OH 5th: Search incident for speeding is proper

Ohio’s Fifth District Court of Appeals holds that Virginia v. Moore permits a search incident for speeding 36 in a 25 zone. A CI had given the police information that defendant would be bringing drugs when he appeared[, and the state did not have to rely on corroborating the CI]. State v. Logan, 2008 Ohio 2969, 2008 Ohio App. LEXIS 2489 (5th Dist. June 16, 2008):

[*P21] Moore was charged with possession of cocaine with the intent to distribute, in violation of Virginia law. Id. He filed a pretrial motion to suppress the evidence from the arrest search. Id. In his motion, Moore argued suppression was required by the Fourth Amendment. Id. The trial court denied the motion, and after a bench trial, found Moore guilty of the drug charge and sentenced him accordingly. Id. Virginia’s intermediate court reversed the conviction on Fourth Amendment grounds, however, the intermediate court, sitting en banc, subsequently reinstated the matter. Id. (Citation omitted). The Virginia Supreme Court reversed Moore’s conviction, reasoning since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment. Id. (Citation omitted). The United States Supreme Court granted certiorari. Id. (Citation omitted). The Moore Court reversed the Virginia Supreme Court, reaffirming “against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.” Id. at 1608.

[*P22] We find Moore to be controlling, and find once Sgt. Zehner observed Appellant commit the offense of speeding, the officer was permitted to arrest Appellant and conduct a search thereafter. Accordingly, we find the trial court did not err in overruling Appellant’s motion to suppress.

Comment: This is so wrong on so many levels, but let’s just start with the basic premise: What evidence of speeding would be found on defendant’s person under Chimel? This case is a mere application of Moore, and by extension, Atwater, which is relied on by Moore, without even thinking. How outraged would the public be if they knew that every traffic ticket was going to result in a search incident to an arrest, which would result in a custodial arrest only if something was found? Can, or should, Moore be limited to custodial arrest-type offenses?