OH reaffirms that minor misdemeanor arrest does not justify a search of the person

Minor misdemeanor arrest does not justify a search of the person in Ohio. State v. Golly, 2008 Ohio 447, 2008 Ohio App. LEXIS 407 (8th Dist. February 7, 2008):

[*P16] As recognized by one court, “A violation of the open-container statute, R.C. 4301.62, is punishable as a minor misdemeanor. While the protections of the Ohio and the federal constitutions against warrantless and unreasonable seizures and searches are generally coextensive, see State v. Robinette, 80 Ohio St.3d 234, 245, 1997 Ohio 343, 685 N.E.2d 762, in State v. Brown, 99 Ohio St. 3d 323, 2003 Ohio 3931, 792 N.E.2d 175, syllabus, the Ohio Supreme Court held that the Ohio Constitution provides a greater protection than the Fourth Amendment ‘against warrantless arrests for minor misdemeanors.’ Police officers may briefly detain, but may not conduct a custodial arrest, or a search incident to that arrest, for a minor-misdemeanor offense when none of the R.C. 2935.26 exceptions apply. See State v. Brown, at P25. Under the facts of the initial stop, a search of [defendant’s] person was not permissible because none of the statutory exceptions applied.” State v. Riggins, Hamilton App. No. C-030626, 2004 Ohio 4247.

[*P17] Upon the record before us, we do not find any of the exceptions outlined in R.C. 2935.26 existed to justify arresting Golly for the minor misdemeanor offense.

“[*P22] In general, trial counsel’s failure to file a motion to suppress does not per se constitute ineffective assistance of counsel.” Here, it is clear from the record defendant consented so there could be no IAC. State v. Hamilton, 2008 Ohio 455, 2008 Ohio App. LEXIS 413 (8th Dist. February 7, 2008).*