dissenting.
{¶ 27} I respectfully dissent.
{¶ 28} The reasonableness of a warrantless search is subject to the basic rule 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, 19 L.Ed.2d 576. “Among the exceptions to the warrant requirement is a search incident to a lawful arrest [that] derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” Arizona v. Gant (2009), 556 U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485.
{¶ 29} In Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Supreme Court of the United States held that a search incident to arrest may only include “the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”
{¶ 30} In New York v. Belton (1981), 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, the court considered the issue of a search incident to the arrest of occupants of a motor vehicle. In that case, a police officer stopped a car that had been speeding. The officer smelled marijuana and observed an envelope on the car floor marked “Supergold,” a type of marijuana. The officer determined that there was probable cause to believe that the occupants had committed a drug offense, so he ordered the occupants out of the car and placed them under arrest. He then patted them down and searched the vehicle, where he found cocaine in a jacket. In upholding the search, the court held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers.
*785{¶ 31} In Arizona v. Gant, the court held that an officer may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest, and if these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
{¶ 32} The Gant court explained:
{¶ 33} “Under Chimel, police may search incident to arrest only the space within an arrestee’s ‘immediate control,’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence.’ 395 U.S., at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685. The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.
{¶ 34} “ * * *
{¶ 35} “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), and following the suggestion in Justice Scalia’s opinion concurring in the judgment in that case, id., at 632, 124 S.Ct. 2127, 158 L.Ed.2d 905, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Emphasis added.)
{¶ 36} Therefore, in my view, because Gant expressly limits Belton, the “plain-smell exception” is likewise limited. Under Gant, I believe that the plain-smell exception is limited to those instances where marijuana is listed as an offense of arrest.
{¶ 37} In this case, the stop of the vehicle was permissible, in light of the fact that the officer observed defendant’s vehicle moving with the door open and heard music playing at a high volume in the vehicle. See State v. McComb, Montgomery App. No. 21963, 2008-Ohio-425, 2008 WL 314906; State v. Steen, Summit App. No. 21871, 2004-Ohio-2369, 2004 WL 1057647.
{¶ 38} I therefore agree with the trial court’s decision that the search of the vehicle was impermissible; however, pursuant to Arizona v. Gant, supra, as defendant was handcuffed and under arrest at the time of the search and the officer had no reason to believe that the vehicle contained evidence of the offenses *786of arrest, i.e., open container, driving with the driver’s side door open, weaving, and playing loud music. Cf. State v. Hopper, Cuyahoga App. Nos. 91269 and 91327, 2009-Ohio-2711, 2009 WL 1623105; State v. Elliott, Cuyahoga App. No. 92324, 2010-Ohio-241, 2010 WL 320479.
{¶ 39} The state asserts that pursuant to this court’s opinion in State v. Hopper, the odor of marijuana coming from the vehicle justified the search of the vehicle. The Hopper court held, however, that “based upon the probable cause generated by the smell of marijuana emanating from the car, the officers placed the occupants of the car under arrest for allegedly transporting marijuana in a motor vehicle. A search of the vehicle incident to that arrest was entirely justified under Gant, because the officers had reason to believe that the vehicle contained evidence of the offense of arrest, to wit: marijuana.” Thus, Hopper is clearly distinguishable from this matter in that the offense of arrest in Hopper was transporting marijuana, whereas the offenses of arrest in this matter are open container, driving with the driver’s side door open, weaving, and playing loud music.
{¶ 40} In my view, a search for marijuana on the basis of the odor of this substance when the offense of arrest has nothing to do with marijuana is unsupportable under Arizona v. Gant, and authorizing such searches will, in my view, open a Pandora’s box to improper searches.
Jones, Kilbane, and Sweeney, JJ., concur in the foregoing opinion