{"id":2174,"date":"2008-06-21T14:43:47","date_gmt":"2008-06-21T14:41:20","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-06-21T14:41:20","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2174","title":{"rendered":"OH 5th: Search incident for speeding is proper"},"content":{"rendered":"

Ohio’s Fifth District Court of Appeals holds that Virginia v. Moore<\/em><\/a> 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<\/a>, 2008 Ohio 2969, 2008 Ohio App. LEXIS 2489 (5th Dist. June 16, 2008):<\/p>\n

[*P21] Moore was charged with possession of cocaine with the intent to distribute, in violation of Virginia law. Id.<\/em> He filed a pretrial motion to suppress the evidence from the arrest search. Id.<\/em> In his motion, Moore argued suppression was required by the Fourth Amendment. Id.<\/em> The trial court denied the motion, and after a bench trial, found Moore guilty of the drug charge and sentenced him accordingly. Id.<\/em> Virginia’s intermediate court reversed the conviction on Fourth Amendment grounds, however, the intermediate court, sitting en banc, subsequently reinstated the matter. Id.<\/em> (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.<\/em> (Citation omitted). The United States Supreme Court granted certiorari. Id.<\/em> (Citation omitted). The Moore<\/em><\/a> 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.<\/em> at 1608.<\/p>\n

[*P22] We find Moore<\/em><\/a> 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.<\/p><\/blockquote>\n

Comment:<\/em> 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<\/em><\/a>? This case is a mere application of Moore<\/em>, and by extension, Atwater<\/em><\/a>, which is relied on by Moore<\/em>, 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<\/em> be limited to custodial arrest-type offenses?<\/p>\n","protected":false},"excerpt":{"rendered":"

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