[Cite as State v. Hale, 2023-Ohio-1057.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2022 CA 00043 KATRINA HALE
Defendant-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 22-CR-00157
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 30, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JENNY WELLS CHRIS BRIGDON Licking County Prosecutor 8138 Somerset Road Thornville, Ohio 43076 ROBERT N. ABDALLA Assistant Prosecuting Attorney 20 S. Second Street Newark, Ohio 43055 Licking County, Case No. 2022 CA 00043 2
Hoffman, J. {¶1} Plaintiff-appellant the state of Ohio appeals the judgment entered by the
Licking County Common Pleas Court granting Defendant-appellee Katrina Hale’s
(hereinafter “Hale”) motion to suppress evidence seized on August 30, 2021.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 30, 2021, Detective Benjamin Martens of the Licking County
Sherriff’s Office was in uniform, driving a marked cruiser. Detective Martens was working
with officers of the Central Ohio Drug Enforcement Task Force, including Detectives
Conley and Boerrstler.
{¶3} Detective Conley saw Terrance Cunningham driving a gold van. The van
drove into the parking lot of an apartment complex, remained a short time, then left the
parking lot. Cunningham was known to the detectives of the task force as a drug
trafficker. Detective Boerstler relayed the van’s license plate number and the identity of
the driver to Detective Martens, who ran the information through LEADS and learned
Cunningham had a suspended license. Detective Martens radioed to inquire whether he
should initiate a traffic stop, and Detective Conley responded affirmatively.
{¶4} Detective Martens located the van in the parking lot of a Circle K store.
Detective Martens pulled his cruiser behind the van with his emergency lights activated.
A Newark Police Department officer also responded to the Circle K parking lot. The
encounter was recorded on Detective Martens’s cruiser camera and his body camera.
{¶5} As Detective Martens turned into the lot, Cunningham was standing outside
the van. Although Detective Martens did not notice Hale at the time he first pulled into
the lot, his camera captured Hale exiting the store, returning to the passenger side of the Licking County, Case No. 2022 CA 00043 3
vehicle, and reaching inside the open window before walking back toward the store. The
van was parked directly in front of the entrance to the store.
{¶6} Detective Martens asked Cunningham whether he was supposed to be
driving. Cunningham said Hale was driving, and pointed toward Hale as she was entering
the store. Detective Martens approached Hale and asked her for identification. Hale
indicated she felt sick, and wanted to go into the store to use the restroom. Detective
Martens told Hale she was not free to leave. Hale was carrying a black zipper purse and
a grey zipper purse/pouch. She produced identification, and Detective Martens told Hale
to go have a seat on the bumper of his police cruiser.
{¶7} Hale again asked to go inside the store because she felt sick. Detective
Martens told Hale to put her bags on the hood of the police cruiser. Detective Martens
informed Hale that Cunningham did not have a valid driver’s license. She admitted she
knew Cunningham did not have a license, yet she asked him to drive to the store.
{¶8} Returning to Cunningham, Detective Martens informed Cunningham he
knew Cunningham was driving, and could charge Hale with negligent entrustment
because she admitted she knew Cunningham did not have a valid license. Detective
Martens conducted a pat down search of Cunningham, finding a baggie in Cunningham’s
pocket. Cunningham told the officer it was cocaine. Detective Martens asked
Cunningham if there was a weapon in the van. Cunningham explained there was a
firearm which belonged to Hale in the van. After allowing Cunningham to finish smoking
a cigarette, Detective Martens placed Cunningham in the cruiser.
{¶9} Detective Martens returned to Hale, moving the bags a bit further out of her
reach. Detective Martens asked Hale if there was a firearm in the van. Hale responded Licking County, Case No. 2022 CA 00043 4
there was a registered, unloaded handgun in the van. Detective Martens asked Hale if
there were drugs in the van. Hale responded she had roach clips in her cigarette package,
and admitted she did not have a medical marijuana card. Detective Martens unzipped
the grey bag Hale had placed on the cruiser, which he believed could contain a small
firearm or marijuana. Supp. Tr. 20-21. He found a substance in the bag which he
suspected was methamphetamine. A search of the van revealed an unloaded firearm in
a drawer underneath the passenger seat, two loaded magazines in a bag on the floor of
the passenger side, a digital scale, and a box with drug residue.
{¶10} Hale was indicted by the Licking County Grand Jury with aggravated
possession of methamphetamine (R.C. 2925.11(A)(C)(1)(c)), aggravated trafficking in
methamphetamine (R.C. 2925.03(A)(2)(C)(1)(d)), and improper handling of a firearm in a
motor vehicle (R.C. 2923.16(B)). A superseding indictment was later filed, adding an
additional charge of possession of methamphetamine (R.C. 2925.11(A)(C)(1)(a)).
{¶11} Hale filed a motion to suppress. Following a suppression hearing, the trial
court granted the motion, finding Hale was no longer a passenger of the vehicle, and
officers had no additional reasonable suspicion Hale was involved in criminal activity;
therefore, the seizure of Hale violated her Fourth Amendment rights.
{¶12} It is from the June 14, 2022 judgment of the trial court the State prosecutes
its appeal, assigning as error:
THE TRIAL COURT ERRED BY GRANTING APPELLEE’S MOTION
TO SUPPRESS EVIDENCE. Licking County, Case No. 2022 CA 00043 5
{¶13} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review. Ornelas, supra.
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶14} An officer may request identification from the passengers of a vehicle
lawfully stopped for a traffic violation without running afoul of the Fourth Amendment.
State v. Roseberry, 5th Dist. Licking No. 2009-CA-78, 2010-Ohio-1112, ¶ 21, citing State
v. Jackson (Apr. 25, 2006), Pickaway App. No. 05CA12 (April 25, 2006), citing State v.
Brown, Montgomery App. No. 20336, 2004–Ohio–4058, at ¶ 14. Interrogation relating to Licking County, Case No. 2022 CA 00043 6
one's identity or a request for identification by the police does not, by itself, constitute a
Fourth Amendment seizure. See, I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758,
1762, 80 L.Ed.2d 247 (1984). “The temporary seizure of driver and passengers ordinarily
continues, and remains reasonable, for the duration of the stop.” Roseberry at ¶23, citing
Brendlin v. California, 551 U.S.249, 258, 127 S.Ct. 2400, 168 L.Ed.2d 13.
{¶15} The trial court found because Hale had exited the vehicle, she was no
longer a passenger of the vehicle, and the officer could not lawfully detain her as a
passenger of a lawfully stopped vehicle. We disagree. We find Hale had not “left” the
vehicle such as to no longer be considered a passenger of the vehicle. The vehicle was
parked directly in front of the store, and at all times pertinent to the initial encounter with
the police, Hale was at or very near the vehicle. As the officer was pulling into the parking
lot, his camera recorded Hale exiting the store, but she returned to the vehicle and was
seen reaching into the passenger side before turning to walk toward the store. Further,
upon initial contact, Cunningham indicates Hale was driving the vehicle. Upon
questioning, Hale admitted to being a passenger in the vehicle. We find under these
circumstances Hale retained her status as a passenger of the vehicle throughout the
encounter with law enforcement.
{¶16} As a passenger of the vehicle, Hale could be detained for the duration of
the stop. The duration of a traffic stop may last no longer than is necessary to resolve
the issue which led to the stop and issue a traffic citation, absent specific and articulable
facts demonstrating a reasonable suspicion of criminal activity other than the traffic
violation to justify continued detention. State v. Robinette, 80 Ohio St.3d 234, 1997-Ohio-
343, 685 N.E.2d 762. Licking County, Case No. 2022 CA 00043 7
{¶17} We find the detention of Hale to be permissible based on the developing
facts of the encounter, which over time provided a reasonable suspicion of criminal
activity. Even though she was not cited for wrongful entrustment of the vehicle to
Cunningham, we find Hale could be detained while officers checked the operator’s
licenses of both occupants and made a determination as to whether to charge Hale with
wrongful entrustment.
{¶18} While patting down Cunningham for officer safety, officers found a baggie
in his pocket. Cunningham stated the baggie contained cocaine. When asked if he had
a firearm, Cunningham explained there was a firearm in the vehicle which belonged to
Hale. Although a firearm may be transported in a vehicle in a lawful manner, this new
information gave police further cause to detain Hale to determine if the weapon was in
fact being transported in a lawful manner.
{¶19} After learning of the firearm from Cunningham, Detective Martens asked
Hale if there was a weapon in the car, and she explained where the weapon was located
in the vehicle. The detective then asked Hale if there were drugs in the car. She
responded she had roach clips for marijuana in her cigarette package, and she did not
have a medical marijuana card. Based on Hale’s admission, we find the detective had
probable cause to further detain Hale for the crime of possession of drug paraphernalia
in violation of R.C. 2925.14.
{¶20} Once a law enforcement officer has probable cause to believe a vehicle
contains contraband, the officer may search a validly stopped motor vehicle based upon
the well-established automobile exception to the warrant requirement. State v. Moore, 90
Ohio St.3d 47, 51, 734 N.E.2d 804, 808 (2000), citing Maryland v. Dyson, 527 U.S. 465, Licking County, Case No. 2022 CA 00043 8
466, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442, 445 (`1999). Where police officers have
probable cause to search an entire vehicle, they may conduct a warrantless search of
every part of the vehicle and its contents, including all movable containers and packages,
which may logically conceal the object of the search. State v. Welch, 18 Ohio St.3d 88,
480 N.E.2d 384 (1985), at syllabus.
{¶21} Detective Martens testified he began his probable cause search of the
vehicle with the bags which had recently been removed from the vehicle, and testified the
smaller bag he first opened could have contained a small firearm or marijuana. We find
the search of the bags was permissible based on the automobile exception to the warrant
requirement. Accordingly, we find the trial court erred in granting Hale’s motion to
suppress. Licking County, Case No. 2022 CA 00043 9
{¶22} The assignment of error is sustained. The judgment of the Licking County
Common Pleas Court is reversed, and this case is remanded for further proceedings
according to law, consistent with this opinion.
By: Hoffman, J. Baldwin, J. concurs Gwin, P.J. dissents Licking County, Case No. 2022 CA 00043 10
Gwin, P.J., dissents
{¶23} For the reasons which follow, I respectfully dissent.
{¶24} “For a search or seizure to be reasonable under the Fourth Amendment, it
must be based upon probable cause and executed pursuant to a warrant. Katz v. United
States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585; State v. Brown
(1992), 63 Ohio St.3d 349, 350, 588 N.E.2d 113, 114. This requires a two-step analysis.
First, there must be probable cause. If probable cause exists, then a search warrant must
be obtained unless an exception to the warrant requirement applies. If the state fails to
satisfy either step, the evidence seized in the unreasonable search must be suppressed.
Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; AL Post 763 v. Ohio
Liquor Control Comm. (1998), 82 Ohio St.3d 108, 111, 694 N.E.2d 905, 908.” State v.
Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804(2000). A search conducted without a
warrant issued upon probable cause violates the Fourth Amendment, unless it comes
within one of the “few specifically established and well-delineated exceptions” to the
warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
The automobile exception to the warrant requirement does not apply
{¶25} The automobile exception recognizes that law enforcement officers may
conduct a warrantless search of a vehicle when the officers have probable cause to
believe the vehicle contains contraband or other evidence of illegal activity. Chambers v.
Maroney, 399 U.S. 42, 48-49 (1970). In Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct.
1297, 143 L.Ed.2d 408(1999), the United States Supreme Court held that police officers
with probable cause to conduct a warrantless search of an automobile for contraband
could search a purse left by a passenger on the back seat of the car. Sandra Houghton Licking County, Case No. 2022 CA 00043 11
was a passenger in a car that was stopped by police for speeding and displaying a faulty
brake light. The officer saw a hypodermic syringe in the driver’s shirt pocket. The driver
admitted that he used the syringe to “take drugs.” Based on the driver’s admission, the
officer searched the car for contraband. The search included Houghton’s purse, which
was on the back seat of the car. Houghton’s purse contained methamphetamines and
drug paraphernalia. The Houghton Court held that police officers with probable cause to
search a car may search a passenger’s belongings found in the car that could conceal
the object of the search. It was uncontested in the Houghton case that the police officers
had probable cause to believe there were illegal drugs in the car before searching the car
and the purse that was left inside the car. 526 U.S. at 300, 119 S.Ct. 1297, 143 L.Ed.2d
408.
{¶26} Justice Breyer stated in his concurring opinion in Houghton that it was
important that Houghton had left her purse in the back seat of the car, a “considerable
distance” away from her, and that she did not claim ownership of the purse until the officer
found her identification inside. Justice Breyer viewed a woman’s purse as a “special
container” that is a repository “of especially personal items that people generally like to
keep with them at all times.” If a woman’s purse is “attached to her person,” Justice Breyer
reasoned, it “might then amount to a kind of ‘outer clothing’ “that would “properly receive
increased protection.”
{¶27} In United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed.
210(1948), the Supreme Court held that simply being a passenger in a car is not enough
to justify a complete search of a person. This principle was reaffirmed in Houghton, 526
U.S. at 303, 119 S.Ct. 1297, 143 L.Ed.2d 408. Licking County, Case No. 2022 CA 00043 12
{¶28} The present case is distinguishable from Houghton. In the case at bar, the
purse was not inside the van; rather it was in the hands of Hale well before Detective
Martens developed any semblance of probable cause to search the van.
{¶29} Detective Martens never observed the van on the roadway. Rather,
Detective Martens was told by Detective Conley to make the traffic stop. Supp. T. at 25-
26. Detective Martens set out, and as he was passing the convenience store, noticed the
van parked in the parking lot of the convenience store. Detective Martens turned his
cruiser around and pulled into the Circle K parking lot with his emergency lights on. Supp.
T. at 11-12. The van was parked, the engine turned off and no one was inside the van.
Detective Martens pulled into the parking lot and parked the police cruiser. Body Cam.
video at 2:06. He exited the police vehicle and approached Cunningham who is standing
in the parking lot outside the van. Body Cam. video at 2:08. Hale is first seen opening
the door and walking out of the convenience store. Body Cam. video at 2:13. Her hands
and lower body cannot be seen. No testimony was presented that Detective Martens
observed Hale remove the purse or purses from the van; rather, Detective Martens
testified that he could not see what Hale was doing. Supp. T. at 12. Hale is seen walking
back toward the doors of the convenience store, purse in hand, when Detective Martens
summonsed her. Supp. T. at 14; Body Cam. video at 2:22.
{¶30} Because both Cunningham and Hale were outside the vehicle when
Detective Martens first arrived in the parking lot, a protective search of the van for officer
safety was not warranted. Further, as Detective Martens conceded, the stop was based
upon the fact that Cunningham did not have a valid driver’s license not for suspected drug
activity. Licking County, Case No. 2022 CA 00043 13
{¶31} The evidence relayed to Detective Martens did not include a name, or
whether the passenger of the van was male or female. It did not include any information
that the passenger had a criminal record, had been involved in drug trafficking in the past,
or was suspected of drug trafficking in the present. Nor did the information supplied to
Detective Martens indicate that a drug sale or purchase by either Cunningham or Hale
had been witnessed by any law enforcement officer. None of the law enforcement officers
expressed any concern, or interest, in the passenger of the van prior to the stop. Other
than the driving without a valid driver’s license, there was no criminal activity observed by
any law enforcement officer.
{¶32} Hale provided identification when asked by Detective Martens. No
evidence was presented that Hale had any outstanding warrants or issues with her
driver’s license. Nothing in the record suggests that Hale had any history of drug activity
that would lead to a reasonable articulable suspicion that she was engaged in illegal
activity. Detective Martens did not testify during the suppression hearing that, prior to
approaching her outside of the van in the parking lot, he observed Hale engage in any
suspicious behavior.
{¶33} “Reasonable, articulable suspicion” requires something more than an
"inchoate and unparticularized suspicion or 'hunch.'” Terry v. Ohio, 392 U.S. 1, 27, 88
S.Ct. 1868, 20 L.Ed.2d 889(1968). There was no more than an “unparticularized
suspicion,” or “hunch” demonstrated by the evidence introduced during the suppression
hearing. Therefore, a search of the van related to finding evidence of either driving without
a valid driver’s license or wrongful entrustment of the vehicle was not warranted because Licking County, Case No. 2022 CA 00043 14
one could not reasonably expect to find evidence related to those offenses inside the van
or inside the purses.
{¶34} In short, Detective Martens lacked a reasonable suspicion or probable
cause to search either the van or the purses based upon his initial encounter with
Cunningham and Hale. By the time Detective Martens found the cocaine in
Cunningham’s pocket, Hale had been outside the van clutching her purses for quite some
time. The majority cites no authority for expanding the automobile exception to include a
search of a purse being held by an individual who is outside the vehicle at the time the
police first initiate a stop of the vehicle for a traffic offense and before the police develop
probable cause to search the vehicle.
{¶35} Once a passenger has left the vehicle, the officer must possess specific and
articulable facts to believe that a passenger is armed and dangerous, or is engaged in
criminal activity, to justify any further intrusions. See, e.g., State v. Taylor, 138 Ohio
App.3d 139, 145, 740 N.E.2d 704 (2nd Dist. 2000); State v. Isbele, 144 Ohio App.3d 780,
761 N.E.2d 697 (12th Dist. 2001) (where officers lacked reasonable suspicion the
passenger was engaged in criminal activity, police had no reason to detain her after
arresting the driver of the vehicle).
Terry search for officer safety does not apply
{¶36} In Terry v. Ohio, 392 U.S. 1 (1968) the Supreme Court held that if a police
officer believes that an individual has a weapon which poses a danger to the officer, the
officer may stop that individual to search the individual for a weapon.
{¶37} In the case at bar, Detective Martens told Hale to go have a seat on the
bumper of his police cruiser. Body Cam video at 2:48. Martens informs Cunningham that Licking County, Case No. 2022 CA 00043 15
he is not under arrest. Body Cam. video at 4:37. Cunningham is not handcuffed.
Cunningham is permitted to smoke a cigarette before being place into the cruiser.
{¶38} While talking to Detective Martens, and with his permission, Hale opens the
smaller purse, takes out a cigarette lighter and throws it to Cunningham. 1 Body Cam
video at 3:14. Detective Martens then turned his attention to Cunningham, while Hale
remained alone within reaching distance of the purses. Body Cam video at 4:08.
Detective Martens does not return to Hale for over five and one-half minutes. Detective
Martens then moves the two purses further away from Hale’s reach. Body Cam. video at
9:51.
{¶39} The record contains no evidence that Detective Martens believed that Hale
was armed, or otherwise dangerous to the officers. He did not conduct a pat down,
handcuff her or place her in one of the two police cruisers. She remained near the purses
alone while Detective Martens interacted with Cunningham. The evidence is clear that
the officers believed that Hale posed no threat of harm to them.
{¶40} Detective Martens testimony that the smaller purse “could have” contained
a small gun is rather disingenuous in light of his actions during the encounter. A protective
search requires something more than an "inchoate and unparticularized suspicion or
'hunch.'” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). The Court
of Appeals for Montgomery County has observed,
Intertwined with the reasonableness requirement is the other
requirement of Terry that the officer's suspicion must be articulable. That
1This is the very same purse that Detective Martens would later testify “could have” concealed a small gun. Licking County, Case No. 2022 CA 00043 16
connotes more than a mere subjective pronouncement. It requires
demonstrable facts that, together with any rational inferences that may be
drawn from them, reasonably support a conclusion that the suspect is
armed and dangerous. The conclusion is necessary to the independent
judicial review that a Fourth Amendment challenge to a pat-down search
involves. In that connection, Terry states:
“‘Nothing we say today is to be taken as indicating approval of police
conduct outside the legitimate investigative sphere. Under our decision,
courts still retain their traditional responsibility to guard against police
conduct which is overbearing or harassing, or which trenches upon personal
security without the objective evidentiary justification which the Constitution
requires. When such conduct is identified, it must be condemned by the
judiciary and its fruits must be excluded from evidence in criminal trials.’
[Terry] at 15, 88 S.Ct. 1868, 20 L.Ed.2d 889.”
State v. Phillips, 155 Ohio App.3d 149, 799 N.E.2d 653, 2003–Ohio–5742 at ¶ 23–24.
Cunningham’s past criminal activity
{¶41} Knowledge that Cunningham had a past record for drug activity cannot
provide a reasonable, articulable suspicion that Hale is also involved in criminal activity.
“[K]knowledge of a person's prior criminal involvement (to say nothing of a mere arrest)
is alone insufficient to give rise to the requisite ‘reasonable suspicion’ to justify a shift in
investigatory intrusion from the traffic stop to a firearms or drugs investigation.” State v.
Brown, 5th Dist. Tuscarawas No. 2009AP050024, 2010-Ohio-1110, ¶ 27 citing United Licking County, Case No. 2022 CA 00043 17
States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994) and State v. Whitman, 5th Dist.
Holmes No. 09–CA–03, 2009–Ohio–5647 at ¶ 15. As the Court explained in Sandoval:
“If the law were otherwise, any person with any sort of criminal
record-or even worse, a person with arrests but no convictions-could be
subjected to a Terry-type investigative stop by a law enforcement officer at
any time without the need for any other justification at all. Any such rule
would clearly run counter to the requirement of a reasonable suspicion, and
of the need that such stops be justified in light of a balancing of the
competing interests at stake.” Id. at 543. Accord, Joshua v. Dewitt (6th Cir.
2003), 341 F.3d 430, 446.
29 F.3d at 543. Accordingly, a person's reputation or past record does not, standing alone,
provide an officer with a reasonable suspicion to support a Terry-type investigative stop
or search of that person or of a companion of that individual. State v. Whitman, supra.
The Tenth Circuit noted in United States v. Sandoval that it had found “no case elsewhere
that even suggest[s] the contrary.” 29 F.3d at 542.
Guilt by association - Cunningham’s possession of cocaine
{¶42} The cocaine was not in the care, custody or control of Hale. The cocaine
was found in Cunningham’s pocket, not inside the van. Cunningham admitted the drugs
belonged to him. Body Cam. video at 4:29. The officer had no information implicating
Hale in any criminal offense. No evidence was presented that the officer had any
information pointing to Hale’s possession of drugs. No information was provided to
Detective Martens concerning the relationship between Cunningham and Hale. The Licking County, Case No. 2022 CA 00043 18
information that the officer had at the time was exclusive to, and singled out, Cunningham
as not having a valid driver’s license and suggesting a past record for drug activity.
{¶43} The notion that the discovery of a minimal number of drugs in the
possession of one occupant of a vehicle creates a reasonable basis to suspect criminal
activity on the part of another has been rejected by the courts. See, State v. Taylor, 138
Ohio App.3d 139, 147, 740 N.E.2d 704 (2nd Dist. 2000). “[A] person’s mere propinquity
to others independently suspected of criminal activity does not, without more, give rise to
probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62–63, [ 88 S.Ct.
1889, 20 L.Ed.2d 917] (1968). Where the standard is probable cause, a search or seizure
of a person must be supported by probable cause particularized with respect to that
person. This requirement cannot be undercut or avoided by simply pointing to the fact
that coincidentally there exists probable cause to search or seize another or to search the
premises where the person may happen to be.” Ybarra v. Illinois, 444 U.S., 85, 91, 100
S.Ct. 338, 62 L.Ed.2d 238 (1979). Accord, Maryland v. Pringle, 540 U.S. 366, 372-373,
124 S.Ct. 795, 157 L.Ed.2d 769 (2003).
{¶44} The fact that Hale and Cunningham may have previously been at a location
frequented by drug users, standing alone, is not a basis for concluding that Hale herself
was engaged in criminal conduct. Brown v. Texas, 443 U.S. 47, 52, 61 L.Ed.2d 357, 99
S.Ct. 2637, 2641 (1979). See, also, State v. Fahy, 49 Ohio App.3d 160, 161, 551 N.E.2d
1311, 1313 (3rd Dist. 1988) (finding defendant’s “mere association and conversation with
known drug users” insufficient facts upon which to infer current drug-related activity);
State v. Bogart, 11th Dist., Lake No. 93–L–088, 1994 WL 45266 (Feb. 11, 1994) (noting
that “courts of this state have consistently held that a person cannot be detained solely Licking County, Case No. 2022 CA 00043 19
upon the ground that the person [or presumably, his companion] has a reputation for
engaging in criminal behavior”). The actual stop in the case at bar took place in broad
daylight, in a public place, with members of the public also present in the parking lot
throughout the encounter.
{¶45} Because the officer had no reasonable, articulable suspicion that Hale knew
Cunningham possessed cocaine or that she was an accessory to his possession of the
cocaine, the fact that Cunningham had drugs in his possession did not authorize the
police to search Hale’s purse.
Non-jailable offenses -Wrongful entrustment and Possession of marijuana
{¶46} Pursuant to R.C. 4511.203, Wrongful entrustment of a motor vehicle is an
unclassified misdemeanor. The statute further provides,
When the offense is an unclassified misdemeanor, the offender shall
be sentenced pursuant to sections 2929.21 to 2929.28 of the Revised Code,
except that the offender shall not be sentenced to a jail term; the offender
shall not be sentenced to a community residential sanction pursuant to
section 2929.26 of the Revised Code; notwithstanding division (A)(2)(a) of
section 2929.28 of the Revised Code, the offender may be fined up to one
thousand dollars; and, notwithstanding division (A)(3) of section 2929.27 of
the Revised Code, the offender may be ordered pursuant to division (C) of
that section to serve a term of community service of up to five hundred
hours.
Emphasis added. Because an offender cannot be sentenced to jail, it would appear that the officer is limited to issuing a summons in lieu of arrest. See, Crim. R. 4(A)(3). Licking County, Case No. 2022 CA 00043 20
{¶47} Nor can Hale’s admission that she had “marijuana roaches” in the van
provide justification for the search of her purse. Possession of less than 200 grams of
marijuana is a minor misdemeanor offense. R.C. 2925.11(C)(3)(a). Accordingly, it would
not provide a basis for the officer to conduct a warrantless custodial arrest and search of
Hale’s person or her purse.
{¶48} In State v. Brown, 99 Ohio St.3d 323, 2003–Ohio–3931, the officers
arrested the defendant for jaywalking, a minor misdemeanor offense. Citing a decision of
the Montana Supreme Court, the Supreme Court of Ohio then held that police officers
may not reasonably arrest and detain individuals for minor misdemeanor offenses when
none of the circumstances in R.C. 2935.26 apply. The Court thus held that the defendant's
arrest violated Section 14, Article I of the Ohio Constitution and the evidence discovered
as a result of the search must be suppressed. Id. at ¶ 23–25, citing State v. Bauer, 307
Mont. 105, 36 P.3d 892 (2001).
{¶49} Hale was not arrested or cited by the officer, nor was she indicted by the
grand jury, for possession of marijuana or possession of drug paraphernalia 2. Hale was
not under arrest when she informed the officer about the handgun, the roaches and the
roach clip and before Detective Martens searched her purse. Body Cam. video at 10:35.
The officer read Hale her Miranda rights only after he discovered the methamphetamine
through his search of the purse. Id. Detective Martens told Hale she was not under arrest
2 As possession of marijuana in an amount less than 200 grams is an offense for which a jail sentence is prohibited and which is not considered a criminal offense, imposing a jail sentence and criminal record for possession of a metal clip used to hold the “roach,” is an anomaly that the legislature may wish to correct. In other words, an individual can have the actual drug, marijuana, in an amount less than 200 grams and not be subjected to a jail sentence or criminal record; yet another individual who possesses no marijuana, but only a “roach clip” can be sentenced to jail and have a criminal record. This could explain why Detective Martens did not charge Hale, and the grand jury did not indict Hale, for the marijuana and roach clip in spite of the fact the state obtained a superseding indictment to add a count of possession of methamphetamine. Licking County, Case No. 2022 CA 00043 21
even after he searched her purse. Id. Accordingly, Detective Martens could not have
based his decision to search the purse upon Hale’s admission to the marijuana and the
roach clip. Thus, Detective Martens could not justify the search of the purse as incident
to a lawful custodial arrest of Hale.
Hale’s lawfully owned handgun
{¶50} Transporting a handgun in a motor vehicle is not in and of itself a criminal
offense in the state of Ohio. However, there is a law governing how one may properly
transport a handgun in a motor vehicle. R.C. 2923.16 Improperly Handling Firearms in a
Motor Vehicle provides, in part,
(A) No person shall knowingly discharge a firearm while in or on a
motor vehicle.
(B) No person shall knowingly transport or have a loaded firearm in
a motor vehicle in such a manner that the firearm is accessible to the
operator or any passenger without leaving the vehicle.
(C) No person shall knowingly transport or have a firearm in a motor
vehicle, unless the person may lawfully possess that firearm under
applicable law of this state or the United States, the firearm is unloaded,
and the firearm is carried in one of the following ways:
(1) In a closed package, box, or case;
(2) In a compartment that can be reached only by leaving the vehicle;
(3) In plain sight and secured in a rack or holder made for the
purpose; Licking County, Case No. 2022 CA 00043 22
(4) If the firearm is at least twenty-four inches in overall length as
measured from the muzzle to the part of the stock furthest from the muzzle
and if the barrel is at least eighteen inches in length, either in plain sight
with the action open or the weapon stripped, or, if the firearm is of a type on
which the action will not stay open or which cannot easily be stripped, in
plain sight.
***
(5)(a) “Unloaded” means, with respect to a firearm other than a
firearm described in division (K)(6) of this section, that no ammunition is in
the firearm in question, no magazine or speed loader containing ammunition
is inserted into the firearm in question, and one of the following applies:
(i) There is no ammunition in a magazine or speed loader that is in
the vehicle in question and that may be used with the firearm in question.
(ii) Any magazine or speed loader that contains ammunition and that
may be used with the firearm in question is stored in a compartment within
the vehicle in question that cannot be accessed without leaving the vehicle
or is stored in a container that provides complete and separate enclosure.
(b) For the purposes of division (K)(5)(a)(ii) of this section, a
“container that provides complete and separate enclosure” includes, but is
not limited to, any of the following:
(i) A package, box, or case with multiple compartments, as long as
the loaded magazine or speed loader and the firearm in question either are
in separate compartments within the package, box, or case, or, if they are Licking County, Case No. 2022 CA 00043 23
in the same compartment, the magazine or speed loader is contained within
a separate enclosure in that compartment that does not contain the firearm
and that closes using a snap, button, buckle, zipper, hook and loop closing
mechanism, or other fastener that must be opened to access the contents
or the firearm is contained within a separate enclosure of that nature in that
compartment that does not contain the magazine or speed loader;
(ii) A pocket or other enclosure on the person of the person in
question that closes using a snap, button, buckle, zipper, hook and loop
closing mechanism, or other fastener that must be opened to access the
contents.
Emphasis added3.
{¶51} In the case at bar, Hale informed Detective Martens that she had a lawfully
owned, unloaded, handgun in the lockable sliding drawer beneath the passenger seat.
Detective Martens had moved both cases further out of Hale’s reach prior to being
informed that she had a lawfully owned, unloaded handgun in the vehicle. Until Detective
Martens located a magazine or clip to the handgun in a separate bag on the floor by the
passenger seat of the van, he did not have probable cause to arrest Hale for Improper
Handling of a Firearm in a Motor Vehicle. The search of the purses occurred before
Detective Martens determined that Hale may be improperly transporting the firearm in the
motor vehicle. Therefore, because Hale could not reach the bags, and because Detective
Martens did not have probable cause to arrest Hale, a search of the handbags cannot be
justified either as a search incident to arrest or a protective search.
3 R.C. 2923.16 has been amended effective June 12, 2022 and again effective April 3, 2023, both of which occurred after Hale’s arrest. Licking County, Case No. 2022 CA 00043 24
Inventory search
{¶52} The search of the purses was not a valid inventory search under South
Dakota v. Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), because
the van did not contain Hale’s purse and, in addition, the van was not impounded.
Detective Martens told Hale that he did not plan on impounding the van because it was
not on a public roadway. Body Cam. video at 12:53.
Conclusion
{¶53} While it may be tempting to find that, because drugs were found in Hale’s
purse, the ends justify the means, to do so lessens the protections afforded to, not just
criminals, but also every citizen, from unwarranted interference by the police.
{¶54} In the absence of probable cause of criminal activity on Hale’s part, and
because the search of the purse does not fall within “one of the few specifically
established and well-delineated exceptions” to the warrant requirement, I agree with the
trial court’s conclusion that the police impermissibly searched Hale’s purse without first
obtaining a warrant.
{¶55} I would therefore affirm the decision of the trial court.