[Cite as State v. Smith, 2013-Ohio-2208.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110727
TRIAL NO. B-1102515
Plaintiff-Appellant, :
vs. : O P I N I O N.
SIEARRA SMITH, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 31, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Kory Jackson, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} The state appeals from the trial court’s order granting defendant-appellee
Siearra Smith’s motion to suppress a revolver found in her purse after the warrantless
search of her vehicle. Police had stopped Smith for driving with a suspended driver’s
license and other minor traffic infractions. During the stop, an experienced police officer
observed Smith make furtive movements to secret what he believed to be a weapon in her
purse. The officers removed Smith from her vehicle and searched it for weapons, finding a
loaded revolver in her purse. Because a full custodial arrest had not been effected, and
Smith could have reentered her vehicle at the conclusion of the investigation where
she could have regained immediate control of the revolver, the officers had a
reasonable basis to search the vehicle. We must reverse.
{¶2} Smith was driving her vehicle westbound on Waycross Road in the city of
Forest Park, Ohio. She had a single passenger with her, Troy Willis. Forest Park Police
Officer Eric Wetterich observed Smith and, as was the custom of his department, entered
her license-plate number into his in-car computer. The computer search revealed that
Smith, the vehicle owner, was driving with a suspended driver’s license. Officer Wetterich,
an experienced police officer with nine years’ service, followed Smith and observed her
commit several turn-signal violations. Smith pulled into a fast-food restaurant and
stopped at the drive-thru service lane. Officer Wetterich pulled in behind Smith. Smith’s
vehicle then “suddenly pulled away” from the drive-thru and entered a parking spot on the
restaurant lot.
{¶3} Officer Wetterich parked his cruiser behind Smith’s vehicle. He observed
her “reach[ing] back to the right, into the middle console area of the vehicle.” Smith
“appeared to be looking or digging or hiding something at this point.” Her motions were
“a little bit frantic.” Concerned that Smith may have been reaching for, or secreting, a
weapon, when Smith attempted to exit from the vehicle, Officer Wetterich activated the
cruiser lights, and called for backup.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} He approached Smith and expressed his concerns regarding her
movements in the car. She appeared nervous. Smith explained that she was merely
getting her wallet out of her purse. Officer Wetterich told her that he was going to search
the vehicle for everyone’s safety. She denied having a weapon.
{¶5} After the arrival of Forest Park Police Officer Fredrick Smith, Willis and
Smith were asked to leave the vehicle. It was determined that Willis also had a suspended
driver’s license. Willis was placed in Officer Smith’s cruiser but was not handcuffed.
Smith stood next to the cruiser parked some distance from her vehicle. She was not
frisked or handcuffed.
{¶6} Officer Wetterich began his search and immediately spotted a digital scale
in plain sight in the driver’s side door pocket. He next spotted Smith’s purse. It was
located in the area of the rear seat where he had seen Smith make her furtive motions. He
unzipped the purse and spotted a loaded revolver on top of the purse contents. Smith
denied knowing that the revolver was in her purse.
{¶7} Smith was indicted for carrying a concealed weapon, and for improper
handling of a firearm in a vehicle, both punishable as fourth-degree felonies. She moved
to suppress the revolver as the fruit of an unreasonable search. At the conclusion of a
hearing on the motion, the trial court carefully and fully stated the facts upon which
its decision was based. The trial court concluded that Officer Wetterich had made a
valid traffic stop and that his legitimate concern for his safety would have permitted
a simple frisk of Smith and Willis for weapons. But, the court concluded that once
Smith was out of her vehicle and was no longer within reach of her purse, there was
no danger to the officers’ safety and their subsequent search of the vehicle was
unreasonable. The court granted the motion to suppress, and the state timely
appealed pursuant to R.C. 2945.67 and Crim.R. 12(K).
{¶8} In its sole assignment of error, the state argues that the trial court
erred in granting Smith’s motion to suppress. We agree.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Our review of the trial court’s detailed findings of fact and legal
conclusions entails a two-step process. See In re A.J.S., 120 Ohio St.3d 185, 2008-
Ohio-5307, 897 N.E.2d 629, ¶ 49 et seq. First, we accept the trial court’s findings of
historical fact if they are supported by competent, credible evidence. See State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Then this court
must make an independent determination, without deference to the trial court’s legal
conclusions, whether those facts meet the applicable constitutional standards as a matter
of law. See id.; see also State v. Deters, 128 Ohio App.3d 329, 334-335, 714 N.E.2d
972 (1st Dist.1998).
{¶10} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures. Accord Ohio Constitution, Article I, Section 14.
Unless one of the few well-delineated exceptions applies, warrantless searches are
per se unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514,
19 L.Ed.2d 576 (1967).
{¶11} In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L. Ed. 2d 1201
(1983), the United States Supreme Court recognized one exception to the warrant
requirement for the limited protective search of an automobile during a lawful traffic
stop. See Arizona v. Gant, 556 U.S. 332, 347, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)
(the Michigan v. Long rule remains an “established exception to the warrant
requirement”). The exception derives from the recognition that “investigative
detentions involving suspects in vehicles are especially fraught with danger to police
officers.” Long at 1047. Thus, the search of the passenger compartment of an
automobile to uncover weapons, limited to those areas in which a weapon may be
placed or hidden, is permissible, as long as the investigating police officer possesses
an articulable and objectively reasonable belief that the suspect is potentially
dangerous and that she may gain immediate control of a weapon. See id. at 1048-
1049; see also State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988); State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Huth, 153 Ohio App.3d 102, 2005-Ohio-4303, 836 N.E.2d 623, ¶ 13 (1st Dist.). We
determine the existence of a reasonable suspicion that a suspect was dangerous and
that a weapon was present by evaluating the totality of the circumstances,
considering those circumstances through the eyes of a reasonable and prudent police
officer. See Bobo at paragraph two of the syllabus.
{¶12} In this case, the resolution of the state’s assignment of error depends
upon the trial court’s legal conclusion that Officer Wetterich lacked a reasonable and
articulable suspicion to search Smith’s vehicle once she had been removed from the
vehicle. Smith argues that once outside of her vehicle and standing next to the police
cruiser, she lacked the ability to gain immediate control of the revolver. Thus she
maintains that the officers had engaged in an unconstitutional, free-ranging search
for evidence of crime simply because she had been caught committing a traffic
offense. See Gant at 345 (a police officer’s unbridled discretion to rummage at will
among a person’s private effects implicates a central concern of the Fourth
Amendment).
{¶13} It is beyond cavil that Officer Wetterich possessed authority to stop
Smith’s vehicle. See Dayton v. Erickson, 76 Ohio St.3d 3, 9, 665 N.E.2d 1091 (1996).
Officer Wetterich, an experienced officer, was patrolling alone when he encountered
Smith. She was driving with a suspended license, and he had observed her make
several turns without using her turn signals. He observed her speed away from the
drive-thru window and then abruptly pull into a parking spot after his cruiser
followed her.
{¶14} When Officer Wetterich’s cruiser pulled in behind Smith’s parked
vehicle, he observed her reaching over her right shoulder and making furtive motions
as if she were trying to obtain or secret something in her purse. The trial court’s
findings that Smith’s actions caused Officer Wetterich reasonable concern for his
safety are well supported in the record.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} In response to this concern, Officer Wetterich and Officer Smith
removed Smith and her passenger from the vehicle. Willis was frisked and placed in
a police cruiser, but was not handcuffed. Smith was asked to stand near Officer
Smith’s cruiser but was not frisked or handcuffed. Until this point of the encounter,
the trial court concluded that the scope of the officers’ intrusion into Smith’s liberty
was reasonable and justified by concern for their safety. But once Smith had been
removed from the vehicle, the purse, and any weapon contained within it, was no
longer within her immediate reach. Thus the trial court concluded that Smith no
longer posed a danger to the officers, and any justification to search further for
weapons was lost.
{¶16} But the lawfulness of Officer Wetterich’s subsequent search of Smith’s
vehicle and purse was not limited by the fact that Smith and Willis had been removed
from the vehicle. A subsequent search for weapons in a vehicle is justified by an
officer’s particularly vulnerable position during a traffic stop. Where a full custodial
arrest has not been effected, the individual may be permitted to reenter her vehicle at
the conclusion of the investigation where she could regain immediate control of a
weapon. See Long, 463 U.S. at 1049-1052, 103 S.Ct. 3469, 77 L.Ed.2d 1201; accord
Gant, 556 U.S. 332, at 352, 129 S.Ct. 1710, 173 L.Ed.2d 485 (Scalia, J., concurring)
(“the possibility of access to weapons in the vehicle always exists [if an arrest has not
been made], since the driver or passenger will be allowed to return to the vehicle
when the interrogation is completed”).
{¶17} This court has long held that if vehicle occupants would be permitted
to return to the vehicle, an officer acts reasonably when, out of a concern for his
safety, the vehicle is searched for weapons prior to allowing its occupants to reenter.
See State v. Sieg, 1st Dist. No. C-940953, 1995 Ohio App. LEXIS 2814 (July 5, 1995)
(it was not unreasonable for investigating officer to look under the driver’s seat of the
suspect’s vehicle to determine whether weapons were present); see also State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Caulton, 1st Dist. No. C-080034, 2008-Ohio-6090, ¶ 10 (“even where a suspect is
out of his car, a Terry search may extend to areas in the car that would be readily
accessible to a suspect upon his return to the car”); State v. Walker, 2d Dist. No.
24542, 2012-Ohio-847, ¶ 28 and 31; State v. Morlock, 3d Dist. No. 1-12-21, 2013-
Ohio-641, ¶ 14; State v. Wade, 9th Dist. No. 26275, 2012-Ohio-4255, ¶ 20; State v.
Broughton, 2012-Ohio-2526, 969 N.E.2d 810, ¶ 23 (10th Dist.).
{¶18} Under the totality of the circumstances, we hold that Officer
Wetterich possessed a reasonable basis to search Smith’s vehicle and to look into her
purse in order to determine whether, for the officers’ safety, any weapons were
present. After he had stopped her vehicle, Officer Wetterich had observed Smith
making furtive movements in her purse. At the time of the search, Smith was not
under arrest. And though Officer Wetterich indicated Smith would not be permitted
to drive the vehicle away, it was likely that she would have returned to the vehicle to
recover her purse and thus gain immediate control of a weapon had the search not
uncovered the revolver. See Morlock at ¶ 14.
{¶19} Since at the time of the search Smith was not under arrest and
secured in handcuffs inside a police cruiser without the possibility of leaving police
custody, the rule of Arizona v. Gant, proscribing the warrantless search of an
automobile if the suspect is already in police custody, is not at issue here. See
Broughton at ¶ 36. There was sufficient justification for a warrantless search at its
inception and at each subsequent stage of the inquiry. See Long, 463 U.S. at 1048-
1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201; see also State v. Ruehlmann, 1st Dist. No. C-
100784, 2011-Ohio-6717, ¶ 12. And the scope of the search was “strictly
circumscribed” by the exigencies which justified its initiation. Terry v. Ohio, 392
U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We sustain the state’s
assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Therefore, the judgment of the trial court granting Smith’s motion to
suppress the revolver seized during the search of her vehicle is reversed. The cause is
remanded to the trial court for further proceedings consistent with law and this
opinion.
Judgment reversed and cause remanded.
HILDEBRANDT, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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State v. Smith
Combined Opinion