Opinion
No. 28578
Decided July 2, 1969.
Search and seizure — Search for weapons — Incidental to lawful arrest for traffic violation — Protection of arresting officer — Prevention of escape — Reasonableness of search — Fourth Amendment — Search of defendant's person — Search of car which he was driving — Prosecution for carrying concealed a dangerous weapon — Located under driver's seat of car — Motion to suppress evidence.
1. Where a law enforcement officer lawfully arrests a motorist for a minor traffic offense, his contemporaneous search of the motorist and the vehicle for weapons, without a search warrant, is lawful.
2. The lawful scope of a search for weapons by an officer making an arrest is limited to those areas reasonably necessary for the protection of the officer.
3. Any restriction of a person's right of locomotion the purpose of which is to assure that he will answer to a possible charge of an alleged crime is an arrest.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Horn, for plaintiff.
Mr. Ted Rice, for defendant.
I
Where a law enforcement officer lawfully arrests a motorist for a minor traffic offense, his contemporaneous search of the motorist and the vehicle for weapons, without a search warrant, is lawful.
This right is based upon the fact that an arrest has been made and the officer has a right to protect himself and prevent escape.
The scope of such a search is limited to those areas reasonably necessary for the protection of the officer.
Where such an arrest is in fact part of a scheme which had as its purpose the making of a search of the person or the vehicle, the fruits of the search will be suppressed.
II
Walter Lee Coles, waiving a jury, was tried for unlawfully carrying concealed a dangerous weapon.
The weapon, a pistol, was extracted from under the left front seat of Coles' automobile. This occurred during his apprehension by two Dayton Police Officers for operating an automobile without a light so constructed and placed as to illuminate with a white light the rear registration plate as provided by Section 4513.05, Revised Code.
In addition Coles was stopped for failing to have brake lights functioning. This court fails to find such failure the violation of any Ohio statute. It may well be that Coles failed to signal his intention to stop. Nevertheless, he was not confronted with nor arrested for such an offense.
Coles moved timely to suppress the evidence so seized on the ground that his right provided by the Fourth Amendment of the Constitution of the United States was thereby violated.
An evidentiary hearing was held prior to trial on the motion to suppress and it was overruled. Coles moved for reconsideration and by agreement of the parties the issue of illegal search and seizure was retried.
From the evidence produced the court concludes that on the evening of September 26, 1968, at about 7:40 p. m. Officers Prugh and Smith were cruising eastwardly on Germantown Street on routine patrol. Officer Smith observed a 1960 Cadillac, black over gold, license No. 2940PS, moving westwardly. As it passed, Smith noticed that there was no light burning over the rear license plate. He then turned the cruiser around and pursued the Cadillac to the next intersection where it stopped for a traffic light. As it came to a stop it was observed that no rear brake lights were functioning. After crossing the intersection on the change of light the Cadillac was stopped.
The officers had recognized the automobile and its license identification as having belonged to Coles. About two years previous these officers were radioed in on an automobile chase and upon arrival with other officers found a Cadillac, which was identified as the defendant's, abandoned on Bank Street containing various items of merchandise, later identified as stolen, of the approximate value of $3,000.00. About seven months previous these officers stopped Coles for driving this same Cadillac at an excessive rate of speed at which time they saw two loaded cartridges for a .22 revolver on the floor of the Cadillac and upon the alleged consent of the defendant the trunk was searched which produced an arsenal of guns and numerous items of personal property. At this time Officer Smith maintained that because of defendant's conduct upon being informed he was under arrest for investigation of burglary it was necessary to draw his service pistol in order to handcuff Coles. The substance of Smith's testimony on this part of the encounter is: "He started to come at me, shouting and belligerent." Each officer stated there was no other known manifestations of violence concerning Coles.
The foregoing was the totality of knowledge possessed by these officers concerning Coles when they stopped the Cadillac for traffic violation. The officers alighted and approached the Cadillac, Smith on the left and Prugh on the right, and while so doing the defendant alighted from the Cadillac on its left side. The officers then recognized the operator of the Cadillac as Walter Lee Coles. Upon arriving at the Cadillac Coles stated to Smith, "Why are you stopping me"; "you are harassing me"; "This has to stop"; all in a loud and boisterous manner. Smith then informed Coles of the traffic violation and frisked him which revealed nothing significant. Coles made a movement for the door handle. Smith told Coles not to get back in the car. Coles said he was going. Smith then opened the left front door of the Cadillac and found the gun, which was not in plain sight, under the left front seat. There was a conflict between the testimony of the officers as to whether the left front door was open into traffic or closed.
Thereupon Smith and Prugh handcuffed Coles, placed him in the cruiser and at the city jail he was booked on the charge of carrying concealed a dangerous weapon.
At the jail a ticket for the traffic violation was completed and a copy placed among Coles' personal effects taken from him upon being booked. A copy was filed with the police department. It was a warning ticket and there was no prosecution or proceedings of any kind had upon the alleged traffic violation. Upon conviction on such charge a fine of not more than fifty dollars may be imposed.
It was stipulated by the parties that the pistol recovered from the automobile was placed there by the defendant.
III
The issue then has to do with whether a search of Coles' automobile without a search warrant following his arrest for violation of a traffic law is lawful or not.
Arduous research and minute examination conclusively admits the confusion surrounding the case-by-case development of the doctrine of search of motor vehicles without warrant incident to a valid arrest for violation of traffic laws.
The right to search motor vehicles without warrant incident to a valid arrest is an exception to the Fourth Amendment prohibition against unreasonable searches. Carrol v. U.S., 267 U.S. 132. This right is subject to several qualifications. The primary test is that such search must meet the test of reasonableness under the Fourth Amendment before evidence obtained as a result of such searches is admissible. Preston v. U.S., 376 U.S. 364; State v. Call, 8 Ohio App.2d 277. The numerical strength of the reported cases alone makes it readily discernible that this test hinges on the circumstances peculiar to each case. Thus, resort must be had to the doctrinal refinements and ramifications of such exception.
IV
Defendant did not argue that the officers used the unexercised right to charge the traffic violation as a subterfuge for search. Inasmuch as the evidence tends to convey covertly such an innuendo, the court is compelled to dispose of such proposition. This presents the question as to the validity of the search, requiring a finding that the officers used the traffic offense as an artifice to go on a general exploratory search, thereby evading the constitutional proscription.
The officers found the defendant violating the law, so their right to arrest is governed by Section 2935.03, Revised Code. This section commands that an officer arrest and detain a person found violating a law of Ohio. State v. Burns, 35 O. O. 2d 173. A person found by a law enforcement officer violating a law of the state or an ordinance of a municipal corporation may be lawfully arrested by such officer without a warrant, regardless of what charge, if any, is thereafter made against him. State v. Hatfield, 1 Ohio App.2d 346.
The holding in State v. Hatfield, supra, dispels the idea that subterfuge is a defense, unless the evidence is clear and unequivocal or there is an expressed or implied statement that is tantamount to an admission on the part of the officers, such as was expedienced in Gonzalez v. U.S., 391 F.2d 308.
Thus, in Ohio, if the initial arrest is lawful, the arrestee suffers no deprivation of his rights unless the subsequent search without a warrant may be declared invalid.
State law determines the validity of arrests without a warrant. U.S. v. Pierce, 124 F. Supp, 264.
Arrest simply means to deprive a person of his liberty by legal authority. Thus any restriction of the right of locomotion the purpose of which is to apprehend or detain such person any reasonable length of time in order that he be forthcoming to answer an alleged or suspected crime is an arrest.
The state of Ohio authorizes summary arrests in traffic offenses. Thus if Mapp v. Ohio, 367 U.S. 643, requires that the rule requiring the arrest to be made prior to the search be applied in state courts the facts and circumstances clearly indicate that compliance therewith has been achieved in this case.
When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporary search for weapons or for the fruits of or implements used to commit a crime. State v. Bowman, 17 Ohio App.2d 195. The rule is extended to motor vehicles but the justifications therefor are absent where a search is remote in time and place from the arrest. State v. Call, 8 Ohio App.2d 277; Preston v. U.S., 376 U.S. 364.
V
According to Coles' evidence and argument his basic theory for the relief requested centers upon the proposition that the search was unreasonable.
In coming to grips with the determinable issue the court is compelled to recognize that in these days of high crime rates, effective law enforcement demands that the evildoer in our society who desires to destroy life and property should be swiftly brought to justice and hence a more absolute principle should be furnished the police. But in the area of traffic violations, as in all other areas, a balance between effective law enforcement and the protection of constitutional rights to which all citizens are entitled must be made. All of which causes the court to meditate upon the cogent words of Justice Brandeis:
"Our Government is the potent, the omnipresent teacher. For good or ill it teaches the whole people by its examples. * * * If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy." Olmstead v. U.S., 277 U.S. 438, 485.
The court has determined that the arrest was lawful and with this Coles does not raise a hue and cry. But he does contend that with two officers nearby, after his having been frisked and found clean of weapons, one officer could have held him at bay by drawing his service revolver while the other returned to the cruiser to check Coles out by radio and make out the ticket for the traffic violation. Further that he could have been handcuffed.
Coles seems to believe that the search came about primarily on account of the officers' knowledge of him growing out of past confrontations. He argues that his conduct under consideration in the instant case fails substantially to show facts and circumstances to cause the officer, in good faith, to suspect that his personal welfare was endangered. Also that there were no circumstances to indicate that the officer was dealing with a more serious offense than a mere traffic violation and the arrestee might attempt to escape.
VI
This court is well aware of the several cases which have adhered to the doctrinal refinements advocated by the defendant. He relies on Grundstrom v. Beto, 273 F. Supp. 912 and Gonzalez v. U.S., 391 F.2d 308.
In Beto the petitioner in a habeas corpus proceeding was a passenger in the motor vehicle stopped for having a loud muffler. All occupants were removed to the cruiser, without frisking, in custody of one of the officers while the other conducted the search by tearing out the kickboard beneath the glove compartment, where the implements and fruits of an armed robbery were found. There was not even a microscopic bit of evidence tending to show facts or circumstances that the vehicle or the occupants might have been involved in the robbery. No effort was made to search their persons for weapons. There was no showing that either officer had reason to believe that the occupants were armed or dangerous, and that anyone had done anything from which the officers could believe their own persons were in danger. Further the justification for the search was based on instrumentalities and means by which crime was committed and fruits of the offense. Thus under such facts and circumstances the search was general and exploratory. Go-Bart Importing Co. v. U.S., 282 U.S. 344; Harris v. U.S., 331 U.S. 145; U.S. v. Rabinowitz, 339 U.S. 62.
The Gonzalez case stands for the proposition that the arrest must not be a mere pretext for an otherwise illegitimate search. U.S. v. Harris, 321 F.2d 739; Taglavore v. U.S., 291 F.2d 262. Also that the search must have some relation to the nature and purpose of the arrest. Henry v. U. S., 361 U.S. 98. Furthermore the arrest for traffic violation was delayed and the real purpose for making the arrest was to search defendant's car for narcotics.
VII
Research reveals that some legal scholars and some judges advocate and hold that a lawful arrest for a minor traffic offense, without more, fails to produce a predicate for search of the person, much less for search of the vehicle. The fear has been expressed that no respectable citizen is able to drive without some possibility and, in fact, probability, of violating a traffic law. In order to protect this respectable citizen from the harassment and embarrassment of searches by the police, it is contended that the mere fact of arrest should not authorize a search. Such an argument evades the issue. The search of an innocent person lawfully arrested on charges other than a traffic offense also results in embarrassment and harassment. Yet there is no hue and cry resounding over the land in this regard. Those who oppose searches in this area claim that the reasons advanced for permitting searches is the quest for certainty. The issue is again evaded.
The reason for permitting the search is to protect the officer. It is not untenable that the respectable citizen who finds himself under lawful arrest may panic or attempt to escape or perhaps use a weapon, which he might have lawfully in his possession, to harm the officer. The point is that no reason has been advanced why the officer should take the risk. Moreover, must the officer indulge in presumptions that the arrestee is respectable and may not have good reason to avoid a prolonged encounter with the police. The arrestee may be a wanted criminal or someone who has committed an offense which is in fact the case with respect to those who are defendants in the reported cases. Invariably, all the decided cases involve either conviction based upon the discovery of contraband or other evidence or a motion to suppress. This is not to suggest that the search should justify the arrest, because in the cases involved the arrest is valid and the only question is whether or not the search should be permitted. The fact that weapons and contraband are in the possession of those arrested for traffic violations should have some bearing on whether there is any public policy to be served by limiting the right to search in such instances. This is particularly important in the case where weapons are found. If the fact of arrest is never sufficient to justify a search incident to a traffic violation unless there are additional circumstances apparent to the policeman to justify the search, who would be willing to tell the widow of the dead police officer that was killed because a narrow view of the Constitution deprived him of one of the means he has traditionally had for the purpose of protecting himself?
The cases supporting defendant's argument suggest that only exigent circumstances amounting to probable cause will ever justify an incidental search for a traffic violation arrest, such as knowledge that the arrestee is known as a persistent law violator. Recognizing that there might be danger from a known law violator the question arises as to whether the danger will not be at least as great if the arrestee is a law violator not known to the arresting officer. Implicit in the recognition is the need to protect the officer.
In spite of such recognition it is contended by Gonzalez v. U.S., supra, and People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433, and their supporters that the policeman who, in making an arrest is performing a duty imposed upon him by law, must take the risk of losing his life rather than a temporary contemporaneous search of the person and the vehicle for weapons.
This court has stated it before and will state it again; the cemeteries and police stations contain living epitaphs of those dedicated traffic officers who failed to take reasonable precautions for their own protection. State v. Mericle, 15 Ohio Misc. 202, 235 N.E.2d 150.
Where the law has authorized an arrest, the life of the arresting officer should be treated as being more sacred than the alleged right of a person lawfully arrested to be free from embarrassment, and the officer should be permitted the best method of protecting himself, namely, the traditional right to search incident to a lawful arrest. The existence of easily hidden weapons, knives and pistols, makes the need for this right even more pronounced.
Moreover, to date it has not been demonstrated nor contended that searches incident to traffic violations have been subjected to abuse.
VIII
The Fourth Amendment prohibition is unreasonable searches. The traffic officer's need to protect himself makes the search for weapons reasonable. This need creates the exception to the prohibition upon a lawful arrest. Agnello v. U.S., 269 U.S. 20; U.S. v. Rabinowitz, 339 U.S. 56.
Does this right extend beyond the person of the arrestee to the vehicle then and there under his immediate control? Recognizing that most state courts hold that it is unlawful for the police to search a motor vehicle following an arrest for a minor traffic violation; Lawfulness of Search of Motor Vehicles Following Arrest for Traffic Violations, 10 A.L.R. 3d 314; Gonzales v. U.S., supra, note 8, page 315; this court departs from the majority and answers the question in the affirmative. A pistol extracted from a glove compartment, from under a seat or from under an item of clothing can be as effective as one extracted from a pocket on the person. It should be observed that both reason and authority support the right of police officers to search the person of one subjected to summary arrest for the purpose of finding weapons and preventing escape and harm to the officer. This right to search is not limited or defined by the nature of the offense and is not dependent on the existence of any additional or special circumstances, but rests upon the existence of a lawful arrest. It should also be noted that if the search of the person is originally lawful, items relative to offenses other than that for which the arrest was made may be seized when found as a result of the lawful search. Harris v. U.S., 331 U.S. 145.
The limitations of a "reasonable cause to believe that, `he might try to escape,' or `he might inflict harm,'" are as unrealistic when applied to the vehicle as when they are applied to the person.
Thus it is submitted that the same standards should be applied, when the search is for weapons in an area under the control of the arrestee and the arrest is for a traffic violation, as is applied when the arrest is for other offenses.
The rule announced here today does not provide a lawful predicate for a blanket search of the vehicle upon the lawful arrest of an automobile driver for a traffic offense. Be it remembered that the basis of a search when an arrest for a traffic violation is involved is the protection of the officer and the prevention of escape as distinguished from the purpose of discovering evidence or contraband and thus the limitation, if any, on the right to search the vehicle should properly be confined to the scope of the search, that is, the area. Such limitation is perfectly consistent with the general rules governing searches and seizures with respect to other offenses. Obviously the search must be consistent with its avowed purpose. If there is a lack of relation between the scope of the search and the offense for which the arrest was made the search incident to the arrest is unreasonable.
This court holds that circumstances in addition to the arrest should not be necessary to justify a search of the vehicle for the purpose of finding weapons and means of escape. It must be consistent with the purpose but no circumstances need appear to the officer which would lead him to reasonably believe that the arrestee may try to escape, other than the fact of the arrest itself, in order to justify a search by the officer to protect himself.
IX
It is therefore concluded that a search of those areas reasonably necessary for the protection of the policeman may be made, and this right is based upon the fact that an arrest has been made and the officer has a right to protect himself and prevent escape. There is a dearth of cases on this point, nevertheless, the area of permissible search will be governed by the proximity of the arrestee to the point of search and the possibility of the arrestee having access to the area or place searched while he is in the custody of the arresting officer.
This conclusion is perfectly consistent with State v. Call, 8 Ohio App.2d 277.
It is argued that because the door of Coles' vehicle was closed and he was outside, weapons on the inside were thereby rendered inaccessible and thus the necessity for protection to the officer vanished. This would be the case had the officers handcuffed Coles and removed him from the close proximity to his vehicle. This was an arrest for an offense that is referred to as a minor traffic offense. Coles says if the officer fears for his safety from the minor traffic offender who is outside his car with doors closed then put him in chains or draw the service pistol and hold him at bay while attending to all the details necessary to complete the apprehension for the offense. But under no conditions or circumstances can you search my car for weapons. The answer to such argument, of course, is that it is unrealistic to impose rigid guidelines in this one isolated phase of law enforcement. Furthermore there has been no evidence of or outcry against frivolous police searches of the citizen whose normal contact with the law is a traffic violation.
In the instant case who can say that Coles may or may not have gone for his gun while the officers routinely went about their business. And who can say that had they been successful without incident in handing defendant a ticket for the offense that upon entry into the vehicle he would not turn the gun upon the officer.
The traffic officer is empowered to make an arrest for an offense committed in his presence. Only upon eyeball to eyeball confrontation does he have any notions concerning the driver he has stopped. Of necessity his judgment to search for weapons or not must be swift and decisive to be effective. This court does not particularly relish the idea of having dead policemen on its conscience. When the police overstep the bounds of good sense in making searches the people will rise to the occasion and demand that the right to make a summary arrest be confined to a limited type of serious cases where a search would not be considered as offensive as one made incident to a minor traffic violation.
Of course in the instant case the court is of the opinion that the facts show additional and special circumstances amounting to probable cause to search the vehicle for weapons such as are required by most of the authorities. Coles, however, contended that the additional facts and circumstances were not sufficient and the parties requested that the court hammer out a definitive decision on the legality of a search conducted after a minor traffic arrest which was not made for an improper motive.
Coles and his supporters urge that the doctrinal refinements be imposed in minor traffic violations as the true interpretation of our sacred bill of rights. In doing so would it any longer be recognized as a charter of government and as a guarantee of protection of the weak against the aggressions of the strong, or rather as a charter of unbridled license and a certificate of character to the criminal classes.
X
The motion for reconsideration of the motion to suppress the evidence, namely, the pistol found under the seat of Coles' automobile, is overruled.
Case No. 23866, State of Ohio v. Walter Lee Coles on the docket of this court has been examined. The court thereby judicially notices that Coles pled guilty to the charge of Armed Robbery on January 29, 1963.
In accordance with the facts and circumstances the court finds beyond a reasonable doubt that the defendant, Walter Lee Coles, is guilty of carrying concealed a dangerous weapon as charged in the indictment.