State v. John A. Wamsley
| Decision Date | 08 May 1989 |
| Docket Number | CA88-11-026,89-LW-1258 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. John A. WAMSLEY, Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
R David Picken, Madison County Prosecutor, Stephen L. Hume London, for plaintiff-appellee
Hyatt Legal Services, Ben A. Rainsberger, Columbus, for defendant-appellant.
This cause came on to be heard upon an appeal, transcript of the docket, journal entries and original papers from the Madison County Court of Common Pleas, transcript of proceedings, and the briefs of counsel, oral argument having been waived.
Now therefore, the assignment of error having been fully considered is passed upon in conformity with App.R. 12(A) as follows:
On December 24, 1987, patrolman Theron Ward of the West Jefferson Police Department was conducting surveillance of a vehicle parked behind a bar at 1:15 a.m. During this surveillance, Ward noticed several people getting in and out of a van that was parked nearby. Ward drove past the van and noticed that the occupants switched off an interior light when he got near. The scenario was repeated when Ward drove by a second time. Ward parked his cruiser and approached the rear of the van on foot. Through the rear window, Ward observed a man in the passenger seat put his face in his lap. Ward walked around to the side of the van, looked in the rolled-down window, and observed defendant-appellant, John A Wamsley, ingesting a white powder that was arranged in a straight line on a black box on appellant's lap. Ward reached in the window and seized the box with the powder on it, then called for a backup. When the backup arrived, Ward searched appellant and discovered in his coat pocket a paper bundle that contained a small amount of white powder. Ward released appellant without making an arrest, but retained the bundle and powder.
A laboratory analysis disclosed that the bundle contained cocaine. Appellant was arrested on January 13, 1988 and charged with possession of cocaine in violation of R.C 2925.11. After appellant's motion to suppress was denied, he entered a plea of no contest, but reserved the right to appeal the denial of his motion to suppress. The trial court accepted the plea, found appellant guilty, and sentenced him to six months in prison. The court then suspended the sentence and placed appellant on probation for a period of three years. Appellant appealed and now raises a single assignment of error which challenges the denial of his motion to suppress the evidence seized from his coat pocket.
The Fourth Amendment prohibits unreasonable searches and seizures.®1¯ A warrantless search or seizure is considered per se unreasonable unless it falls within one of the specifically established exceptions to the Fourth Amendment's warrant requirement. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507; Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022. Appellee argues that the instant case falls within the exception delineated in Cupp v. Murphy (1973), 412 U.S. 291, 93 S.Ct. 2000.
In Cupp, the defendant, Daniel Murphy, voluntarily appeared at the police station for questioning in regard to the strangulation death of his wife. Shortly after his arrival, the police noticed a dark spot on Murphy's finger. Suspecting that the spot might be dried blood or other evidence of strangulation, the police asked Murphy if they could take a sample of scrapings from his fingernails. Murphy refused, but the police proceeded, without a warrant, to take the samples. Subsequent analysis of the samples revealed traces of skin and blood cells and fabric from the victim's nightgown. This incriminating evidence was admitted at trial and Murphy was convicted of second-degree murder.
The Supreme Court found the search of Murphy's fingernails to be constitutionally permissible under the principles of Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, which recognized an exception to the warrant requirement when a search is made incident to a lawful arrest. Although no formal arrest was made in Cupp until the fingernail scrapings were analyzed, the court upheld the search because the police had probable cause to arrest Murphy prior to the search,®2¯ the search was limited in scope, and the evidence was readily destructible. Cupp, supra, at 296, 93 S.Ct. at 2004.
We find the Supreme Court's holding in Cupp to be dispositive. Upon observing appellant ingest a white powder through a rolled-up dollar bill,...
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