[Cite as State v. Raslovsky, 2020-Ohio-515.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-55 : v. : Trial Court Case No. 2018-CR-720 : STEPHANIE RASLOVSKY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 14th day of February, 2020.
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
SARA M. BARRY, Atty. Reg. No. 0090909, 1139 Holly Avenue, Dayton, Ohio 45410 Attorney for Defendant-Appellant
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HALL, J. -2-
{¶ 1} Stephanie Raslovsky appeals from her conviction for possession of cocaine.
Finding no error, we affirm.
I. Facts and Procedural History
{¶ 2} One evening in June 2018, a group of Springfield police officers were working
as part of a task force formed to look for suspected drug activity. Two officers were
watching a particular city street in an unmarked vehicle, investigating complaints of drug
activity. Around 9:15 p.m., a vehicle stopped on the street they were watching and left a
few minutes later. The officers could not tell if the vehicle had stopped at one of the
suspected houses. They followed the vehicle for several blocks and eventually saw it fail
to signal a turn. The officers radioed Officer Derrick Nichols, a drug canine officer, who
proceeded to stop the vehicle for the turn-signal violation.
{¶ 3} Officer Nichols approached the vehicle on foot and saw a driver and three
passengers. Nichols began speaking with the driver. Other officers soon arrived and
spoke with the passengers. Officer Nichols had the driver step out of the vehicle, which
she did, taking her purse. The driver consented to a search of her purse, and Nichols
found no contraband inside. The driver also consented to a search of the vehicle.
{¶ 4} The officers decided to deploy the drug dog and asked the occupants to get
out of the vehicle. What happened next is not entirely clear from the trial court’s decision,
perhaps because neither party focused on whether the location or circumstances of
Raslovsky’s purse mattered. The decision indicates “the defendant exited with her purse,
but Officer Nichols either placed it back into the vehicle or instructed her to do so.” But
the specific testimony and the audio/video recording (State’s Exhibit 2) of the stop
provided a different perspective. The defense called Raslovsky as a witness but did not -3-
inquire about the purse, its location, or what Raslovsky did with it. On cross-examination,
the State asked whether she remembered “where the purse was in the driver passenger
(sic) seat?” She answered “[w]hen I got out of the vehicle and I picked my purse up to get
out and they took it from me and put it back in, I’m not sure where they placed it at.” (T.
52) But this description is not entirely consistent with the audio-video evidence, which
showed that Officer Lish, not Nichols, had been standing outside the closed passenger
side door, apparently talking with Raslovsky, before the decision was made to empty the
vehicle for the dog deployment. The audio recording, which was only from Officer
Nichols’s microphone, did not pick up Officer Lish’s conversation on the passenger side
of the vehicle at this time. But Officer Lish clearly opened the passenger door for
Raslovsky to get out at about 9:32:57.1 Officer Lish apparently told her to leave the purse,
because at the time she exited she did not have a purse with her, the officer was standing
back at door-length from the vehicle, he did not appear to take anything from her, and he
did not reach into the vehicle to place something back into the vehicle. He entered the
vehicle only after the doors were closed and the dog “hit” on the passenger side door.
The conclusions that Raslovsky did not exit with her purse and that the officer did not take
it from her and return it to the vehicle were confirmed by Raslovsky’s own statement to
Lish, after the beginning of the search: Lish asked “Stephanie,” who was outside the car,
about the purse at 9:35:22; she approached the car and, beginning at 9:35:27;10, she
said, “I tried to take my purse and you guys told me to leave it in.” Only thereafter can she
be heard stating that the police did not have permission to search the purse.
1 The video has 30 frames per second and the timer is divided as hour: minute: second; frame. The player allows frame by frame visualization. -4-
{¶ 5} Regardless, after the dog alerted to the odor of narcotics at the passenger
side door, officers searched the inside of the vehicle, including Raslovsky’s purse. In the
purse, officers found a plastic bag containing white rocks that were believed to be crack
cocaine. Upon questioning, Raslovsky admitted that it was crack.
{¶ 6} Raslovsky was arrested and later indicted on one count of possession of
cocaine, a fifth-degree felony. She moved to suppress the drugs found in her purse. A
suppression hearing was held at which the only witnesses were Officer Nichols, a police
dispatcher, and Raslovsky herself. Officer Lish did not testify. Afterwards, the trial court
overruled the motion to suppress, concluding that the stop, Raslovsky’s removal from the
vehicle, the dog sniff, the search of the vehicle, and the search of Raslovsky’s purse were
all lawful. Raslovsky pleaded no contest to the possession charge and was sentenced to
ten months in prison with optional post-release control of three years.
{¶ 7} Raslovsky appeals.
II. Analysis
{¶ 8} The sole assignment of error alleges that the trial court erred by denying
Raslovsky’s motion to suppress. Raslovsky argues that the driver’s consent to search the
vehicle did not give officers the right to search her purse. She also argues that the Fourth
Amendment’s automobile exception did not justify the search of her purse.
{¶ 9} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. An
appellate court accepts the trial court’s findings of fact if they are supported by competent,
credible evidence. Id. “Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether -5-
the facts satisfy the applicable legal standard.” Id.
A. Search based on consent to search the vehicle
{¶ 10} Raslovsky first argues that the driver’s consent to search the vehicle did not
extend to a search of her purse. Raslovsky is correct, and that is consistent with the trial
court’s conclusion: “The Court finds that Officer Nichols was not authorized to search the
defendant’s purse under the voluntary consent exception to the warrant requirement
because the driver’s consent to a search of the vehicle’s passenger compartment did not
extend to it.” Indeed, Raslovsky admits in her brief that this was the court’s conclusion:
“the trial court explicitly agreed that Officer Nichols was not authorized to search
Appellant’s purse under the voluntary consent exception to the warrant requirement.” The
state also agrees: “The State concurs that the search of the purse could not be justified
by the driver’s permission to search the vehicle.”
{¶ 11} Since all are in agreement that the driver’s consent did not extend to a
search of the passenger’s purse, we see little point in further discussing that issue.
B. Search based on automobile exception
{¶ 12} Raslovsky also argues that the automobile exception to the Fourth
Amendment’s warrant requirement did not give officers the right to search her purse.
{¶ 13} The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.”
But the automobile exception allows “a warrantless search of an automobile stopped by
police officers who had probable cause to believe the vehicle contained contraband.”
United States v. Ross, 456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), citing
Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). As to the scope -6-
of the automobile-exception search, “[i]f probable cause justifies the search of a lawfully
stopped vehicle, it justifies the search of every part of the vehicle and its contents that
may conceal the object of the search.” Id. at 825. The U.S. Supreme Court held in
Wyoming v. Houghton, 526 U.S. 295, 307, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), that
this includes “passengers’ belongings found in the car that are capable of concealing the
object of the search.”
{¶ 14} Here, the dog sniff around the vehicle’s exterior was lawful. See Illinois v.
Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (holding that a dog
sniff on the exterior of a vehicle does not constitute a search). The dog’s subsequent alert
to the vehicle triggered the automobile exception, giving the officers probable cause to
believe that the vehicle contained drugs and allowing the officers to search the vehicle’s
interior. See Florida v. Harris, 568 U.S. 237, 250, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013)
(holding that a dog’s alert to a vehicle constituted probable cause to search it for drugs).
The permissible search extends to “passengers’ belongings found in the car that are
capable of concealing the object of the search.” Houghton at 307. The discrete question
is whether this included Raslovsky’s purse.
{¶ 15} Raslovsky argues that when a purse is being worn or held, it is not merely
an object but is part of the owner’s person, making the expectation of privacy greater. As
such, she contends, the rules that apply to the search of a person apply to the purse; it
cannot be searched unless the owner is arrested or there is probable cause to believe
that the purse contains contraband.
{¶ 16} Justice Breyer appears to agree with this argument in his concurring opinion
in Houghton. There he said that “[p]urses are special containers. They are repositories of -7-
especially personal items that people generally like to keep with them at all times.”
Houghton, 526 U.S. at 308, 119 S.Ct. 1297, 143 L.Ed.2d 408 (Breyer, J., concurring). He
wrote that “it would matter if a woman’s purse, like a man’s billfold, were attached to her
person. It might then amount to a kind of ‘outer clothing,’ which under the Court’s cases
would properly receive increased protection.” (Citations omitted.) Id. But this was not an
issue in Houghton because the purse in that case was found separate from the owner,
having been left voluntarily in the backseat.
{¶ 17} The issue has come before courts in other jurisdictions. The Kansas
Supreme Court addressed the issue in State v. Boyd, 275 Kan. 271, 64 P.3d 419 (2003).
In Boyd, a police officer ordered the defendant out of the vehicle, and when she grabbed
her purse, the officer ordered her to leave the purse in the vehicle. The court, relying in
part on Justice Breyer’s Houghton concurrence, concluded that unless there is an arrest
or probable cause sufficient to support a search, a woman’s purse in her possession or
under her control constitutes part of her person and is not subject to search. The Kansas
court held that “where a passenger is told by a police officer to get out of a lawfully stopped
vehicle and in response to the officer’s order to leave her purse in the vehicle, puts the
purse down and exits the vehicle, a subsequent search of the purse as part of a search
of the vehicle violates the passenger’s Fourth Amendment right against unreasonable
search and seizure.” Id. at 283.
{¶ 18} The North Dakota Supreme Court has held similarly. That court, also
considering Houghton, said that “[a] purse, like a billfold, is such a personal item that it
logically carries for its owner a heightened expectation of privacy, much like the clothing
the person is wearing. We are, therefore, persuaded * * * that the Fourth Amendment is -8-
violated when an officer directs that a purse be left in the vehicle and then proceeds to
search the purse incident to the arrest of another passenger in the vehicle.” State v.
Tognotti, 2003 ND 99, 663 N.W.2d 642, ¶ 20. But the South Dakota Supreme Court has
disagreed. It has held that police may order a woman to leave her purse in a vehicle and
that officers have the same authority to search the purse as they would other containers
found in the vehicle. State v. Steele, 2000 SD 78, 613 N.W.2d 825, ¶ 19.
{¶ 19} The issue came before the Ohio Supreme Court in State v. Mercier, 117
Ohio St.3d 1253, 2008-Ohio-1429, 885 N.E.2d 942. In that case, the defendant was a
passenger in the stopped vehicle, holding her purse on her lap. A police officer ordered
her out and told her to leave the purse in the vehicle. An officer later searched the purse
under the automobile exception. The appellate court had found that the search did not
violate the Fourth Amendment. In a one-sentence opinion, the Supreme Court affirmed
the court of appeals judgment, by a five-to-two vote, without elaboration except to say the
holding was “affirmed on the authority of Wyoming v. Houghton.” Justice Lanzinger wrote
a dissent joined by Justice Pfeifer. She urged that the search of the purse constituted an
impermissible search of the defendant’s person. In support, she cited Justice Breyer’s
Houghton concurrence, Boyd, and other cases to conclude: “I would hold that unless
probable cause exists for an arrest of the person, law enforcement officers may not
instruct an innocent passenger to leave a purse behind in a vehicle so that it may be
searched.” Id. at ¶ 12 (Lanzinger, J., dissenting).
{¶ 20} From the appellate court’s decision in Mercier, we learn that Mercier had
argued what Justice Lanzinger would have held: that because the purse was on her lap
when the car was stopped, it was attached to her person, so it could not have been -9-
searched without particularized probable cause to search her person. The defendant
further argued that the officer “could not have created a right to search her purse by
ordering her to leave it in the car,” citing Boyd and other cases. State v. Mercier, 1st Dist.
Hamilton No. C-060490, 2007-Ohio-2017, ¶ 16. The appellate court considered Justice
Breyer’s Houghton concurrence but ultimately held that Houghton authorized the search.
“In Houghton,” said the court, “the Court pointed out that passengers have a reduced
expectation of privacy in regard to personal property transported in an automobile. The
Houghton Court emphasized that the location of the property in the automobile is the
important factor and not the ownership of the property. We find no reason to exempt
Mercier’s purse from this rule.” Id. at ¶ 18.
{¶ 21} We addressed this issue too, in State v. Caulfield, 2013-Ohio-3029, 995
N.E.2d 941 (2d Dist.). There, the defendant was a front-seat passenger in a vehicle
stopped for a minor traffic violation. The officer discovered that the driver was under
suspension, that he had a prior drug suspension, and that a warrant had been issued for
his arrest. The officer arrested the driver, and the driver consented to a search of the
vehicle. An officer asked the defendant to exit the vehicle. She carried her purse with her
as she got out, but the officer ordered her to leave it in the vehicle, and the purse was
searched, along with the interior of the vehicle. We held that the search and seizure of
the purse was unlawful because it was not justified based on the driver’s consent to
search the vehicle, id. at ¶ 25, and because the search-incident-to-arrest of the driver
exception to the warrant requirement did not apply to the vehicle, id. at ¶ 34. Only after
holding that the search was unlawful, because neither the driver’s consent nor search-
incident-to-arrest of the driver extended to the passenger’s purse, did we go on to opine -10-
that “[e]ven if the search incident to arrest exception had applied, the search of Caulfield’s
purse would still be unlawful, since the trial court found that the officer ordered Caulfield
to leave her purse in the vehicle without having probable cause to believe that there was
contraband in the vehicle.” Id. at ¶ 35. We discussed the Kansas Supreme Court’s
decision in Boyd and concluded that, like the officers in Boyd, the officer in Caulfield did
not have probable cause to believe there was contraband in the vehicle when he ordered
the defendant to leave her purse. We concluded that, even if the search-incident-to-arrest
exception applied, based on Boyd, the search of the purse would still have been unlawful.
{¶ 22} In Mercier, the Ohio Supreme Court had a clear opportunity to adopt a
different rule for held or carried purses, a rule like the one that Raslovksy urges us to
apply. But the Court declined to do so, holding instead that purses in those circumstances
are still subject to search under Houghton. We think that Caulfield’s discussion of the
issue is unpersuasive because Caulfield did not consider or address Mercier’s implicit
rejection of Boyd. Anyway, the Caulfield discussion, although related to our analysis, is
not the holding of the case because the Caufield holding, which we recognize and apply,
is that the passenger’s purse could not be lawfully searched based on the driver’s consent
or the search-incident-to-arrest exception.
{¶ 23} Lastly, we note that even if we were to adopt the rule urged by Raslovsky,
it would not apply here. Based on the evidence, it appears that Raslovsky was not holding
her purse at the time that she was ordered out of the vehicle. According to Officer Nichols,
“* * * Officer Lish had Miss Raslovsky exit the vehicle and she grabbed her purse. Officer
Lish then told her to leave her purse inside.” (T. 29). And although Raslovsky herself
testified, “When I got out of the vehicle and I picked my purse up to get out and they took -11-
it from me and put it back in * * *” (T. 52), at the time of the event she was recorded as
saying “I tried to take my purse and you guys told me to leave it in.” (State’s Exhibit 2 at
9:35:27;10). We do not believe the evidence supports a conclusion that Raslovsky was
holding the purse at the time of the stop, and we further conclude it is not unreasonable
to ask persons momentarily removed from a vehicle for a dog deployment to leave behind
property not on their person at the time of the traffic stop.
{¶ 24} As it is, the search of Raslovsky’s purse was lawful based on the probable
cause arising from the drug dog’s alert. While Raslovsky’s purse was in the vehicle,
probable cause arose that allowed officers to search the interior of the vehicle and
containers therein. Accordingly, the trial court was correct in overruling the motion to
suppress.
{¶ 25} The sole assignment of error is overruled.
III. Conclusion
{¶ 26} We have overruled the sole assignment of error presented. The trial court’s
judgment is affirmed.
TUCKER, J., concurs.
FROELICH, J., dissents:
{¶ 27} I would conclude that the police officers did not lawfully require Raslovsky
to leave her purse in the vehicle and, consequently, the officers did not lawfully search
the purse after the dog’s alert. Accordingly, I dissent.
{¶ 28} Stephanie Raslovsky was the front-seat passenger in a vehicle that was -12-
stopped by Officer Nichols, a uniformed canine handler in a marked cruiser, due to a turn
signal violation. Police officers in an unmarked vehicle had followed the car from an area
where they had received “some drug complaints,” and the officers readily acknowledge
that the stop was pretextual. None of the vehicle’s occupants had an outstanding
warrant.
{¶ 29} The driver and her passengers, including Raslovsky, were removed from
the vehicle. Raslovsky left her purse in the vehicle at the officer’s instruction. Officer
Nichols’s dog, Gary, subsequently alerted on the passenger side of the vehicle, which
resulted in a search of the vehicle, including Raslovsky’s purse. Officer Lish found an
illegal drug in the purse.
{¶ 30} Current law generally permits pretextual traffics stops. See, e.g., Dayton v.
Erickson, 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996). Once a lawful stop has been
made, the police may require the driver and any passengers to exit the vehicle pending
completion of the traffic stop. State v. Mobley, 2d Dist. Montgomery No. 26044, 2014-
Ohio-4410, ¶ 13, citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d
331 (1977); Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997);
State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993). “Where there is a lawful
basis for the stop, ordering an occupant out of the car is proper, even if the officers are
not prompted by a reasonable, articulable suspicion of criminal activity.” Mobley at ¶ 13,
citing Evans at 408. Moreover, because a dog sniff does not constitute a search, a
canine officer may also conduct a free-air sniff of a vehicle without probable cause. E.g.,
Kettering v. Maston, 2d Dist. Montgomery No. 27567, 2018-Ohio-1948, ¶ 19. Current
case law indicates that an alert by a drug dog creates probable cause to search the -13-
vehicle for contraband. See id.
{¶ 31} Even ignoring developing areas of the law dealing with dog sniffs, see, e.g.,
Phipps, Probable Cause on a Leash, 23 B.U.Pub.Int.L.J. 57 (2014), including
developments regarding alerts for previously-illegal substances, there was no testimony
concerning this dog’s history or the training and qualifications of either the dog or his
handler. But neither the motion to suppress nor any facts or argument at trial “alerted”
the trial court to these issues, which were therefore waived. E.g., State v. Matthews, 2d
Dist. Miami No. 2014-CA-23, 2015-Ohio-1750, ¶ 29 (defendant waived any argument
regarding the dog’s or handler’s qualifications for purposes of appeal by failing to raise
these issues in his motion to suppress and failing to object at the suppression hearing to
the officer’s testimony about the use of the dog to establish probable cause to search the
vehicle).
{¶ 32} Regardless, I would conclude, on the facts before us, that the officer had no
authority to instruct Raslovsky to leave her private property in the vehicle, especially an
item so closely associated with a person such as her purse, in the absence of probable
cause to search Raslovsky or the vehicle in which she was seated.
{¶ 33} We commented on a similar situation in Caulfield, 2013-Ohio-3029, 995
N.E.2d 941 (2d Dist.). In that case, a deputy stopped a vehicle after observing that the
license plate was completely obscured by snow. The deputy arrested the driver on an
active warrant; the driver then gave consent for a search of the vehicle. The deputy
asked Caulfield, the front-seat passenger, to exit the vehicle and instructed her to leave
her purse in the car. Caulfield’s purse then was searched as part of the search of the
vehicle. On review, we concluded that the deputies did not lawfully search Caulfield’s -14-
purse based on the driver’s consent, officer safety, or as a search incident to the driver’s
lawful arrest. We further commented:
Even if the search incident to arrest exception had applied, the
search of Caulfield’s purse would still be unlawful, since the trial court found
that the officer ordered Caulfield to leave her purse in the vehicle without
having probable cause to believe that there was contraband in the vehicle.
Courts in other jurisdictions have held that an officer, without probable
cause to believe there is contraband in a vehicle, violates a passenger’s
Fourth Amendment rights when the officer orders the passenger to leave
her purse in the vehicle, and then subsequently searches the purse along
with the vehicle. See State v. Boyd, 275 Kan. 271, 282, 64 P.3d 419 (2003);
State v. Newsom, 132 Idaho 698, 700, 979 P.2d 100 (1998); State v.
Tognotti, 2003 ND 99, 663 N.W.2d 642, ¶ 21. In other words, “ ‘the police
cannot create a right to search a container by placing it within the passenger
compartment of a car or by ordering someone else to place it there for
them.’ ” Tognotti at ¶ 19, quoting State v. Holland, 135 Idaho 159, 163, 15
P.3d 1167 (2000).
In Boyd, a passenger did not consent to the search of her purse and
was ordered to leave her purse in the vehicle during a search of the vehicle
based on the driver’s consent. Boyd at 272-273, 64 P.3d 419. At the time
the officer ordered the passenger to leave her purse in the vehicle, he did
not have probable cause to believe that the vehicle or the purse contained
contraband. Id. at 283, 64 P.3d 419. Upon searching the vehicle, the -15-
officer discovered a crack pipe in the console of the vehicle. Id. at 272, 64
P.3d 419. Given the discovery of the crack pipe, the officer proceeded to
search the passenger’s purse. Id. at 273, 64 P.3d 419.
The Supreme Court of Kansas determined in Boyd “that where a
passenger is told by a police officer to get out of a lawfully stopped vehicle
and in response to the officer’s order to leave her purse in the vehicle, puts
the purse down and exits the vehicle, a subsequent search of the purse as
part of a search of the vehicle violates the passenger’s Fourth Amendment
right against unreasonable search and seizure.” Id. at 283, 64 P.3d 419;
See also Newsom, 132 Idaho at 700, 979 P.2d 100; Tognotti, 2003 ND 99,
663 N.W.2d 642, at ¶ 21.
Like the officers in Boyd, Deputy Wright did not have probable cause
to believe there was contraband in the vehicle when he ordered Caulfield to
leave her purse. Consequently, even if the search incident to arrest
exception applied in this case, per Boyd, the search of Caulfield’s purse
would still have been unlawful.
(Emphasis added.) Caulfield at ¶ 35-38. I would find Caulfield to be persuasive and hold
that the trial court erred in concluding that the search of Raslovsky’s purse was lawful.
{¶ 34} The majority opinion does not agree with our analysis in Caulfield because
Caulfield failed to discuss the Ohio Supreme Court’s apparent rejection of Boyd in State
v. Mercier, 117 Ohio St.3d 1253, 2008-Ohio-1429, 885 N.E.2d 942, which was rendered
five years before Caulfield.
{¶ 35} However, the facts in Mercier are distinguishable from those before us. In -16-
Mercier, police officers observed Charles Hagedorn, the driver of a vehicle in which
Mercier was the front-seat passenger, exit his vehicle, conduct a drug transaction, re-
enter his vehicle, and drive away. The officers stopped Hagedorn’s vehicle one to two
minutes after the sale. Upon questioning, Hagedorn admitted that he had marijuana in
the vehicle, and he gave the officer marijuana from a middle console. The police
removed Hagedorn from the vehicle, patted him down, and recovered money and rolling
papers.
{¶ 36} At this juncture, with Mercier still seated in the front passenger seat with her
purse, the police had probable cause to believe that the vehicle contained contraband.
The police then removed Mercier from the vehicle; at the officer’s instruction, Mercier left
her purse on the front seat. The police searched Mercier’s purse, finding contraband in
an Advil bottle within.
{¶ 37} In concluding that the search of Mercier’s purse was lawful, the First District
initially held that, “when a police officer has made a lawful custodial arrest of the occupant
of an automobile, the officer may, as a contemporaneous incident of that arrest, search
the passenger compartment of that automobile.” Mercier, 1st Dist. Hamilton No. C-
060490, 2007-Ohio-2017, ¶ 12, citing New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860,
69 L.Ed.2d 768 (1981). Citing Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d
408, the appellate court next discussed 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. Mercier at ¶ 14-15. Reading the cases together, the First District
concluded that Mercier’s purse, which was within reach of Hagedorn when he was
arrested, was lawfully searched. The court stated, in part: -17-
In Belton, the Court held that when the driver of a car is arrested, the area
within his immediate control includes the passenger compartment of the car
and any containers found there. The Belton Court defined container as
“any object capable of holding another object.” Mercier’s purse, in the front
seat of the car and inches away from Hagedorn, fit the Belton definition.
The purposes of the Belton rule are to protect police officers and preserve
evidence. If Mercier had been allowed to remove her purse prior to the
search of Hagedorn’s car, weapons or contraband could have been hidden
from police, and the purposes of the Belton rule would have been nullified.
***
(Citations omitted.) Id. at ¶ 17.
{¶ 38} The Ohio Supreme Court affirmed on the basis of Houghton, without
opinion.
{¶ 39} In contrast to Mercier, the police officers in this case lacked probable cause
to believe that the vehicle contained contraband when an officer instructed Raslovsky to
exit the vehicle and to leave her purse behind. The vehicle had been stopped for a traffic
violated after officers had followed the car from an area where they had received “some
drug complaints.” The police had not observed any occupant of the vehicle participate
in a drug transaction. Unlike Mercier, the search of the driver’s vehicle was not based
on probable cause to believe that drugs were present in the vehicle, and no one was in
custody when the dog sniff occurred. The rationales underlying Belton and Houghton,
which formed the basis for the First District’s reasoning, are inapplicable here. The Ohio
Supreme Court’s affirmance of the First District’s judgment on the basis of Houghton is -18-
equally inapplicable here due to the factual distinctions, and its holding is not inconsistent
with Caulfield, which, like the case before us, involved a search in the absence of probable
cause that there was contraband in the vehicle.
{¶ 40} Because I would find Caulfield persuasive and Mercier distinguishable, I
would hold that the search of Raslovsky’s purse was unlawful, and that the trial court
erred in denying her motion to suppress.
Copies sent to:
John M. Lintz Sara M. Barry Hon. Douglas M. Rastatter