State v. Welch

• Decision Date: 03 July 1985
• Docket Number: No. 84-1127,84-1127
• Citation: 18 Ohio St.3d 88,480 N.E.2d 384
• Parties: , 18 O.B.R. 124 The STATE of Ohio, Appellant, v. WELCH et al., Appellees.
• Court: Ohio Supreme Court

Page 88

18 Ohio St.3d 88

480 N.E.2d 384, 18 O.B.R. 124

The STATE of Ohio, Appellant, v. WELCH et al., Appellees.

No. 84-1127.

Supreme Court of Ohio.

July 3, 1985.

Syllabus by the Court

Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages, that may logically conceal the object of the search. (United States v. Ross [1982], 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 followed.)

The facts in essence which give rise to this appeal by the state of Ohio are as follows. Philip Smith, an officer of the Cleveland Police Department Narcotics Unit, was told by several unidentified informants that one Martin L. Welch, an appellee herein, was a major illegal narcotic dealer from Michigan. From the record it appears that Officer Smith, on August 30, 1982, received a telephone call from an agent of the FBI named Robert F. Cannole who stated that Welch was coming to Cleveland that evening from Michigan and would arrive at the westside Marriott Inn around 10:00 p.m. During their conversation, Agent Cannole described the facial and physical features of Welch and told Officer Smith that the purpose of Welch's trip was to buy one-quarter pound of cocaine. Cannole also stated that Welch would be carrying twenty thousand "hits" of lysergic acid diethylamide ("LSD"). Smith thereafter arranged to meet Cannole at the Marriott.

At 10:00 p.m. that evening, Officer Smith arrived at the Marriott and met with an informant who allegedly corroborated the information given by Agent Cannole. Based on this information, members of the Cleveland Police Department conducted a stake-out of the hotel and, at approximately 11:28 the night of August 30, they noted the arrival of a 1973 Buick with Michigan license plates carrying three white males, one of whom matched the description of Welch. The police observed that individual get out of the vehicle, enter the hotel lounge, and proceed down a corridor. He was next seen approximately twenty minutes later leaving the premises and getting back into the same Buick automobile in which he arrived.

Acting without a warrant, the police officers blocked the car's departure, approached it with guns drawn, and Officer Smith demanded that the occupants put their hands where he could see them. It appears at this point that Welch removed a brown paper bag from his overalls and threw it on the floor of the automobile. Officer Smith reached inside the automobile and removed the bag. The occupants were subsequently ordered out of the vehicle. Upon a search of the bag's contents, Smith believed that it contained cocaine, and it was later found to be such.

The officers then placed the occupants of the vehicle under arrest and made a search of the entire automobile which was designated by the officers as an inventory search. A search of the trunk located two plastic bags contained in a leather traveling bag belonging to Robert Patterson, the other appellee herein. The bags' contents were subsequently analyzed and determined to contain some eight thousand "hits" of LSD.

Both appellees were charged with two counts of possession of drugs (cocaine and LSD) and one count of possession of criminal tools. A pretrial hearing was held on January 4, 1983 upon appellees' motion to suppress the fruits of the warrantless search of the automobile. Officer Smith testified and adduced all of the foregoing facts in support of the state's claim of probable cause for the arrest as well as the subsequent search and seizure. The trial judge overruled the motion to suppress. A trial followed which resulted in a hung jury as to all counts against appellees, except for a not guilty verdict on the charge of possession of cocaine against Patterson.

Following the mistrial, a second pretrial suppression hearing was sought by appellees, but denied by the trial court. Upon retrial on the merits, Welch was found guilty of possession of cocaine, a violation of R.C. 2925.03. Patterson was found guilty of possession of LSD in violation of the same statutory provision. Both Welch and Patterson were also found guilty of possession of criminal tools in violation of R.C. 2923.24.

In a split decision, the Court of Appeals for Cuyahoga County reversed the appellees' convictions holding, as it viewed the issues presented, that the police lacked probable cause to arrest appellees and therefore had no lawful basis to conduct the warrantless search incidental to those arrests. ¹ A majority of the court ruled that there was a lack of probable cause upon the standards applicable to a warrant issued under the Fourth Amendment, as established by the United States Supreme Court in Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. We note, however, that the instant case involved the warrantless search of an automobile.

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

John T. Corrigan, Pros. Atty., Richard J. Hartman and George J. Sadd, Cleveland, for appellant.

James R. Willis, Cleveland, for appellees.

HOLMES, Justice.

The court of appeals below stated that it was guided by the application of the "two pronged" knowledge and veracity test as developed by the United States Supreme Court in the Aguilar and Spinelli cases in its determination that probable cause did not exist for the warrantless search herein. Applying the law as it was perceived, the court held that the arrest and subsequent search were improper in that the state failed to establish the basis of the informants' knowledge or their credibility. It must be pointed out that our nation's highest court specifically abandoned the two pronged test in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, and supplanted in its stead a "totality of the circumstances" test when determining probable cause for the issuance of a warrant. See, also, Massachusetts v. Upton (1984), 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721. However, we do not address the Gates opinion as this case more closely presents an issue concerning the automobile exception to the Fourth Amendment.

It is essential at the outset to emphasize that the facts in the present case establish that neither an arrest nor search warrant was obtained by the officers. The warrantless search and subsequent arrests were carried out by officers who had received certain information from allegedly reliable informants which had been followed up by independent observation of the suspects' movements and, importantly for purposes of our discussion, the search was of a vehicle that had been stopped for investigation of transporting reported contraband.

Simply stated, this is a warrantless automobile search case and, as such, is to be determined upon the basis of Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and its progeny.

The cardinal principle of the Fourth Amendment is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.

One of the well-delineated exceptions to the Fourth Amendment mandates was established in Carroll, supra, wherein the court pronounced the so-called automobile exception to the warrant requirement. The Carroll case involved a warrantless search of an auto for "bootleg" whiskey during the prohibition era. After a thorough explanation as to the basis for the exception, the court held that a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment.

Writing for a majority of the court, Chief Justice Taft stated at 267 U.S. 153, 45 S.Ct. at 285:

" * * * [T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."

In essence, the above-quoted language enunciated the general policy statement that citizens have a lesser expectation of privacy in their vehicles than in private dwellings, and have no degree of privacy when carrying contraband in such vehicles.

In the progeny to Carroll, the court has continued to emphasize the...