State v. Mathews

• Decision Date: 28 April 1976
• Docket Number: No. 75-859,75-859
• Citation: 46 Ohio St.2d 72,346 N.E.2d 151,75 O.O.2d 150
• Parties: , 75 O.O.2d 150 The STATE of Ohio, Appellant, v. MATHEWS, Appellee.
• Court: Ohio Supreme Court

Page 72

46 Ohio St.2d 72

346 N.E.2d 151, 75 O.O.2d 150

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

No. 75-859.

Supreme Court of Ohio.

April 28, 1976.

Syllabus by the Court

A custodial search of the handbag of one lawfully arrested for a misdemeanor committed in the presence of a police officer is a reasonable search under the Fourth Amendment to the United States Constitution, and evidence so obtained is properly admissible in a criminal action.

On July 22, 1974, Detectives Fred Fulton and Paul Falzone of the Cleveland Police Department responded as a back-up unit to a police radio broadcast of gunshots fired at 10662 Helena Avenue.

Detective Falzone and two other police officers went into the building, and Detective Fulton took a position on the outside of the building to watch the windows. While standing there, Detective Fulton observed an elderly female emerge from the window of apartment No. 2, home of the appellee, with her back toward him. Detective Fulton, with gun drawn, confronted the woman and observed that she had on her person number slips. He then placed the woman under arrest.

Detective Falzone and the two other police officers entered apartment No. 2, and Detective Fulton followed shortly afterwards. Upon entering the apartment, Detective Fulton observed numerous books of policy slips, a chart for the bets, an adding machine, and two or three people in the room. Detective Fulton heard a toilet being flushed and asked who was in the bathroom. The appellee, Wanda Mathews, responded that she was using the bathroom. He asked her to stop flusing the toilet. However, she kept flushing it. At this time, Detective Fulton stepped inside the bathroom and told her she would have to come out. The appellee came out with Detective Fulton. She was clutching her purse 'under her arm as if she was hiding something.' Detective Fulton told appellee that she was under arrest for being in a policy house. Upon request, she refused to give the purse to him at that time and walked into the front room. After continued insistence, she surrendered the purse to Detective Fulton. She was asked, at this time, if she had a gun in her purse, and she said, 'Yes,' at which time Detective Falzone set the purse on the table, opened the purse, and pulled three loaded .38 caliber revolvers out of it.

Appellee was subsequently charged with three counts of carrying a concealed weapon, pursuant to R.C. 2923.12.

A hearing was held on the appellee's motion to suppress the evidence. The only witnesses were Detective Fulton, appearing for the state, and the defendant-appellee, Wanda Mathews. The trial court granted the appellee's motion to suppress at the conclusion of all the testimony, and the Court of Appeals, in a two-to-one division, affirmed that decision.

The cause is now before this court pursuant to the allowance of appellant's motion for leave to appeal.

John T. Corrigan, Pros. Atty. and Thomas J. Sammon, Cleveland, for appellant.

Floyd B. Oliver, Cleveland, for appellee.

J.J.P. CORRIGAN, Justice.

The appellant, state of Ohio, maintains that the search of Wanda Mathews' purse was 'incident' to her lawful arrest for being in a policy house; and, alternatively, that the search was made pursuant to the 'stop and frisk' procedures enunciated in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

The right of police officers to search a suspect pursuant to a lawful arrest has been a long-recognized exception to the Fourth Amendment warrant requirement. Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Jones v. United States (1958), 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

There have been, however, divergent tests for determining the reasonableness of warrantless searches incident to lawful arrests.

In a line of cases beginning with Agnello v. United States (1925), 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, and culminating in United States v. Rabinowitz (1950), 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the United States Supreme Court based its holdings on a determination of the reasonableness of the search under the circumstances in each case.

In a second line of cases beginning with Trupiano v. United States (1948), 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, and culminating in Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the court recognized the importance of the Fourth Amendment protection afforded by a prior requirement that officers procure a warrant before a magistrate, based upon probable cause. Chimel overrules Rabinowitz in that it requires a determination not as to the reasonableness of the search, but whether it was reasonable not to have procured a warrant under the circumstances of a particular case.

Specifically, Chimel held that it is reasonable not to have procured a warrant only where the search is incident to a lawful arrest and the search is limited to the arrestee's person and the area within the immediate control of the arrestee, in order to discover and remove weapons and to seize evidence to prevent its destruction or concealment.

More recently, in United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, the court expanded the limitations set forth in Chimel. The majority held that a full search of the person incident to a lawful custodial arrest is not only an exception to the warrant requirement of the Fourth Amendment but is also a 'reasonable' search under that amendment.

The court elaborated that the full custodial search was not limited-as in the case of a stop-and-frisk search incident to an investigative stop based on less than probable cause to arrest-to conducting a frisk of outer clothing only, and removing such weapons an officer may reasonably believe a suspect has in his possession, even though the arrest was for a traffic violation. Rather, since a custodial arrest based upon probable cause is a reasonable intrusion under the Fourth Amendment, the authority to search, based upon the need to disarm and discover evidence, does not depend on what a court might later decide was the possibility in a particular arrest situation that weapons or evidence would, in fact, be found on the person. The court stated further that the Fourth Amendment was not violated by the search in that case notwithstanding the fact that the officer had no reason to suspect that the defendant was armed and no further evidence of the crime in question could have been obtained by a search.

Applying the Robinson decision to the present case, it is apparent that, if appellee Wanda Mathews' arrest was lawful, then the search of the purse clutched under her arm, and under her immediate control, was not unreasonable.

The crime for which appellee Wanda Mathews was arrested, as stated by the arresting police officer, was for being in a policy house. The provisions of R.C. 2915.02 and 2915.03 cover gambling and operating a gambling house, respectively, and prohibit, among other things, the knowing possession of gambling tools, facilitation of gambling operations, and permitting the use of premises for the use of gambling. The premises in which the arrest was made was the apartment of the defendant and her husband. Defendant was charged with possession of policy slips and this charge was later nolled.

Violation of these sections constitutes a misdemeanor of the first degree for a first offense.

Police officers in Ohio, under R.C. 2935.03, have authority to arrest and detain persons found violating the laws of this state, or ordinances of municipal corporations, until a warrant can be obtained. This language, 'found violating,' has been interpreted to authorize a warrantless arrest for misdemeanor only where the offense has been committed in the officer's presence. State v. Lewis (1893), 50 Ohio St. 179, 33 N.E. 405. See, also Carroll v. United States, supra, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

In the present case, the record at the suppression hearing establishes that, when Detective Fulton entered apartment No. 2, which belonged to Wanda Mathews and her husband, he observed numerous books of policy slips, charts for bets, and an adding machine. Just before that, when he detained the woman who had climbed out of the apartment window with policy slips in her hand, she told him she had just placed a bet. Clearly, the officer observed the commission of a misdemeanor by Wanda Mathews.

The appellee argues that her occupancy of the bathroom in no way connected her with the gambling operation. Subsequent testimony adduced at the hearing established that the apartment was rented under a fictitious name but that the light bill for the apartment was addressed either to the appellee or her husband.

The crime in question being one of possession of gambling equipment and the permissive use of premises for gambling, the occupants of the premises are clearly the parties subject to the proscriptions of the statutes. The mere fact that the appellee was in another room at the time does not enable her to escape liability for arrest.

Detective Fulton's entry into the bathroom was not a search of the apartment. The toilet flushing alerted him to the presence of another occupant of the apartment. His entry into the bathroom did not result in the production of any other evidence. Rather, it was necessary to the actual or constructive seizure or detention of the appellee, thus effecting an arrest. Jenkins v. United States (C.A. 10, 1947), 161 F.2d 99; Alter v. Paul (1955), 101 Ohio App. 139, 135 N.E.2d 73.

The only search complained of in this case was that of the appellee's purse. This custodial search was incident to appellee's lawful arrest under the rule announced in United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

The only other possible...