumentality of the crime. Therefore, paint samples were taken from the exterior of the car to compare with paint found on decedent's car.

In People v. Teale, 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564, the Supreme Court of California upheld the warrantless scientific examination of an automobile which was 'undertaken 10 days after defendant's apprehension and at a place far removed from the scene of his arrest.'

In the course of the opinion, at page 507, 75 Cal.Rptr. at page 178, 450 P.2d at page 456 the court said:

'We have concluded that in resolving the question of the legality of the scientific examination of Mrs. Chapman's automobile and of the admissibility of the criminalist's testimony in respect thereto, Preston Burke (61 Cal.2d 575), and the myriad of cases spawned by them are inapplicable since such scientific examination constituted neither a search nor a seizure within the meaning of the Fourth Amendment.

'As we have indicated above, two objects in defendant's possession and control were seized and taken from him when he was arrested. The first was a .32 caliber automatic pistol * * *. The second was the automobile itself, of which subsequent examination showed Billy Dean Adocock to have been an occupant at the time he was shot. Clearly the seizure of both of these objects was incidental to the arrest of defendant. Both were seized as evidence connecting defendant with the alleged crimes. Both could have been introduced at trial as evidence. We can conceive of no reason why a distinction should be drawn between these two evidentiary objects on the basis that one is an automobile. Since it is plainly within the realm of police investigation to subject objects properly seized to scientific testing and examination * * * defendant cannot reasonably contend that such testing and examination was in derogation of his Fourth Amendment rights, and that evidence obtained thereby was therefore inadmissible. * * *

'We do not consider that our conclusion of this point evolves from novel principles. In our recent case of People v. Webb, (1967), 66 Cal.2d 107, at footnote 3 on pages 123-124, 56 Cal.Rptr. 902, on page 913, 424 P.2d 342, on page 353, we reviewed four cases, two from this state, and, concluding that they represented 'further qualification of the Preston rule,' went on to summarize their rationale as follows: 'The implication is that when the police lawfully seize a car which is itself evidence of a crime rather than merely a contained or incriminating articles, they may postpone searching it until arrival at a time and place in which the examination can be performed in accordance with sound scientific procedures.' We today make explicit what we recognized by implication in Webb.'

Subsequently, at page 511, 75 Cal.Rptr. at page 180, 450 P.2d at page 458 in the opinion, the court summarized as follows:

'* * * When officers, incidental to a lawful arrest, seize an automobile or other object in the reasonable belief that such object is itself evidence of the commission of the crime for which such arrest is made, any subsequent examination of said object undertaken for the purpose of determining its evidentiary value does not constitute a 'search' within the meaning of the Fourth Amendment.'

For other authorities supporting this principle, see State v. McKnight, 52 N.J. 35, 243 A.2d 240; State v. Hoy, 199 Kan. 340, 430 P.2d 275; Johnson v. State, 238 Md. 528, 209 A.2d 765; State v. McCoy, 249 Or. 160, 437 P.2d 734; State v. Gibson (Wash.), 76 Wash.Dec.2d 981, 459 P.2d 22; and State v. Warner (Me.), 237 A.2d 150.

We agree with the reasoning of the court in Teale, and conclude that the examination by the police of an automobile which is an instrumentality of a crime, for evidence in connection with the crime in which the automobile was used, is not an unlawful search and seizure, even though the examination is conducted at a time and place remote from the time and place of the arrest of the owner and seizure of the automobile.

Since the seized car was an instrumentality...