State v. Bowman

• Citation: 17 Ohio App.2d 195,245 N.E.2d 380
• Parties: , 46 O.O.2d 271 The STATE of Ohio, Appellee, v. BOWMAN et al., Appellants.
• Decision Date: 14 January 1969
• Court: United States Court of Appeals (Ohio)

Page 195

17 Ohio App.2d 195

245 N.E.2d 380, 46 O.O.2d 271

The STATE of Ohio, Appellee, v. BOWMAN et al., Appellants.

Court of Appeals of Ohio, Second District, Montgomery County.

Jan. 14, 1969.

Syllabus by the Court

1. The constitutional validity of an arrest depends upon the existence of facts and circumstances which would lead a prudent person to believe that an offense was being committed.

2. When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporary search for the implements used to commit a crime.

3. In a prosecution under Section 2907.11, Revised Code, intent may be inferred from the circumstances surrounding the possession of the tools.

Lee C. Falke, Pros. Atty., and Herbert M. Jacobson, Dayton, for appellee.

John R. Ensley, Dayton, And Eugene D. Smith, Cincinnati, for appellants.

KERNS, Judge.

This cause originated in the Court of Common Pleas of Montgomery County wherein the defendants, appellants herein, Jerry Bowman, Chester Hoover and Harley David Hinkley, were tried and convicted of violating Section 2907.11, Revised Code, which provides that:

'No person shall have or keep in his possession tools, implements, or other things used by burglars for house breaking, forcing doors, windows, locks, or buildings, or other places where goods, wares, merchandise, or money are kept, with the intention of using such tools or implements burglariously.'

At about 3:15 a. m. on February 17, 1967, Officers Mundhenk and Haley of the Dayton Police Department were on patrol in the area of Mound and Third Streets in the city of Dayton. While waiting at the stop sign on Mound Street, they observed a 1957 Buick station wagon with three occupants proceeding eastwardly on Third Street. A loud muffler on the Buick attracted the attention of the officers, and they followed the car to a point on Interstate Route 75 South where the car was stopped for the purpose of giving the operator a ticket for an anti-noise violation.

In order to assist the driver of the stopped vehicle in finding his identification, Officer Mundhenk directed his flashlight toward the interior of the car where he noticed a brown canvas bag with two large crowbars visibly attached thereto. At this point, the driver of the automobile was ordered out of the car and was 'frisked.' A penlight was found in his pocket, which had an end covered or encircled with tape.

The driver, Hoover, was then taken to the police cruiser, whereupon Hinkley and Bowman were asked to step out of the Buick. They were 'frisked' and likewise removed to the police cruiser.

Officer Mundhenk returned to the station wagon and searched the brown bag which had 'several handles on top and two large crowbars attached to the side.' Noting that the bag contained a number of tools, Officer Mundhenk asked Officer Haley to observe the tools, after which Officer Haley advised the three defendants of their constitutional rights.

Thereafter, a further search of the bag and the automobile disclosed a tear-gas gun, two crowbars, a nest of saws, a six-pound sledge hammer, a three-pound sledge hammer, a masonry-type hammer, highspeed drills, punches, two pencil-type flashlights, a pair of brown gloves, a fourteen-inch screwdriver, gas pellets, a Kentucky license plate, and a business card of one Fred G. Gurekunsi, who apparently provides 'keys and locks for every need.' The evidence further discloses that some of these items were altered in such a manner as to make them particularly useful in the commission of a burglary.

The defendants made a timely motion to suppress any evidence acquired as a result of the search of the station wagon, and, after hearing testimony upon the motion, the trial court admitted the evidence, in the form of seventeen exhibits, at the trial of the case.

The defendants argue generally that evidence acquired as a result of an unreasonable search must be suppressed, and, in the abstract, this contention is no longer a proper subject of serious debate. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; State v. Vernius, 177 Ohio St. 155, 203 N.E.2d 241. However, the facts of a given case must give justification to the application of the rule.

The governing principles to be applied in cases of this kind are discussed in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, where it is said:

'* * * The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner's arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it-whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134. 'The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating * * * often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.' Brinegar v. United States, supra, 338 U.S. at 176, 69 S.Ct. at 1311.'

When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporary search for...