State v. Schultz

• Decision Date: 19 March 1985
• Docket Number: No. 83AP-757,83AP-757
• Citation: 23 Ohio App.3d 130,491 N.E.2d 735
• Parties: , 23 O.B.R. 242 The STATE of Ohio, Appellee, v. SCHULTZ, Appellant. *
• Court: Ohio Court of Appeals

Page 130

23 Ohio App.3d 130

491 N.E.2d 735, 23 O.B.R. 242

The STATE of Ohio, Appellee, v. SCHULTZ, Appellant. ^*

No. 83AP-757.

Court of Appeals of Ohio, Tenth District, Franklin County.

March 19, 1985.

Syllabus by the Court

1. A search warrant to search premises for contraband implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The term "occupant" refers not merely to the owner of the residence, but may include other individuals who may be deemed to have such a relationship to the premises to be searched that the police may make a reasonable connection between the person and his property within the house.

2. The authority of a valid search warrant to search an apartment extends to the closets of that apartment, and necessarily involves searching any garments therein for the contraband which was the object of the search warrant.

3. The brief questioning by the police of an individual who is under temporary restraint, when the purpose of such questioning is to determine the ownership of one of several coats which were being searched under the authority of a valid search warrant, constitutes an intermediate level of police-citizen interaction which is often referred to as "investigative detention," and such questioning does not invoke the full panoply of Fourth Amendment protections so as to require the giving of Miranda warnings.

Michael Miller, Pros. Atty., and Karen L. Martin, Columbus, for appellee.

J. Boyd Binning, Columbus, for appellant.

MOYER, Judge.

This case is before us on defendant-appellant's appeal from a judgment of the Common Pleas Court of Franklin County, finding defendant, Edward S. Schultz, guilty of one count of drug abuse, i.e., possession of cocaine (R.C. 2925.11). Defendant's motions to suppress evidence and statements obtained by Columbus police officers having been overruled by the trial court, judgment was found upon defendant's plea of no contest.

At approximately 4:00 a.m., March 23, 1983, several Columbus police officers executed a search warrant to search the residence of Mr. and Mrs. Daniel Romuno for cocaine. Defendant was known to have been at this residence since 8:30 the previous evening, although he was not a regular resident. The officers had previous information from an officer of the New York State Police that defendant was known to carry a weapon. They also had information from J & J Security at the Columbus Airport that two subjects, one of whom was defendant, had several times boarded planes to Florida while carrying large amounts of cash. The officers had not applied for a search warrant on defendant as an individual because they did not believe that defendant brought cocaine into the house on that evening.

When the officers entered the premises, they secured the four occupants (the Romunos, their two year old, and defendant); they handcuffed defendant, brought him downstairs, and seated him in a chair for the duration of the search. The handcuffing was performed for security reasons, i.e., for the safety of the officers and others on the premises. The officers testified that weapons are very often involved in or found during drug traffic arrests, and that, in fact, four guns were found during the search that evening. With the additional knowledge of defendant's propensity to carry weapons, referred to above, the officers felt that his restraint was necessary to permit the safe and swift execution of the search warrant.

The search lasted approximately one hour and fifteen minutes; defendant remained handcuffed throughout. In the process of searching the premises, the officers found a coat in a downstairs closet as they were searching several coats. They asked defendant if that particular coat was his, and he replied in the affirmative; an officer then reached into the pockets of the coat, where he found white paper folded around a white powder which appeared to be cocaine. The officer asked defendant if that was his cocaine, to which he replied that it was. At that point, defendant was informed that he was under arrest. He had not been placed under arrest previous to that time, and he had not been read his Miranda rights before the officers asked him about the coat.

Defendant has raised the following two assignments of error:

"1. The search of the defendant's coat, conducted by police officers, was unreasonable and in violation of the defendant's Fourth and Fourteenth Amendment rights under the United States Constitution. For this reason the trial court erred in denying the defendant's motion to suppress evidence.

"2. The defendant was interrogated by Columbus police officers without benefit of Miranda warnings and subsequent to an unlawful arrest in violation of the defendant's Fourth, Fifth and Fourteenth Amendment rights under the United States Constitution. For this reason the trial court erred in denying the defendant's motion to suppress the statements made by defendant."

In his first assignment of error, defendant argues that the contraband evidence obtained from his coat should have been suppressed, as it resulted from an illegal search and seizure. To support his allegation that the search was unreasonable, defendant relies upon the following theories: first, that his detention and restraint, i.e., being in handcuffs, was too long in duration to qualify as the brief stop and frisk envisioned by the court in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 . He alleges that this invasion of his privacy was, in effect, an illegal arrest, rather than merely an investigative stop. Second, defendant argues that, whatever security reasons caused the officers to handcuff defendant, there was no safety motive behind the search of his coat and the search was conducted solely for the purpose of locating contraband.

Defendant cites Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 , in support of his argument that the mere presence of an individual in a place where criminal activity is suspected is not sufficient justification to seize and search that person. He further relies upon Ybarra v. Illinois (1979), 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238, and this court's decision in State v. Croft (Apr. 1, 1982), Franklin App.No. 81AP-803, unreported, for the proposition that a warrant to search premises may not be extended to search those who are simply found therein.

The defendants in Ybarra and Croft were both merely patrons at public establishments, and were detained and searched without any further reason for the police to believe they had any particular connection to either the premises or the criminal activity suspected at the establishment. Ybarra is often cited for the proposition that a search of the premises may not be extended to search persons found on the premises, absent probable cause, or at least sufficient reason, to believe the person is presently armed and dangerous. These cases may easily be distinguished from the case before us. The defendant in the case before us was in a private home, rather than a public establishment; he was apparently staying at least overnight in the house, rather than being a transitory passerby; the police in Ybarra and Croft had no previous knowledge of the defendants, whereas in this case the police had prior information from a named officer of the New York State Police that defendant carried weapons and was thought to be engaged in drug trafficking.

The above reasons would appear to meet the minimal requirements set forth in Ybarra that the police must have had reason to believe that defendant was armed and dangerous, even though they might temporarily have curbed his potential to harm them or others in the house. Sibron, supra, upon which defendant places much reliance, refers to Terry v. Ohio, supra, to indicate that a search may legitimately be extended from premises to persons if the police officer is "able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Sibron, supra, 392 U.S. at 64, 88 S.Ct. at 1903. The facts set forth above, which are repeated throughout the record, are sufficiently specific to meet this criterion and to justify a personal search, had one actually been made.

The fact remains, however, that the officers, although justifiably restraining defendant for safety reasons, made no search of his actual person but merely searched his coat, which was removed from his person and hanging in a closet with other garments. This is a significantly less intrusive official act than a search of the person or a Terry-type pat down, acts which themselves were not considered tantamount to an illegal arrest. Therefore, it would appear that defendant was not held under illegal arrest by being placed under detention during the execution of the search warrant, which involved the search not of his person, but of his coat, and while his coat was some distance from him.

Defendant has argued that his detention, and the search of his coat, are not justified under the authority of a warrant to search the premises, as he was not a resident of the apartment. Michigan v. Summers (1981), 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340, is referred to by both the defendant and the state in their briefs. That case held that a warrant to search premises for contraband implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. Id. at 705, 101 S.Ct. at 2595. Defendant attempts to restrict this opinion to mean that only the actual owner of the premises could be detained; thus, defendant, as a visitor, could not be stopped. A strict application of this interpretation of the law would allow the police to detain only the titular owner of a residence, allowing all others occupying the premises for any period of time to escape.

Although it is not perfectly clear in what sense the court...