[Cite as State v. Frazee, 2015-Ohio-4786.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 26699 : v. : Trial Court Case No. 2014-CR-4240 : STEVEN FRAZEE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :
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OPINION
Rendered on the 20th day of November, 2015.
MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant
JAMES M. CALHOUN, II, Atty. Reg. No. 0090173, Assistant Montgomery County Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee
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WELBAUM, J. -2-
{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the decision of the
Montgomery County Court of Common Pleas suppressing heroin that was discovered in
the pocket of a coat worn by defendant-appellee, Steven Frazee. The State contends
the heroin should not have been suppressed because it was discovered during a search
incident to a lawful arrest. In addition, the State contends the heroin would have been
inevitably discovered during routine jail booking procedures. We agree with the State;
therefore, the judgment of the trial court will be reversed and remanded for further
proceedings.
Facts and Course of Proceedings
{¶ 2} On February 13, 2015, Frazee was indicted by the Montgomery County
Grand Jury for one count of possessing heroin in amount less than one gram in violation
of R.C. 2925.11(A). The charge arose from Frazee’s encounter with Montgomery
County Sheriff’s Deputy John Eversole after he discovered heroin inside Frazee’s coat
pocket. Frazee pled not guilty to the possession charge and then filed a motion to
suppress the heroin as evidence at trial. The trial court then held a hearing on the matter,
during which Eversole was the only witness to testify. Eversole provided the following
testimony.
{¶ 3} At approximately 10:30 a.m. on November 14, 2014, Eversole was patrolling
an area in Jefferson Township, Montgomery County, Ohio, when he observed a male and
female, later identified as Frazee and Morgan Bryant, walking eastbound on 3rd Street.
Eversole decided to stop his cruiser and speak with Frazee and Bryant because he did -3-
not recognize them as being from the area, and because the area was known to have a
high level of criminal activity. When Eversole pulled up next to Frazee and Bryant, he
introduced himself and asked for permission to speak with them, to which they both
agreed. Eversole then asked Frazee and Bryant if they would provide him with their
identification information. In response, both Frazee and Bryant provided Eversole with
their Ohio identification cards. Eversole then ran their information through his computer
to check for any outstanding warrants. Upon running their information, Eversole
discovered that Frazee had an outstanding warrant for his arrest.
{¶ 4} Eversole advised Frazee that he had an outstanding warrant for his arrest
and ordered him to place his hands behind his back so he could be handcuffed. In
response, Frazee asked Eversole if he could first remove one of the two coats he was
wearing. Because the coats were very bulky, Eversole allowed Frazee to remove his
exterior coat so that Frazee could be handcuffed more comfortably. Frazee then asked
Eversole if he could give the coat he removed to Bryant. Eversole refused Frazee’s
request and instead had Frazee place his coat on the trunk of the cruiser, which was one
foot away. Eversole testified that he did not allow Frazee to give the coat to Bryant for
officer safety reasons.
{¶ 5} Thereafter, Eversole placed Frazee in handcuffs and conducted a thorough
search of Frazee’s person as a search incident to arrest. Eversole searched Frazee at
the rear of the cruiser while Bryant was standing at the front of the cruiser. During the
search, another officer arrived on the scene to assist Eversole in watching Bryant. Once
Eversole confirmed that there were no weapons or contraband on Frazee’s person, he
then placed Frazee in the back of his cruiser. Eversole then retrieved and searched the -4-
coat that Frazee had been wearing.
{¶ 6} During the search of the coat, Eversole retrieved a cellophane package from
the left front-breast pocket. Eversole squeezed the package and felt a hard object inside.
From his training and experience, Eversole suspected that narcotics were inside the
package. As a result, Eversole opened the package and discovered a chunky brown
substance that he believed to be, and was later confirmed to be, heroin. After Eversole
discovered the heroin, Frazee asked if he could take the coat with him to jail, to which
Eversole permitted after removing the heroin. Eversole then placed the coat at the front
of his cruiser with Frazee’s other belongings and transported him to jail. Eversole
indicated that Frazee was booked at the Montgomery County Jail without incident.
{¶ 7} Upon hearing Eversole’s testimony, the trial court granted Frazee’s motion
to suppress the heroin on grounds that the warrantless search of the coat did not qualify
as a search incident to arrest. In so holding, the trial court relied on Frazee’s argument
that the coat was not on Frazee’s person and not within his control at the time it was
searched. The State now appeals from this decision, raising the following single
assignment of error for review.
BECAUSE THE HEROIN IN FRAZEE’S JACKET WAS FOUND DURING A
SEARCH INCIDENT TO A LAWFUL ARREST AND WOULD HAVE
INEVITABLY BEEN DISCOVERED DURING ROUTINE JAIL BOOKING
PROCEDURES, THE TRIAL COURT ERRED IN FAILING TO ADMIT THE
EVIDENCE.
{¶ 8} Under its sole assignment of error, the State argues that the trial court erred
in suppressing the heroin found in Frazee’s coat pocket because it was discovered during -5-
a search incident to a lawful arrest. Specifically, the State argues that the search incident
to arrest exception applies despite the fact that Frazee did not have control over the coat
while it was being searched, as the State maintains it only matters that the coat was in
Frazee’s control at the time of his arrest. The State also argues that even if the search
of Frazee’s coat does not qualify as a search incident to arrest, the heroin would have
been inevitably discovered by law enforcement during a routine inventory search of the
coat when Frazee was booked into jail.
Standard of Review
{¶ 9} In ruling on a motion to suppress, the trial court “assumes the role of the trier
of fact, and, as such, is in the best position to resolve questions of fact and evaluate the
credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d
498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116,
¶ 30. Accordingly, when we review suppression decisions, we must accept the trial
court’s findings of fact if they are supported by competent, credible evidence. Retherford
at 592. “Accepting those facts as true, we must independently determine as a matter of
law, without deference to the trial court’s conclusion, whether they meet the applicable
legal standard.” Id.
Search Incident to Arrest
{¶ 10} Under the Fourth Amendment, a search absent a warrant is per se
unreasonable, “subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 -6-
(1967). One such exception is for searches incident to a lawful arrest. Chimel v.
California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The search
incident to arrest exception to the warrant requirement “derives from interests in officer
safety and evidence preservation that are typically implicated in arrest situations.”
(Citations omitted.) Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d
485 (2009). Pursuant to this exception, an officer making a lawful arrest may conduct a
warrantless search of the arrestee’s person and of the area “within his immediate control.”
Chimel at 763.
{¶ 11} The area within a person’s immediate control includes “the area from within
which he might gain possession of a weapon or destructible evidence.” Id. The
Supreme Court of Ohio recently stated that “the right to search incident to arrest exists
even if the item is no longer accessible to the arrestee at the time of the search. * * * As
long as the arrestee has the item within his immediate control near the time of the arrest,
the item can be searched.” State v. Adams, Slip Opinion No. 2015-Ohio-3954, ___
N.E.3d ___, ¶ 183, citing United States v. Romero, 452 F.3d 610, 619 (6th Cir.2006) and
Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir.2001).
{¶ 12} The recent decision in Adams partially involves the search of a jacket that
yielded evidence of a homicide. The search occurred in 1985 when three officers went
to the homicide victim’s duplex to search her second-floor apartment. The occupant of
the first floor apartment, Bennie Adams, allowed the officers inside the common area of
the duplex to conduct a search. When the officers discovered that the victim’s apartment
was locked, they knocked on Adams’ apartment door and asked to use his phone so they
could call the owner of the duplex and request a key to the victim’s apartment. In -7-
response, Adams allowed the officers inside his apartment. While one of the officers
was using the phone, the other officer asked Adams if anything suspicious had been
happening lately and whether he was alone. Just after Adams told the officers that he
was alone in the apartment, the officers heard a loud bump that sounded like a door hitting
a wall. Two of the officers then went to a back bedroom to investigate and found a man
named Horace Landers hiding behind a door. Id. at ¶13-18.
{¶ 13} The officers recognized Landers as having an outstanding misdemeanor
warrant and immediately arrested and handcuffed him. Because Landers did not have
on a shirt, and it was cold outside, one of the officers grabbed a jacket for him off the floor.
The jacket was about three or four feet away from where the officers had found Landers.
As one of the officers searched the jacket for weapons, Landers told the officer that the
jacket belonged to Adams. Meanwhile, the officer searching the jacket felt a hard object
in the pocket and pulled it out. The object was the ATM card of the homicide victim.
Also in the pocket of the jacket was Adams’ welfare card. The officers immediately
arrested Adams, and after further investigation, they found more evidence pointing to
Adams as the killer; however, the homicide investigation went cold in 1986. Id. at ¶ 19-
25, 63. It was not until 2007, when the case was reopened and DNA evidence was
obtained, that Adams was charged and convicted of aggravated murder. Id. at ¶ 65-73.
In appealing his conviction to the Supreme Court of Ohio, Adams disputed the legality of
the search that resulted in the discovery of the victim’s ATM card. Id. at ¶179.
{¶ 14} Adams argued that the search of the jacket pocket could not be justified by
concerns regarding officer safety, given that Landers was already handcuffed and unable
to reach the jacket. However, in response, the Supreme Court indicated that “the right -8-
to search incident to arrest exists even if the item is no longer accessible to the arrestee
at the time of the search. * * * As long as the arrestee has the item within his immediate
control near the time of the arrest, the item can be searched.” (Citations omitted.)
Adams, Slip Opinion No. 2015-Ohio-3954, ___ N.E.3d ___ at ¶ 183.
{¶ 15} Adams also argued that the United States Supreme Court’s decision in
Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, should apply. In Gant, police
officers conducted a warrantless search of a vehicle incident to arrest after the occupant
was handcuffed and locked in a patrol car, and the officers discovered cocaine. Gant at
336. “The United States Supreme Court held that the search was unreasonable and that
police officers may search a vehicle incident to arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search (or if another Fourth
Amendment exception applies).” Adams at ¶185, citing Gant at 351.
{¶ 16} The Supreme Court of Ohio indicated that it did not have to determine
whether the search of Adams’ jacket was proper under Gant, because the search
predated Gant, and “Gant does not apply retroactively to a pre-Gant search that was
undertaken in good-faith reliance on the binding precedents at the time.” Id. at ¶ 186,
citing Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2434, 180 L.Ed.2d 285
(2011). Therefore, the Supreme Court held that the controlling case was New York v.
Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which permitted the
warrantless search of a jacket in a vehicle after the occupants had all been removed.
Adams at ¶ 186, citing Belton at 462-463. Accordingly, the court held that “[u]nder
Belton, the search of Adams’s jacket pocket in conjunction with the arrest of Landers was
constitutional.” Adams at ¶ 186. -9-
{¶ 17} While Adams declined to fully address the application of Gant, the court
indicated that the search of Adams’ jacket incident to Lander’s arrest would likely be
proper under Gant since the jacket was within Adams’ reach. Adams, Slip Opinion No.
2015-Ohio-3954, ___ N.E.3d ___ at ¶ 186. However, we note that in Adams, the jacket
searched was just within the immediate area of the arrestee at the time of the arrest as
opposed to being worn on the arrestee’s person as in the present case. We stress that
Gant does not address the search of a person; rather, Gant involved the search of the
area from which the defendant was arrested, specifically, the defendant’s vehicle. Gant
at 336. In Adams, the court did not discuss whether the holding in Gant should be
extended to cases that do not involve the search of a vehicle incident to arrest. Because
the holding in Gant is narrowly confined to the search of a vehicle incident to arrest, we
decline to extend it to the search in the present case, as this case involves the search of
an item that was on Frazee’s person.
{¶ 18} In so holding, we will follow the principle recently cited by the Supreme
Court of Ohio stating that “the right to search incident to arrest exists even if the item is
no longer accessible to the arrestee at the time of the search. * * * As long as the arrestee
has the item within his immediate control near the time of the arrest, the item can be
searched.” (Citations omitted.) Adams at ¶ 183; see, e.g., State v. Sharpe, 7th Dist.
Harrison No. 99 CA 510, 2000 WL 875342, *5 (June 30, 2000) (search of arrestee’s
backpack that he was wearing on his shoulder at the time of his arrest was a lawful search
incident to arrest even though the arresting officer searched the backpack after it had
been removed from arrestee’s possession and while the arrestee was in the cruiser);
State v. Washington, 10th Dist. Franklin No. 00AP-663, 2001 WL 436062, *3 (May 1, -10-
2001) (search of purse after arrestee was arrested and placed in a police cruiser was
lawful search incident to arrest because arrestee had control of purse at the time of her
arrest); compare State v. Myers, 119 Ohio App.3d 376, 380-381, 695 N.E.2d 327 (2d
Dist.1997) (search of defendant’s purse after she was arrested and handcuffed was not
a lawful search incident to arrest because at the time of the defendant’s arrest the purse
was laying on the table and not on her person nor within the area of her immediate
control).
{¶ 19} A search that is conducted pursuant to a search incident to arrest may
extend to the personal effects of an arrestee. State v. Smith, 124 Ohio St.3d 163, 2009-
Ohio-6426, 920 N.E.2d 949, ¶ 13, citing State v. Mathews, 46 Ohio St.2d 72, 75, 346
N.E.2d 151 (1976). This includes containers found on the arrestee’s person. United
States v. Robinson, 414 U.S. 218, 223-24, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)
(upholding search of closed cigarette package on arrestee’s person); State v. Jones, 112
Ohio App.3d 206, 678 N.E.2d 285 (2d Dist.1996) (opening packages removed from
arrestee’s ankles to inspect their contents was a proper search incident to a lawful arrest).
{¶ 20} In this case, it is undisputed that Frazee was lawfully arrested pursuant to
a warrant for his arrest. It is also undisputed that Frazee was wearing the coat that the
heroin was found in at the time he was stopped and detained by Eversole. After Eversole
advised Frazee that he was under arrest, Eversole permitted Frazee to remove the coat
and place it on the cruiser immediately before Eversole handcuffed Frazee and searched
his person. Therefore, the record clearly establishes that the jacket was worn by Frazee
at the time of his arrest, and thus was in Frazee’s “immediate control near the time of his
arrest.” See Adams, Slip Opinion No. 2015-Ohio-3954, ___ N.E.3d ___ at ¶ 183; Sharpe -11-
at *5 (“the mere fact that a backpack was momentarily placed on the hood of the police
cruiser prior to the actual search is inconsequential, as the backpack was only placed a
few feet away from appellee and the search occurred within moments of the point in time
it was removed from appellee’s shoulder”). In following Adams and similar precedents,
we find that the search of Frazee’s coat and its contents falls under the scope of a search
incident to arrest, as the search incident to arrest exception applies even when an item is
not accessible to the arrestee at the time of the search, and the item only needs to be in
the arrestee’s immediate control near the time of his arrest, such as the case here.
Inventory Search and Inevitable Discovery Doctrine
{¶ 21} Even if the search of Frazee’s coat and its contents did not qualify as a
search incident to arrest, we agree with the State’s argument that the heroin would still
be admissible because it would have been inevitably discovered by law enforcement
during a routine inventory search when Frazee was booked into jail. Under the inevitable
discovery doctrine, evidence obtained unconstitutionally is admissible if it “would have
been ultimately or inevitably discovered during the course of a lawful investigation.”
State v. Perkins, 18 Ohio St.3d 193, 196, 480 N.E.2d 763 (1985). “[T]he burden is on
the prosecution to demonstrate, within a reasonable probability, that law enforcement
would have discovered the evidence in question apart from the unlawful conduct.” State
v. Coston, 168 Ohio App.3d 278, 2006-Ohio-3961, 859 N.E.2d 990, ¶ 17 (10th Dist.),
citing Perkins at 196.
{¶ 22} Frazee contends the State cannot rely on the inevitable discovery doctrine
because the State failed to present evidence establishing that Frazee’s coat would have -12-
been subject to an inventory search, as Eversole failed to testify regarding the inventory
procedure.
{¶ 23} We note that “it is reasonable for police to search any container or article
on a defendant’s person * * * in accordance with established inventory procedures.”
Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949 at ¶ 13, citing Illinois v.
Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). In State v. Combs, 2d
Dist. Montgomery No. 22346, 2008-Ohio-2883, the officers who appeared at a
suppression hearing failed to testify regarding the procedure used for inventory searches
of an arrested person and their personal effects. Id. at ¶ 6. Nevertheless, despite this
lack of testimony, we held that:
[I]t is sufficiently clear that inventory searches of arrested persons and the
personalty that they intend to bring with them into the county jail are a
customary and typical procedure in Montgomery County. Furthermore, for
obvious reasons of safety, the police are not obligated to return an item of
personalty to a lawfully arrested individual sitting in a police cruiser without
having first inspected it. A wallet can hide any number of items that could
be hazardous to police, such as a small pocket-knife or razor blade.
Finally, even had the search of the wallet been conducted at the county jail
by jail employees, the search inevitably would have revealed that the wallet
contained contraband. Thus, the search was a valid administrative
inventory search pursuant to Illinois v. Lafayette (1983), 462 U.S. 640, 103
S.Ct. 2605.
Combs at ¶ 6. -13-
{¶ 24} In this case, the record indicates that Frazee requested to bring his coat
with him to the Montgomery County Jail. Because it is customary and typical in
Montgomery County for the arrestee and their personal effects to be subject to an
inventory search, the heroin inside Frazee’s coat would have been inevitably discovered
when he was booked into jail. In following Combs, we find the inevitable discovery
doctrine applies even without specific testimony from Eversole discussing the inventory
Conclusion
{¶ 25} The trial court erred in suppressing the heroin found inside Frazee’s coat
pocket, as the heroin was lawfully discovered through a search incident to arrest, and
also would have been inevitably discovered during an inventory search. Accordingly, the
State’s sole assignment of error is sustained and the judgment of the trial court is reversed
and remanded for further proceedings.
FROELICH, P.J., concurs in judgment.
DONOVAN, J., concurring: {¶ 26} In my view, the majority embraces too expansive a view of the search
incident to arrest exception by utilizing broad language which is unnecessary. I would
not rely upon the Adams case, as the suspect therein was initially only in the immediate
area of the jacket, it was not on his person when the police encountered him. I also
conclude it is wrong to rely upon an inevitable discovery exception which is wholly
undeveloped on this record. -14-
{¶ 27} Under Robinson, officers may presume that a particular arrestee – even one
arrested for a nonviolent traffic offense – is armed. 414 U.S. at 235, 94 S.Ct. 467, 38
L.Ed.2d 427. But officers may not presume that this arrestee can access items safely
reduced to law enforcement’s exclusive possession and control – that is an entirely
different presumption, which the Supreme Court has never approved. See United States
v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (“Once law
enforcement officers have reduced luggage or other personal property not immediately
associated with the person of the arrestee to their exclusive control, and there is no longer
any danger that the arrestee might gain access to the property to seize a weapon or
destroy evidence, a search of that property is no longer an incident of the arrest.”),
abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114
L.Ed.2d 619 (1991).
{¶ 28} The Supreme Court has always described Robinson searches – that is,
searches of the person incident to arrest – in extremely narrow terms. Robinson clearly
permits a search “of an arrestee’s pockets,” but leaves open the question of what other
“physical items” might be searchable under this exception.
{¶ 29} However, the coat searched in this case is a personal item which was on
Frazee’s person immediately prior to his physical arrest. It lay on the hood of the cruiser
which did not alter its status as a personal effect. Since it was taken into custody as part
of Frazee’s person, his ability to reach the coat while he was in the cruiser is irrelevant.
Furthermore, Gant does not restrict the lawful search of Frazee’s coat merely because
the coat was not within his immediate reach.
{¶ 30} Lastly, it would appear the trial court went astray in adopting flawed legal -15-
analysis as proposed by Frazee in his post-hearing brief. The conclusion that “Deputy
Eversole acquiesced to the search incident to arrest exception” is without legal and factual
support in this record.
{¶ 31} Finally, for reasons distinguishable from those upon which the majority
relies, I would reverse.
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Copies mailed to:
Mathias H. Heck, Jr. Dylan Smearcheck James M. Calhoun, II Hon. Dennis J. Langer