The State Of Ohio v. Grubb

• Decision Date: 29 March 2010
• Docket Number: No. 4-09-32.,4-09-32.
• Citation: 930 N.E.2d 380,2010 Ohio 1265,186 Ohio App.3d 744
• Parties: The STATE of Ohio, Appellee,v.GRUBB, Appellant.
• Court: Ohio Court of Appeals

186 Ohio App.3d 744

930 N.E.2d 380

2010 Ohio 1265

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

No. 4-09-32.

Court of Appeals of Ohio Third District, Defiance County.

Decided March 29, 2010.

David A. Land, Defiance, for appellee.

James E. Hitchcock, Defiance, for appellant.

ROGERS, Judge.

{¶ 1} Defendant-appellant, Rachel Grubb, appeals the judgment of the Defiance Municipal Court overruling her motion to suppress drug paraphernalia obtained during a search related to a traffic stop. On appeal, Grubb contends that the trial court erred in overruling her motion to suppress because the search was unconstitutional pursuant to Arizona v. Gant (2009), 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485. Based upon the following, we reverse the judgment of the trial court.

{¶ 2} In February 2009, Grubb was charged via complaint with one count of possession of drug paraphernalia in violation of R.C. 2925.14, a misdemeanor of the fourth degree. The charge stemmed from an incident during which a police officer pulled over a vehicle driven by Michael Grubb, Grubb's husband, in which Grubb was riding, arrested Michael for driving with a suspended license, proceeded to search Grubb's purse inside the vehicle, discovered several glass pipes inside the purse containing burnt residue and the odor of marijuana, and discovered a small amount of marijuana inside the passenger compartment of the vehicle.¹ Thereafter, Grubb entered a plea of not guilty to the complaint.

{¶ 3} In March 2009, Grubb filed a motion to suppress the evidence seized as a result of the traffic stop, arguing that the search was unconstitutional because the arresting officer's statement was devoid of any suspicion that Grubb was armed and dangerous or presented any threat that would justify a search of the vehicle or her purse.

{¶ 4} In April 2009, the trial court held a hearing on the motion to suppress, ² at which the following testimony was heard.

{¶ 5} Deputy Benjamin Moser of the Defiance County Sheriff's Office testified that on February 17, 2009, he was patrolling on State Route 2, south of State Route 249, in Defiance County, when he observed a westbound vehicle traveling in excess of the posted speed limit; that he conducted a registration check on the vehicle and discovered that the registered owner's license was suspended; that he initiated a stop of the vehicle based on the speeding violation and identified the registered owner, Michael, as the vehicle's operator based upon images from his in-car computer; that Michael's wife, later identified as Grubb, was seated in the passenger seat of the vehicle; that he asked Michael to exit the vehicle, informed him that his license was under suspension, handcuffed him, placed him under arrest, and seated him in the back of his patrol car; and that he believed he asked Michael whether there was anything illegal in the vehicle, and he believed Michael indicated that there was not.

{¶ 6} Deputy Moser continued that he checked his in-car computer and discovered that Grubb did not have a driver's license; that he approached the vehicle, asked Grubb to exit the passenger seat and stand toward the front of the vehicle, and Grubb complied; that he observed a purse on the floorboard of the vehicle, opened it, and discovered several broken smoking pipes and one intact pipe; that there was residue on the pipes that smelled like marijuana; that Grubb stated that the pipes did not belong to her, but that the purse belonged to her; that he placed Grubb in handcuffs and proceeded to search the passenger compartment of the vehicle; that he discovered a small amount of marijuana under the passenger seat; that both Michael and Grubb denied ownership of the marijuana and pipes; and that Grubb was outside the vehicle at the time he searched her purse, and he had arrested her at the time he searched the remainder of the passenger compartment of the vehicle.

{¶ 7} On cross-examination, Deputy Moser testified that the area in which he initiated the stop of the Grubbs' vehicle was rural, but that he could not say whether it was a high-crime area; that when he initiated the stop, he did not observe that the Grubbs appeared “to be hiding anything, or moving stuff around in the car”; that Michael did not resist the pat-down of his person or his arrest and did not mention anything about a weapon; that he did not find any weapons on Michael's person; that it took approximately 15 minutes for him to remove Michael from the vehicle, arrest him, and move him into the patrol car; that during the approximate 15-minute period during which he arrested and secured Michael, Grubb was sitting in the passenger seat of the vehicle and he did not see her making any furtive movements; that Grubb questioned why he had asked her to exit the vehicle, but had no “major attitude”; that Grubb made no unusual movements or threatening comments; that he did not believe that Grubb was going to shoot or hurt him; that he did not know whether he had any specific reason to suspect that she was armed, but that “when [he walks] up to a car [he suspects] that, you know, anybody could be armed with anything”; that he searched the car because he “was doing a search incident to arrest. [He] was looking for anything, you know, weapons, anything illegal, anything that shouldn't be in the car”; that at the time he searched the vehicle, he had already placed Michael under arrest, and it would have been impossible for Michael to reach into the vehicle; and that he decided to “cut them a break” and not impound the vehicle.

{¶ 8} In July 2009, the trial court overruled Grubb's motion to suppress, finding that when Deputy Moser removed Grubb from the vehicle, she was not under arrest, and he proceeded to search the area where she had been seated for officer-safety purposes; that upon checking her immediate vicinity in the vehicle, Deputy Moser discovered her purse, which contained smoking pipes with marijuana residue; that the basic holding of Gant, 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485, was that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest; that the facts at issue were distinguished from Gant because Michael was not the sole occupant of the vehicle and Grubb, not being under arrest initially, would have had access to her area in the vehicle; that for officer-safety purposes, Deputy Moser was permitted to search her area with the probability of then returning her to the vehicle to wait for a ride; and that upon discovering the drug paraphernalia in her purse, Deputy Moser acquired probable cause to place Grubb under arrest and had reason to search the vehicle to look for further evidence of her crime, possession of drug paraphernalia.

{¶ 9} In August 2009, Grubb withdrew her plea of not guilty and entered a plea of no contest to “drug offenses,” for which the trial court determined she was guilty and sentenced her to a 30-day jail term, suspended in its entirety conditioned on no similar violations, and imposed a six-month driver's-license suspension and a $250 fine. Thereafter, Grubb appealed her conviction and sentence.

{¶ 10} In September 2009, this court dismissed Grubb's appeal, finding that the trial court's judgment entry of conviction was not a final, appealable order because its statement that Grubb entered a plea of no contest to “drug offenses” did not sufficiently state to what offense her plea and conviction related pursuant to Crim.R. 32(C); State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. Shortly thereafter, the trial court issued a second judgment entry to reflect that Grubb was convicted of possession of drug paraphernalia in violation of R.C. 2925.14.

{¶ 11} It is from this judgment that Grubb appeals, presenting the following assignment of error for our review.

The trial court erred when it overruled the defendant's motion to suppress certain materials found in her husband's car and in her purse. The search clearly violated Arizona v. Gant, [--- U.S. ----,] 129 S.Ct. 1710, 173 L.Ed.2d 485.

Standard of Review

{¶ 12} “Appellate review of a decision on a motion to suppress evidence presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13, 2006-Ohio-601, 2006 WL 319143, ¶ 12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d 1117, 1119. The trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses and the weight to be given to the evidence presented. State v. Johnson (2000), 137 Ohio App.3d 847, 850, 739 N.E.2d 1249. Therefore, when an appellate court reviews a trial court's ruling on a motion to suppress, it must accept the trial court's findings of facts so long as they are supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 437 N.E.2d 583. The appellate court must then review the application of the law to the facts de novo. Roberts, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Search and Seizure

{¶ 13} The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and seizures. Neither the Fourth Amendment to the United States Constitution nor Section 14, Article I of the Ohio Constitution explicitly provides that violations of its provisions against unlawful searches and seizures will result in the suppression of evidence obtained as a result of those violations, but the United States Supreme Court has held that the exclusion of evidence is an essential part of the Fourth Amendment. Mapp v. Ohio (1961), 367 U.S. 643, 649, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Weeks v. United States (1914), 232 U.S....