Defendant was a passenger in a vehicle stopped for suspicion the driver had a suspended DL because of a computer check. Defendant was made to get out of the vehicle despite being blind. The officer noted marijuana flakes on his shirt, and then searched him. Because the Ohio Constitution provides greater protection for minor misdemeanor arrests than does the Fourth Amendment, the search of defendant’s person was unreasonable and not supported by probable cause or any exigency. State v. Grubbs, 2017-Ohio-41, 2017 Ohio App. LEXIS 37 (6th Dist. Jan. 6, 2017):
[*P36] “Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.” State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, syllabus. A police officer may briefly detain an individual for a minor misdemeanor offense and issue a citation, but the officer may not conduct a custodial arrest or a search of the individual, when none of the exceptions in R.C. 2935.26 apply. State v. Bradford, 10th Dist. Franklin No. 14AP-322, 2014-Ohio-5527, ¶ 22. Possessing less than one hundred grams of marijuana is a minor misdemeanor. R.C. 2925.11(C)(3).
[*P37] Here, the evidence shows after properly initiating the traffic stop, Officer Clingenpeel smelled marijuana coming from the truck and found a one-hitter by Baldwin, a straw with white powder on Baldwin, two marijuana roaches in the ashtray and what appeared to be a pill by the passenger side of the truck. The officer observed marijuana flakes on appellee’s shirt and pill bottles and money in appellee’s pockets. Appellee was cooperative and gave no sign that he was armed or dangerous.
[*P38] On the video, the reason given by Officer Clingenpeel for searching appellee was the presence of marijuana flakes on appellee’s shirt. At the suppression hearing, Officer Clingenpeel testified he believed he had probable cause to search appellee because appellee had marijuana residue on his shirt. No testimony was presented at the hearing that based on the officer’s training or experience prescription pill bottles are used to carry illegal drugs or that pill bottles are an indicator of illegal drug possession.
[*P39] Based upon the totality of the circumstances known to the officer at the time of the search, we conclude Officer Clingenpeel did not have probable cause to search appellee. The officer conducted a search because appellee had marijuana flakes or residue on his shirt, which is a minor misdemeanor offense. Under Brown and Bradford, such a search is only allowed if none of the exceptions in R.C. 2935.26 apply.
[*P40] R.C. 2935.26 provides in pertinent part: …
[*P41] Here, the only exception which could possibly apply is subsection (A)(1), that appellee was unable to provide for his own safety, because he is legally blind. However, the state did not argue this point and the evidence does not support such a finding.
[*P42] The record shows after appellee was directed to get out of the truck, he walked to the back passenger side of the truck then started walking toward the highway when he was guided back to the rear passenger side of the truck. There, appellee safely stood and waited for nine minutes, looking at his phone or talking on the phone, while Officer Clingenpeel attended to Baldwin and searched Baldwin’s vehicle. The evidence shows during that time, appellee secured a ride. Officer Clingenpeel then approached appellee, asked if he had anything on him, handcuffed him and searched him.
[*P43] There is no indication in the record that appellee could not or would not follow orders or was acting in such a way that one could reasonably conclude that he was unable to provide for his own safety. Officer Clingenpeel should have issued appellee a citation for possession of marijuana and allowed appellee’s ride to pick him up on the highway.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)