City of Cleveland v. Lopez, No.: 2018 TRC 22637

CourtCourt of Common Pleas of Ohio
Writing for the CourtGROVES, Emanuella, J.
Citation122 N.E.3d 685
Parties CITY OF CLEVELAND, Plaintiff v. José LOPEZ, Defendant
Decision Date22 February 2019
Docket NumberNo.: 2018 TRC 22637,2018 CRB 12453

122 N.E.3d 685

José LOPEZ, Defendant

No.: 2018 TRC 22637
2018 CRB 12453

Ohio Municipal Court, Cleveland. Cuyahoga County.

February 22, 2019

122 N.E.3d 686


GROVES, Emanuella, J.

The defendant filed a Motion to Suppress, arguing that an Ohio State Highway Patrol trooper had no probable cause to arrest him, challenging the results of the field sobriety tests, and requesting exclusion of evidence and statements made by the defendant.

The facts from which this case arose are as follows:

On July 25, 2018 at 1:00 a.m., the defendant was stopped by an Ohio State Highway Patrol trooper for driving 102 MPH. When the trooper spoke to defendant he smelled marijuana and believed that the defendant's speech was slurred. The trooper asked the defendant to exit the vehicle. The trooper immediately handcuffed the defendant. The defendant asked, "Is there a reason I'm being arrested?" The trooper responded, "You are not being arrested. I'll explain everything in a second." The defendant further stated, "I gave you my license, I gave you my CCW. There's nothing I did wrong. There's no reason for you to handcuff me." The trooper again told defendant he was not under arrest. He advised defendant he was under investigative detention and advised him of his rights. The trooper then proceeded to pat down the defendant. The pat-down extended to the trooper searching inside all of defendant's pants pockets, including the smallest. The trooper reached inside each pocket. The trooper pulled out a pack of cigarettes and searched through the package. The trooper then pulled out the defendant's paper money and unfolded it. He also pulled out the lining of the pocket. During the search, the trooper asked the defendant several times whether he had marijuana on him. It was quite obvious from the dash cam that the trooper was searching for the marijuana he smelled. He did not find any.

Next, the trooper ordered the defendant to open his mouth and shined a flashlight in it. The trooper stated he was looking for "raised taste buds." The trooper then placed the defendant in the rear of the Highway Patrol cruiser, while the defendant was still handcuffed. The trooper and

122 N.E.3d 687

another trooper searched the front and back seats and trunk of the defendant's car. Again, the troopers found nothing. Afterwards, the trooper removed the defendant from the cruiser. The trooper asked him if he had anything to drink. The defendant responded, "Earlier." The trooper removed the handcuffs from the defendant and performed two standardized field sobriety tests: horizontal nystagmus gaze and walk and turn. The trooper testified he decided to forego the one-leg stand because of defendant's "agitation." The dash cam did not show that defendant failed to cooperate. However, it did show the defendant repeatedly stating he did not do anything. The trooper placed defendant under arrest for OVI.

During the ride to the Patrol station, the defendant admitted that he had marijuana and gave it to the officers at the station. The marijuana was in the defendant's crotch. Once the defendant was released, the trooper stated that he found suspected crack cocaine in the back seat of the cruiser. The trooper testified that the suspected drug was lost or stolen, so the defendant was not charged with that offense.

The critical issue in this case is at what point was the defendant placed under arrest. The defendant argued he was under arrest after he was handcuffed, Mirandized, searched and placed in the Highway Patrol cruiser. These police actions were taken immediately after the defendant was ordered to exit his vehicle. On the other hand, the City of Cleveland argued the defendant was not arrested until the end of the roadside encounter. This occurred after defendant's exit from the cruiser, removal of handcuffs and completion of field sobriety tests.

Just as in Terry v. Ohio , the court's first task is to establish at what point in this police encounter does the Fourth Amendment become relevant.1 The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 10 of the Ohio Constitution, protects individuals from unreasonable searches and seizures.2 Ordinarily, police must obtain a warrant based on probable cause before they can arrest or search.3 An investigative stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion that the person stopped is or is about to be engaged in criminal activity.4

As the U.S. Supreme Court has held, "The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances."5 The Court also stated, "The manner in which the seizure and search were conducted, is of course, a vital part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds

122 N.E.3d 688

as much by limitations upon the scope of governmental actions as by imposing preconditions upon its initiation."6 The entire deterrent purpose of the rule - excluding evidence seized in violation of the Fourth Amendment - rests on the assumption that "limitations upon the fruit to be gathered tend to limit the quest itself."7 In essence, a police officer may conduct a brief warrantless search of an individual's person for weapons only if the officer has a reasonable and articulable suspicion that the "individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others."8 Such a limited search is not intended to discover evidence of a crime, but to allow the officer to pursue his duties "without fear of violence."9

In Terry , the court noted that the officer "did not place his hands in their pockets... never did invade Katz' person beyond the outer surface of his clothes10 ...[and] did not conduct a general exploratory search for whatever evidence of criminal activity he might find."11 That did not happened here.

Given every court's duty of review as set forth in Terry , this court must evaluate at what point, if any, was the Fourth Amendment violated. Here, the trooper handcuffed and searched the defendant immediately upon defendant exiting his car. Unlike the officer in Terry , the trooper went into every pocket of the defendant's pants. As noted above, the trooper searched through the items found in the defendant's pocket. The trooper emptied the defendant's pockets and even pulled out the lining of the pockets to ensure he found everything possible in them. Clearly this search went beyond a search for weapons. This was a full custodial search, even though the trooper assured the defendant he was not in custody. The search went beyond a quest for weapons and became a general exploratory search. The analysis of the nature of the search is important because the search is one of the police actions which must be considered in the overall determination of at what point the defendant was actually placed under arrest.

Before searching the defendant, the trooper handcuffed him. It has long been held that a police officer during the course of a lawful investigative stop may take reasonable measures in order to ensure his safety while a suspect is being detained.12 Police may handcuff a suspect where the use of such restraint is reasonably related to ensuring the safety of police officers during an investigative detention.13 However, each situation is subject to review...

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