Summary
In Kessler, officers contend the passenger's furtive movements as police approached, the car fitting the description of a vehicle involved in recent burglaries in the area, the observation of the car in the same area several days before, the vehicle ran a red light when the police began to follow, and the officer recognizing the defendant from previous arrests for burglaries in the area justified a warrantless search.
Summary of this case from State v. SnowOpinion
No. 77-183
Decided March 22, 1978.
Criminal law — Search and seizure — Warrantless search of automobile — Constitutionally permissible, when.
Where police officers observe an automobile resembling one mentioned in connection with recent burglaries, then follow it after noticing the passenger in the automobile appear to duck down out of sight, and thereafter stop the automobile for a minor traffic violation and arrest the driver, who cannot produce a driver's license or proof of ownership of the automobile and whom the officers recognize as having been previously arrested for burglaries in the area, a subsequent limited search by the officers of the front-passenger section of the automobile without a warrant is not unreasonable and is constitutionally permissible within the ambit of the United States Supreme Court decisions in Carroll v. United States, 267 U.S. 132; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216; Chambers v. Maroney, 399 U.S. 42; and Coolidge v. New Hampshire, 403 U.S. 443.
APPEAL from the Court of Appeals for Cuyahoga County.
On March 18, 1975, a burglary occurred at the residence of Carolius Mueller, 18502 Ferncliffe Avenue in Cleveland, and property was stolen therefrom.
On April 4, 1975, Cleveland Police Officers Thomas Schraf and Leslie Stakho were patrolling by police vehicle when they observed the defendant, Richard Kessler, driving a gray 1966 Dodge with black fenders, and a passenger, Robin Rightson, in the front seat. The automobile fit a description given the police officers of a car mentioned in connection with recent burglaries in that area. The officers remembered seeing the automobile in the same area a few days before.
As the automobile driven by Kessler passed the police vehicle, the passenger appeared to duck down out of sight. The officers followed the Kessler vehicle and stopped the car after observing it go through a red stop light.
As Officer Schraf approached the stopped automobile, he recognized the driver, Richard Kessler, as having been previously arrested for burglaries in that area. The officer asked defendant for his driver's license and proof of ownership of the automobile, which documents the defendant could not produce. Defendant was taken into custody and placed in the back seat of the police vehicle, which was specially equipped for detention purposes. The passenger was also temporarily detained and placed in the back seat of the police car.
Officer Schraf then conducted a limited search of the Kessler automobile. No consent was given for the search. At the time of the search, Officer Schraf had neither an arrest warrant for defendant nor a search warrant for defendant's automobile.
During the search, the officer discovered under the front seat a cross-reference directory for the Westpark area of Cleveland. Under the dashboard, Officer Schraf found a "walkie-talkie," a butter knife, a pair of rubber gloves, and a sheet of manila paper listing phone numbers and addresses from the cross-reference directory. In the glove compartment, the officer found another "walkie-talkie."
Defendant was indicted by the grand jury of Cuyahoga County for one count of aggravated burglary, R.C. 2911.11, and grand theft, R.C. 2913.02, in connection with the burglary of Carolius Mueller's home. Defendant was tried before a jury in the Court of Common Pleas of Cuyahoga County on September 17-18, 1975.
During the trial, defendant moved the court to suppress all the evidence obtained by the Cleveland Police Officers from the warrantless search of defendant's automobile following his arrest, on the ground that such a search was unconstitutional. The "walkie-talkies" were suppressed from evidence because the trial court ruled that the search of the glove compartment was too broad and that the prosecution failed to show which "walkie-talkie" was found under the dashboard and which was found in the glove compartment. All the other items were allowed in evidence over defense objection.
Defendant further moved the court to deny admission of the evidence removed from his automobile during the search because such evidence was irrelevant. This motion was overruled.
The jury found defendant guilty as charged, but the trial court, sua sponte, reduced the charge of aggravated burglary to burglary. Defendant appealed this conviction.
The Court of Appeals reversed the conviction and remanded the cause to the Court of Common Pleas. The grounds for reversal were that the trial court erred in overruling defendant's motion to suppress the evidence obtained in a warrantless search of defendant's automobile in violation of defendant's constitutional right against unreasonable searches and seizures, and in overruling defendant's objections to the admission of some of that evidence as irrelevant to the alleged burglary of March 18, 1975.
The cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Paul A. Hrisko, for appellant.
Messrs. White, Milano, Jurek Miller and Mr. Fred Jurek, for appellee.
The Court of Appeals held that the search of defendant's automobile by Cleveland Police Officer Thomas Schraf and the seizure of articles admitted in evidence during his trial for aggravated burglary were unreasonable and in violation of defendant's right to be secure against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and the provisions of Section 14, Article I of the Constitution of Ohio.
The Fourth Amendment to the United States Constitution reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The provisions of Section 14, Article I of the Ohio Constitution are essentially the same.
The instant cause involves the warrantless search of defendant's automobile subsequent to his being stopped on the highway by police officers and arrested for a minor traffic violation (running a red stop light).
It is well-settled that warrantless searches are " per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-455; Katz v. United States (1967), 389 U.S. 347, 357. The state has the burden of establishing the application of one of the exceptions to this rule designating warrantless searches as "per se unreasonable." State v. Call (1965), 8 Ohio App.2d 277; State v. Person (1973), 34 Ohio Misc. 97; United States v. Jeffers (1951), 342 U.S. 48, 51.
The state argues, and we agree, that the search of defendant's automobile was reasonable under the "automobile exception" enunciated by the United States Supreme Court in Carroll v. United States (1925), 267 U.S. 132. " Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained." Chambers v. Maroney (1970), 399 U.S. 42, 51; Coolidge v. New Hampshire, supra, at page 460; Dyke v. Taylor Implement Mfg. Co. (1968), 391 U.S. 216.
In the instant cause, the exigent circumstances necessary to bring the search of defendant's automobile within the ambit of Carroll are present. The car was stopped on the public highway. Kessler's passenger, Robin Rightson, was alerted to the intentions of the police, was not placed under full police custody, and could have readily moved the automobile, thus, "remov[ing] evidence from official grasp." Cardwell v. Lewis (1974), 417 U.S. 583, 590. However, the issue remains whether Police Officer Schraf had probable cause to search the defendant's automobile.
The requisite probable cause is defined in Carroll, supra, at page 149, as follows:
"* * * a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction."
Violation of a traffic ordinance does not, in itself, justify a search of the offender's automobile. State v. Woodford (1971), 26 Ohio Misc. 51, 55. The police must have "`probable cause' to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search." Dyke v. Taylor Implement Mfg. Co., supra, at
The facts which the state contends constitute probable cause to search defendant's car include: the furtive movement of the passenger ducking down out of sight after spotting the police vehicle; the car fit the description given the officers of a vehicle involved in recent burglaries in the area; the officers had observed the car in the same area several days before; the auto ran a red light when the police vehicle began to follow; and Officer Schraf recognized the defendant as one who had been previously arrested for burglaries in the area. In addition, there is the failure of Kessler to produce a driver's license or show proof of ownership of the automobile.
Furtive movements alone are not sufficient to justify the search of an automobile without a warrant. People v. Superior Court of Yolo County (1970), 91 Cal.Rptr. 729, 478 P.2d 449. However, where a furtive movement has been made by occupants of a vehicle in response to the approach of police officers, the addition of other factors may give rise to a finding of probable cause to search the vehicle. Such other factors have included: police knowledge of recent burglaries in the area, People v. Martinez (1970), 6 Cal.App.3d 373, 86 Cal. Rptr. 49; police knowledge of prior criminal involvement by the driver of the automobile, Trusley v. State (Tex.Crim.App. 1974), 505 S.W.2d 861; In re K. (1970), 14 Cal.App.3d 94, 92 Cal.Rptr. 39; and the failure of the driver to produce a driver's license or identification, People v. Goodrick (1970), 11 Cal.App.3d 216, 89 Cal.Rptr. 866; People v. Watkins (1974), 23 Ill. App.3d 1054, 320 N.E.2d 59.
Furtive or suspicious gestures were also considered in the determination of probable cause in the Ohio cases of State v. Martinez (1973), 36 Ohio Misc. 29; and State v. Gaines (1974), 40 Ohio App.2d 224.
Although the above cases are not determinative of the issue herein, all the enumerated factors are present in the instant cause. Therefore, we hold that, under the facts herein, Officer Schraf had reasonable cause to believe that the automobile driven by defendant contained contraband subject to seizure or concealed the instrumentality or evidence of a crime before he made the warrantless search of that automobile. The officer had "more than a mere suspicion and under the circumstances the officer's actions were nothing more than good diligent police work at the proper time." State v. Gravin (1974), 44 Ohio App.2d 303, 309.
In view of the exigent circumstances and presence of sufficient probable cause, the limited search of the front-passenger section of defendant's automobile by Officer Schraf was reasonable in its scope and intensity, and constitutionally permissible. The trial court did not err in admitting in evidence those articles seized in the aforementioned search of defendant's automobile. Appellant's first proposition of law is well taken.
The Court of Appeals also held that the butter knife and the piece of manila paper listing homes in the Kamm's Corner area of Cleveland were irrelevant and should not have been admitted in evidence.
Although the manila paper did not list the Mueller home, it did contain many of the addresses in the immediate area of the burglary in question. As such, it is directly linked to, and holds as much probative value as, the cross-reference directory which was held to be relevant by both the trial court and Court of Appeals. The manila piece of paper was properly admitted in evidence.
We agree that the butter knife was irrelevant and should not have been admitted. However, such error by the trial court was harmless beyond a reasonable doubt. See State v. Dickerson (1907), 77 Ohio St. 34; Chapman v. California (1967), 386 U.S. 18.
Accordingly, the judgment of the Court of Appeals is reversed.
Judgment reversed.
HERBERT, SWEENEY and LOCHER, JJ., concur.
CELEBREZZE, J., concurs in the judgment.
O'NEILL, C.J., and W. BROWN, J., dissent.