[Cite as State v. Hamilton,
2011-Ohio-3835.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95720
STATE OF OHIO
DEFENDANT-APPELLANT
vs.
CHRISTOPHER HAMILTON
PLAINTIFF-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Common Pleas Court
Case No. CR-536194
BEFORE: E. Gallagher, J., Blackmon, P.J., and Rocco, J.
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RELEASED AND JOURNALIZED: August 4, 2011
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Brad S. Meyer
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Timothy F. Sweeney
Law Office-Timothy Farrell Sweeney
The 820 Building, Suite 430
820 West Superior Avenue
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} The state of Ohio appeals from the decision of the trial court, granting
Christopher Hamilton’s motion to suppress. The state argues that the arresting officer acted
within the bounds of the law when searching Hamilton’s vehicle and, therefore, the trial court
erred when granting the motion to suppress. Finding no merit to this appeal, we affirm the
decision of the trial court.
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{¶ 2} On April 21, 2010, a Cuyahoga County Grand Jury indicted Hamilton with one
count of having a weapon while under disability and one count of carrying a concealed
weapon arising from an April 7, 2010 arrest made by Sergeant Darren Senft of the
Warrensville Heights Police Department. After Senft arrested Hamilton, he searched his
vehicle and recovered a .40 caliber Glock semi-automatic handgun.
{¶ 3} On June 3, 2010, Hamilton moved to suppress the handgun. The trial court
conducted a hearing on that motion on July 28, 2010, at which time the state presented the
testimony of one witness, Senft. The trial court’s factual findings are as follows:
{¶ 4} “The following facts are derived exclusively from the testimony of the state’s
sole witness, Sgt. Darren Senft:
“On April 7, 2010, at approximately 2:00 a.m. Warrensville Heights Police Sergeant
Darren Senft (‘Sgt. Senft’) was called to handle a disturbance involving a number of
females. While he was dealing with these females ‘it was learned’ that they were
witnesses to a shooting incident occurring in Maple Heights, Ohio. Maple Heights
police were contacted and informed that Warrensville Heights police had material
witnesses to the Maple Heights incident.
“A Maple Heights officer showed up on-scene. ‘[W]hile we were assisting them
with interviewing all the females there was a dark-colored late-model black Buick
Regal that pulled out onto the street.’ Tr. 21:5. ‘The vehicle pulled on to [sic] the
street, quickly backed out and drove off at a high rate of speed.’ Tr. 21:9. Sgt.
Senft testified that because police vehicles were ‘completely blocking the street at that
point in time,’ the only thing the driver of the Buick could have done was turn around.
Tr. 21:9; 33:7.
“At that time, Sgt. Senft did not know anything about the defendant’s vehicle, but he
was asked by the Maple Heights officer to pursue it and stop it. Tr. 21:21; 22:2;
47:18. According to Sgt. Senft, ‘I went after the vehicle, looked for it. And I did
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find the vehicle as it was pulling onto Warrensville Center Road, I got behind the
vehicle and it was traveling slower than normal. It went from the right lane into the
left lane without using its turn signal … I initiated a traffic stop for traveling at
lower than posted speeds.’ Tr. 22:16. At this time it was Sgt. Senft’s
understanding ‘[t]hat the party in the vehicle may have been involved in an incident in
Maple Heights.’ Tr. 30:10.
“Before the vehicle came to a complete stop, Sgt. Senft noticed the driver ‘leaning
over towards the right passenger side … And continued to lean over in that area and
then quickly sat back up in his seat.’ Tr. 23:15; 24:8. At that time, ‘we conducted
a felony stop. I had a backup officer at this point. We conducted a felony stop of
the vehicle, ordered him out at gunpoint and he was taken back to my vehicle. He
was taken into custody without any incident. He was handcuffed, placed in my car.’
Tr. 25:22. At this point, defendant ‘was no longer a threat.’ Tr. 48:23.
“Sgt. Senft testified that ‘under normal circumstances [he] would not have arrested
someone for failure to use a signal before changing lanes. … [e]specially if [he]
found out later during [the] investigation [that the driver] had no active warrants, …
a valid driver’s license, and … insurance.’ Tr. 36:7, 37:8. Sgt. Senft testified
further that it was not until he had the defendant in his squad car that he asked for and
obtained defendant’s driver’s license. Tr. 34:24, 35:3. The State produced no
evidence or testimony that defendant was charged with or cited for any traffic
offenses.
“Sgt. Senft testified that he ‘held Mr. Hamilton for Maple Heights’ and ‘searched’ his
vehicle; that ‘while searching his vehicle, incident to the tow, a loaded .40 caliber
semiautomatic Glock was located and found inside of an unlocked glove box ….’
Tr. 27:6. He testified that ‘after the vehicle was inventoried, Maple Heights asked us
to hold on to it … so the vehicle was placed in our rear lot.’ Tr. 29:18, 39:11.
“According to Sgt. Senft, Warrensville Heights has a tow policy; this policy was never
produced at the hearing. Sgt. Senft testified that ‘[w]henever we tow a vehicle we
complete a tow inventory on the vehicle.’ Tr. 28:5, 17. Sgt. Senft testified further
that he is allowed to have a car towed and search the vehicle ‘[u]nder traffic arrests, if
no owner is present, abandoned motor vehicles ….’ Tr. 28:19. Then Sgt. Senft
testified that defendant’s car was not towed; that it was driven by an officer to the
Warrensville Police Department. Tr. 39:25.
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“Sgt. Senft testified that after defendant was handcuffed and in custody in the squad
car, getting a search warrant was ‘an option,’ and that he can ‘type up a search
warrant in 20 minutes.’ Tr. 38:10; 48:21. Finally, Sgt. Senft testified that ‘it would
have been no problem to get a search warrant … [b]ut if I’m towing a vehicle I’m
also not obtaining a search warrant’; that ‘[a]s a normal course, it’s not necessary, if
you’re towing a vehicle, to get a search warrant.’ Tr. 41:24; 48:15.”
{¶ 5} On September 9, 2010, the trial court granted the motion to suppress. The
state appeals, raising a single assignment of error:
{¶ 6} “The trial court erred when it granted Appellee’s motion to suppress.”
{¶ 7} The state argues that Senft acted lawfully in searching Hamilton’s car
because (1) Hamilton’s traffic violations and his furtive movements towards the passenger
compartment provided the reasonable suspicion that Hamilton was armed, which allowed for
a stop and search of the passenger compartment; and (2) the search was a valid inventory
search. We disagree with both arguments.
{¶ 8} “Our standard of review with respect to motions to suppress is whether the trial
court’s findings are supported by competent, credible evidence. … This is the appropriate
standard because ‘in a hearing on a motion to suppress evidence, the trial court assumes the
role of trier of facts and is in the best position to resolve questions of fact and evaluate the
credibility of witnesses. However, once we accept those facts as true, we must
independently determine, as a matter of law, and without deference to the trial court’s
conclusion, whether the trial court met the applicable legal standard.’” State v.
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Lloyd (1998), 126 Ohio App.3d 95,
709 N.E.2d 913; State v. Crosby, Cuyahoga App. No.
86393,
2006-Ohio-2227.
{¶ 9} The Fourth Amendment to the United States Constitution provides: “the right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” The state bears the burden of establishing that a warrantless search
is reasonable pursuant to one or more exceptions to the Fourth Amendment’s warrant
requirement. Xenia v. Wallace (1998), 37 Ohio St.3d 216,
524 N.E.2d 889, paragraph two
of the syllabus; Crosby. Here, the state relied upon both reasonable suspicion that Hamilton
was armed and the “inventory search” exception.
{¶ 10} We find the state’s argument that Hamilton’s actions provided the reasonable
suspicion necessary to allow for a search of the passenger compartment misplaced. The
state’s reliance on State v. Thomas, Cuyahoga App. No. 93918, 2010-Ohio-4132, is factually
distinguishable. In Thomas, this Court held that where the suspect is in an automobile and
the officer has reasonable articulable suspicion that the suspect is armed or dangerous, the
officer may search those areas of the passenger compartment that could contain weapons.
However, this case, unlike Thomas, involved a search incident to an arrest. Senft testified
that he arrested and placed Hamilton in the back of the police car well before he searched
Hamilton’s vehicle. The defendant in Thomas, was not under arrest at the time of the search
and, as the Thomas court noted, “once Thomas was issued a traffic citation, he would be
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returning to his vehicle and have access to the console.” Hamilton, by contrast, had been
placed under arrest and would not be returning to his car but, instead, would be on his way to
the Maple Heights Police Department. Accordingly, we find no merit to this portion of the
state’s argument.
{¶ 11} We agree with the trial court’s conclusion that Senft had no probable cause to
place Hamilton under arrest. Senft observed Hamilton make two traffic violations and then
lean over into the passenger compartment area. He described this as a furtive gesture, which
precipitated a felony stop. Senft immediately placed Hamilton under arrest at gunpoint.
However, Senft provided no testimony or other evidence to explain why he arrested
Hamilton. At the time of Hamilton’s arrest, the Maple Heights Police Department, not Senft
of the Warrensville Heights Police Department, merely suspected that Hamilton may have
been involved in the shooting in Maple Heights. Specifically, Senft testified that “we were
called to … a disturbance involving a number of females. Evidently those females were
involved in an incident in Maple Heights during which there was a shots-fired call. There
was a number of shots fired, a number of females involved during that incident ….” Tr.
21. The state presented no evidence that any male was involved in this shots-fired incident.
The trial court correctly concluded that while this may be sufficient to justify a Terry stop, it
could not justify an arrest. See Terry v. Ohio (1968), 392 U.S. 1,
88 S.Ct. 1868, 20
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L.Ed.2d 889.
{¶ 12} Additionally, at the time Sergeant Senft stopped Hamilton, he had committed
only minor traffic violations for which he could not lawfully be arrested. Both Section 14,
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Article I of the Ohio Constitution and R.C. 2935.26 prohibits warrantless arrests for minor
misdemeanors unless certain statutorily enumerated exceptions apply. State v. Golly,
Cuyahoga App. No. 89481, 2008-Ohio-447; State v. Brown,
99 Ohio St.3d 323,
2003-Ohio-3931,
792 N.E.2d 175. There is no record before this court that the state
presented evidence that any of the R.C. 2935.26 exceptions applied.
{¶ 13} Finally, we deal with the state’s claim that the search of Hamilton’s car was a
lawful “inventory search.” The inventory exception to the Fourth Amendment’s warrant
requirement permits police to conduct a warrantless search of a vehicle in order to inventory
its contents after the vehicle has been lawfully impounded. State v. Mesa, 87 Ohio St.3d
105,
1999-Ohio-253,
717 N.E.2d 329; Crosby. The rationale for excluding inventory
searches from the warrant requirement is that inventory searches are an administrative or
caretaking function, rather than an investigative function. S. Dakota v. Opperman (1976),
428 U.S. 364,
96 S.Ct. 3092,
49 L.Ed.2d 1000; Crosby.
{¶ 14} In a departure from long-established precedent, the United States Supreme
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R.C. 4511.39(B) defines failure to use a turn signal before turning or
changing lanes as a minor misdemeanor traffic offense.
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Court significantly narrowed the parameters of searches conducted incident to arrests. In
Arizona v. Gant (2009), 556 U.S. 332,
129 S.Ct. 1710,
173 L.Ed.2d 485, the Supreme Court
specifically held that police officers may search a vehicle incident to arrest only where the
suspect is within reaching distance of the vehicle, or there is reason to believe evidence of the
arresting offense will be present in the vehicle. Id. at 491. This court has since upheld the
reasoning outlined in Gant, see State v. Thomas, Cuyahoga App. No. 91891,
2009-Ohio-3461.
{¶ 15} In agreeing with Gant that the motion to suppress should have been granted,
the Supreme Court reasoned that because Gant had been arrested, handcuffed, and detained in
a patrol car, he had no possible ability to regain access to his vehicle. Id. Further, Gant
was arrested for driving with a suspended license, for which no related evidence of this
conduct could be found inside the vehicle.
Id. The court held the search to be invalid.
Id.
{¶ 16} Similarly, in Thomas, police officers observed Thomas failed to use his turn
signal and arrested him for driving without a license, handcuffed him and placed him in the
back of the patrol car. The officers then searched the vehicle and found two bags of crack
cocaine in the glove box. Id. Following the reasoning outlined in Gant, this Court held
that because the officers handcuffed and placed Thomas in a patrol car where he no longer
posed a risk to officer safety, and because there would be no evidence of the offense of
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driving with a suspended license present in the vehicle, the search of Thomas’s vehicle was
illegal. Id.
{¶ 17} Accordingly, because Senft arrested, handcuffed, and placed Hamilton in the
rear of the police car, Hamilton neither posed a threat to the officers’ safety, nor did he have
any possible ability to regain access to his vehicle. Moreover, Senft could not possibly
expect to find evidence of the minor traffic violations Hamilton committed inside the vehicle.
A search incident to arrest under these circumstances is clearly not permitted under Gant and
Thomas.
{¶ 18} Furthermore, the inventory search exception to the warrant requirement does
not apply in the present case because Hamilton’s vehicle was never lawfully impounded.
See Crosby. There was no evidence in the record to indicate the vehicle was unlawfully
parked, which would have required a tow. Additionally, the state produced no evidence of
any legitimate reason to have the vehicle towed or impounded: Hamilton produced a valid
driver’s license, and there was no evidence that his vehicle was unregistered or unsafe.
Moreover, Senft admitted that Hamilton’s vehicle was not actually towed; another officer
drove the vehicle from its parking spot to the Warrensville Heights Police Station. Senft
simply testified that the vehicle was searched incident to a tow, and that the Maple Heights
Police Department wanted the vehicle.
{¶ 19} Based on the foregoing, we agree with the trial court’s conclusion that the
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search of Hamilton’s vehicle was illegal. Accordingly, the state’s sole assigned error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and
KENNETH A. ROCCO, J., CONCUR
