OH6: Because OH limits minor misdemeanor searches more than the 4A, search of def because of marijuana flakes on shirt was unreasonable

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.

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