OPINION
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS,
Attorney for Plaintiff-Appellee
RICHARD A. NYSTROM,
Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Kevin D. Shipp appeals from his conviction and sentence for Improper Handling of a Firearm in a Motor Vehicle, following a no-contest plea. Shippcontends that the trial court erred by overruling his motion to suppress evidence seized as a result of the seizure of his wallet from his pocket and the search of the glove compartment of the motor vehicle he was driving.
{¶ 2} We conclude that the trial court did not err in overruling Shipp's motion to suppress evidence, because there was probable cause to both arrest Shipp and search the glove compartment. Accordingly, the judgment of the trial court is Affirmed.
I. Shipp Commits a Traffic Violation and Volunteers InformationAbout a Gun in the Glove Compartment {¶ 3} In its decision overruling Shipp's motion to suppress (Dkt. 14, p. 1-3), the trial court made the following findings of fact:
On December 1, 2010 at approximately 11:30 pm, [Dayton Police] Officer [Daniel] Zwiesler observed Mr. Shipp make a right hand turn into the Big E Bar on North Main Street in the City of Dayton without continuously signaling for at least 100 feet his intention to turn. Officer Zwiesler, with probable cause to believe Mr. Shipp was in violation of Dayton [Revised Code of General Ordinances] Section 71.31 and/or R.C. Section 4511.39, initiated a traffic stop. When Mr. Shipp could not produce a valid Ohio Driver's license upon request, Officer Zwiesler ordered him out of his car, removed Mr. Shipp's wallet from his pants pocket and located his Ohio Photo ID. In response to Officer Zwiesler's call for backup, Trotwood PD Officer [Matthew] Barnes [FN1] arrived and placed Mr. Shipp into the back of his Trotwood cruiser while Officer Zwiesler called in to determine if Mr. Shipp had a valid OhioDriver's License. He did not and Officer Zwiesler made the decision to arrest Mr. Shipp for driving illegally and to tow and inventory the vehicle pursuant to the [Dayton Police Department's] General Order/Towing Motor vehicles ("the Policy").
[FN1] Among other responding officers including DPD Officers [Gordon L.] Cairns and [Chad] Knight.
Officers Zwiesler and Cairns began a property inventory [FN2] pursuant to the Policy at which time Mr. Shipp became visibly agitated and began shouting. Because he was in Officer Barnes' cruiser with the windows rolled up [FN3], Officer Zwiesler could not hear what Mr. Shipp was saying. DPD Officer Knight was standing next to Barnes' cruiser, however, and heard Mr. Shipp yelling that the Officer's "search" of his vehicle was illegal because they had no warrant and they could not use the gun in the glove box against him. Officer Knight informed Officer Zwiesler of Mr. Shipp's statements regarding the gun whereupon Officers Zwiesler and Cairns each pulled down the right corner of the locked glove box and were able to see with flashlight illumination a gun and box of ammunition in the glove box. Because none of Mr. Shipp's keys opened the glove box, Officer Zwiesler pried the box open using a screw driver and recovered the gun and ammunition. The gun had six live rounds chambered before Officer Zwiesler unloaded the weapon.
[FN2] Officer Barnes and Officer Harvey may also have assisted at some point during the property inventory.
[FN3] It was a cold December night.
{¶ 4} There is competent, credible evidence in the record to support the trial court's findings of fact.
II. The Course of Proceedings {¶ 5} Shipp was charged by indictment with one count of Having a Weapon While Under a Disability, with a previous conviction for a drug offense, in violation of R.C. 2923.13(A)(3); and with one count of Carrying a Concealed Weapon, in violation of R.C. 2923.12(A)(2). He moved to suppress the evidence obtained following the traffic stop, contending that it was obtained as the result of an unlawful search of the glove compartment of the motor vehicle he was driving.
{¶ 6} After the trial court overruled his motion to suppress, Shipp pled guilty to Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C. 2923.16(B), a felony of the fourth degree, with which he had been charged by a bill of information, Shipp having waived indictment on that charge. The other charges were dismissed.
{¶ 7} Apparently realizing that he had inadvertently failed to preserve the suppression issue for appeal by pleading guilty, Shipp moved to withdraw his plea, and the trial court granted his motion. He was indicted for Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C. 2923.16(B), the bill of information charging him with that offense was vacated, and the matter was set for trial.
{¶ 8} Before trial, Shipp pled no contest to the charge of Improper Handling of a Firearm in a Motor Vehicle. The trial court entered a judgment of conviction, and sentenced Shipp to community control sanctions for a period not to exceed five years.
{¶ 9} From his conviction and sentence, Shipp appeals.
III. Probable Cause Existed Both to Arrest Shippand to Search The Glove Compartment
{¶ 10} Shipp's sole assignment of error is as follows:
WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE FRUIT OF A WARRANTLESS SEARCH AND THEREBY PRECLUDED DEFENDANT'S CONSTITUTIONAL RIGHTS TO UNREASONABLE SEARCHES [sic] AND DUE PROCESS UNDER THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO STATE CONSTITUTION. (Italics in original.)
{¶ 11} In ruling on a motion to suppress, "the trial court assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994) (Citation omitted.) Accordingly, when we review suppression decisions, "we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard." Id.
{¶ 12} Although he frames his assignment of error as a question, and labels it "Issue I," it is clear that Shipp is contending that the firearm found in the glove box, which is the basis for the charge of which he was convicted, was obtained as the result of an unlawful search and seizure. He makes a number of arguments in support of his assignment of error.We will address the arguments in the order in which Shipp presented them in his brief.
A. The Removal of Shipp's Wallet {¶ 13} Shipp contends that Officer Zwiesler had no proper basis for seizing Shipp's wallet from Shipp's pants pocket.
{¶ 14} Officer Zwiesler was asked, on re-direct examination, why he took Shipp's wallet from Shipp's pants pocket (Tr. 37):
Q. All right. Now, what was your reasoning into reaching into his pocket?
A. I had asked him where his ID was. He told me that it was in his back pocket in his wallet and I retrieved it -
Q. Did you want- -- I'm sorry, go ahead.
A. And I retrieved it.
Q. Did you want him retrieving it?
A. No, I did not.
Q. Why is that?
A. I don't want people reaching into pockets for my safety. Some weapons, knives, razor blades, some people carry box cutters that are - that they use at work or any other improvised weapon. I could see the wallet and so I removed it.
{¶ 15} Officer Zwiesler testified that he had not met Shipp before, and did not know anything about him. Earlier on re-direct, the State attempted to elicit testimony from OfficerZwiesler concerning the high-crime character of the area in which Shipp was stopped, but the trial court sustained an objection to this line of testimony on the ground that it was outside the scope of cross examination.
{¶ 16} On Shipp's re-cross-examination of Officer Zwiesler, the following exchange occurred (Tr. 41-43):
Q. Officer, you say you don't want people you don't know reaching into a pocket to get their IDs out. Do you ever make a traffic stop of a person that you don't know on sight?
A. Yes.
Q. Do you routinely reach into people's pockets to take their driver's licenses out?
MR. PARKER [representing the State]: Objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: Depending upon where I'm at.
BY MR. HODGE [representing Shipp]:
Q. On a traffic stop?
A. Correct.
Q. Turn signal violation, depending upon location, you -- you go into people's pockets?
A. Yes.
Q. Okay. Do you always detain those people in a - in some manner before remov- -- or after removing that identification?
MR. PARKER: I'm going to have to object to that, Your Honor. It's highly speculative on every occasion that -- the officer's made thousands of stops -
THE COURT: Overruled.
THE WITNESS: Could you ask your question again, sir?
MR. HODGE: Yes.
BY MR. HODGE:
Q. Do you always detain those people that you remove -- that you personally remove identification from until you can verify identification?
A. Yes, generally that's what I do.
Q. You don't leave them in their own vehicles?
A. Depending upon where I'm at, I may or may not leave them in their vehicle.
Q. All right. Well, clarify for me then just where you're at? For instance, do you -- do you -- give me a location where you do not go into someone's pockets and take out his ID or her ID out of her -- or purse, I guess, and detain them while you verify the ID? Just tell me a location in Dayton where you don't do that?
A. (Indiscernable) --
MR. PARKER: Objection, Your Honor, I believe it's irrelevant.
MR. HODGE: The jail. At the jail.
MR. PARKER: Objection, Your Honor.
THE COURT: Overruled.
BY MR.
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