OH6: Reaching only for glove compartment not a “furtive gesture”

Only reaching toward the glove compartment is not a “furtive gesture.” The police secured defendant in the back of a police car and later searched the glove compartment, and it was not a lawful protective frisk of the car under Long. Defense counsel’s failure to move to suppress was thus prejudicial because it likely would have been granted. City of Toledo v. Powell, 2014-Ohio-3627, 2014 Ohio App. LEXIS 3569 (6th Dist. August 22, 2014):

[*P30] In this case, appellant was pulled over for speeding and driving erratically. While in the process of stopping appellant, Morelli noticed appellant moving toward the glove compartment. The officers then secured the area by ordering the occupants out of the vehicle and placing them at the back of the vehicle. There was no testimony at trial that the officers feared for their safety at the time of the search. Indeed, the only articulable reason for the search was appellant’s movement around the glove compartment during the stop. Such movement, standing alone, does not give rise to a reasonable belief that appellant was armed and dangerous. See State v. Meeseman, 6th Dist. Wood No. 93-WD-015, 1993 Ohio App. LEXIS 5896, 1993 WL 513187, *4 (Dec. 10, 1993) (“While furtive gestures may combine with other facts to create a reasonable inference that an individual may be a threat to an officer, such gestures, standing alone, do not justify a warrantless search.”); State v. Jackson, 110 Ohio App.3d 137, 673 N.E.2d 685 (6th Dist.1996) (concluding that the trial court erroneously denied the defendant’s motion to suppress a protective search where the search was based strictly upon the “lateness of the hour and the passenger’s ‘furtive gesture’ at the time of the stop”). Therefore, we conclude that the search was not justified as a protective search under Long and its progeny.