State v. Bradley , 26 Ohio App. 2d 229 ( 1971 )

I concur in the judgment and in the opinion except as to that part in which the majority finds that a valid search of the automobile occurred as an incident to the arrest.

The right to search an automobile without a search warrant as an incident of a valid arrest, or the right to search an automobile upon probable cause without first arresting one of its occupants, has been so repeatedly recognized by the United States Supreme Court and other courts in this country that a citation of authorities is unnecessary.

These rules, however, are subject to the salutary limitation that exceptions to the requirement of a search warrant may not be used as a pretext to search for evidence unrelated to the offense for which the arrest is made.

This limitation is well stated in Taglavore v. United States (9 Cir.), 291 F.2d 262, which reads as follows at page 265:

"However, there is one fixed and essential prerequisite to all of these searches: in each case there must be a valid, bona-fide arrest to which the search is merely incident. Where the arrest is only a sham or a front being used as an excuse for making a search, the arrest itself and the ensuing search are illegal. Worthington v. United States (6 Cir., 1948),166 F.2d 557; Henderson v. United States (4 Cir., 1926), 12 F.2d 528, 51 A. L. R. 420. `An arrest may not be used as a pretext to search for evidence.' United States v. Lefkowitz (1932), 285 U.S. 452,467, 52 S. Ct. 420, 424, 76 L. Ed. 877. To put it in other words, the search must be incident to the arrest, and not vice versa."

The arrest in this case was upon warrants for leaving the scene of an accident and assault with a motor vehicle. As to the right to search after a traffic arrest, see State v. Call,8 Ohio App. 2d 277. With respect to why the search was conducted, the following testimony is pertinent. Sheriff Howell testified as follows:

"Q. You were there to serve him on the warrants you had, weren't you?

"A. That's what we done, too.

"Q. But you weren't looking for anything in regard to those charges, were you?

"A. Not until after we had him under arrest, no sir.

"Q. Even after you had him under arrest were you looking foranything in respect to the charges out of Lawrence County?

"A. No, I had good belief.

"Q. Not what you had good belief about. Were you hunting foranything relative to those charges?

"A. No." (Emphasis added.)

He further testified as follows:

"A. Mr. Bradley stood behind the car till Mr. Hood arrived.

"Q. And then the papers were served on him?

"A. Yes.

"Q. And then the search was made?

"A. I asked him if he had marijuana."

Mary Dustin Bradley, wife of the accused, and in the automobile at the time of the arrest, testified as follows.

"The Witness: After he had been stopped and he was already out of the car, you know, and everything, I don't know if it was before they started looking or not, I don't remember, but Mr. Howe said something about dope and I said, what do you mean, dope, and he said he was looking, I think at that time when he said it, I can't tell you exactly, I didn't know what he was talking about but that's the only time, I think, that's when he was searching, I believe, I couldn't swear to it."

In Barnes v. State, 25 Wis. 2d 116, 130 N.W.2d 264, wherein a search had followed an arrest for a traffic violation, the Supreme Court of Wisconsin in invalidating the search noted the following at pages 126 and 127.

"While defendant conceded the lawfulness of the arrest, we deem it advisable to add the observation that the type of search here conducted raises a strong suspicion that the original arrest for the minor traffic offense committed was but a pretext to search defendant for narcotics. Cf. Taglavore v. UnitedStates (9th Cir. 1961), 291 F.2d 262, 265. As the United States Supreme Court declared in United States v. Lefkowitz (1932),285 U.S. 452, 467, 52 S. Ct. 420, 424, 76 L. Ed. 877. `An arrest may not be used as a pretext to search for evidence.'"

In our case there is no suspicion that the search was for something unconnected with the arrest, for from the testimony above quoted, the searching officer candidly admits the search was for "dope," the seed of a crime unconnected with the traffic offenses.

The Taglavore decision has been cited in a long line of decisions including Lane v. Commonwealth (Ky.),386 S.W.2d 743; United States v. Harris (6 Cir.), 321 F.2d 739; UnitedStates v. One 1963 Cadillac Hardtop (E. D. Wis.),224 F. Supp. 210.

The "good belief" that the searching officer had, and which, undoubtedly, was the real basis for the arrest and search was not further amplified in the record. Hence, there could not be a valid search of the motor vehicle on the probable cause exception without reference to the arrest, absent a showing the "good belief" was in fact probable cause to search. The state also relied upon the ground that defendant consented to the search. Testimony was given, and controverted, that both the accused and his wife consented. Some hours after the arrest, the accused gave a written statement wherein he stated in part the following: "I give the officers permission to search my car because I did not know marijuana was considered dope."

In this respect, it has been held to be voluntary consent where a person permits a search in the mistaken belief nothing incriminating will show up. See U.S. v. Dornblut,261 F.2d 949; U.S. v. DeVino, 190 F. Supp. 483.

The burden was on the state to establish consent. The evidence was conflicting. I assume the trial court properly followed the law and overruled the motion on consent since the search incidental to arrest was clearly invalid. The trial court had the opportunity to observe the witnesses and weigh their credibility. There being evidence to support the trial court's decision, I cannot say error intervened in this respect and concur in overruling the first and second assignments of error.