[Cite as State v. Hamilton, 2011-Ohio-3835.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95720




                                        STATE OF OHIO

                                                        DEFENDANT-APPELLANT

                                                  vs.

                             CHRISTOPHER HAMILTON
                                                        PLAINTIFF-APPELLEE




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                                Cuyahoga County Common Pleas Court
                                      Case No. CR-536194

        BEFORE: E. Gallagher, J., Blackmon, P.J., and Rocco, J.
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       RELEASED AND JOURNALIZED:                 August 4, 2011


ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor
BY: Brad S. Meyer
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Timothy F. Sweeney
Law Office-Timothy Farrell Sweeney
The 820 Building, Suite 430
820 West Superior Avenue
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

       {¶ 1} The state of Ohio appeals from the decision of the trial court, granting

Christopher Hamilton’s motion to suppress.     The state argues that the arresting officer acted

within the bounds of the law when searching Hamilton’s vehicle and, therefore, the trial court

erred when granting the motion to suppress.    Finding no merit to this appeal, we affirm the

decision of the trial court.
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       {¶ 2} On April 21, 2010, a Cuyahoga County Grand Jury indicted Hamilton with one

count of having a weapon while under disability and one count of carrying a concealed

weapon arising from an April 7, 2010 arrest made by Sergeant Darren Senft of the

Warrensville Heights Police Department.      After Senft arrested Hamilton, he searched his

vehicle and recovered a .40 caliber Glock semi-automatic handgun.

       {¶ 3} On June 3, 2010, Hamilton moved to suppress the handgun.             The trial court

conducted a hearing on that motion on July 28, 2010, at which time the state presented the

testimony of one witness, Senft.   The trial court’s factual findings are as follows:

       {¶ 4} “The following facts are derived exclusively from the testimony of the state’s
sole witness, Sgt. Darren Senft:

       “On April 7, 2010, at approximately 2:00 a.m. Warrensville Heights Police Sergeant
       Darren Senft (‘Sgt. Senft’) was called to handle a disturbance involving a number of
       females. While he was dealing with these females ‘it was learned’ that they were
       witnesses to a shooting incident occurring in Maple Heights, Ohio. Maple Heights
       police were contacted and informed that Warrensville Heights police had material
       witnesses to the Maple Heights incident.

       “A Maple Heights officer showed up on-scene. ‘[W]hile we were assisting them
       with interviewing all the females there was a dark-colored late-model black Buick
       Regal that pulled out onto the street.’ Tr. 21:5. ‘The vehicle pulled on to [sic] the
       street, quickly backed out and drove off at a high rate of speed.’ Tr. 21:9. Sgt.
       Senft testified that because police vehicles were ‘completely blocking the street at that
       point in time,’ the only thing the driver of the Buick could have done was turn around.
         Tr. 21:9; 33:7.

       “At that time, Sgt. Senft did not know anything about the defendant’s vehicle, but he
       was asked by the Maple Heights officer to pursue it and stop it. Tr. 21:21; 22:2;
       47:18. According to Sgt. Senft, ‘I went after the vehicle, looked for it. And I did
                                       4

find the vehicle as it was pulling onto Warrensville Center Road, I got behind the
vehicle and it was traveling slower than normal. It went from the right lane into the
left lane without using its turn signal * * * I initiated a traffic stop for traveling at
lower than posted speeds.’ Tr. 22:16. At this time it was Sgt. Senft’s
understanding ‘[t]hat the party in the vehicle may have been involved in an incident in
Maple Heights.’ Tr. 30:10.

“Before the vehicle came to a complete stop, Sgt. Senft noticed the driver ‘leaning
over towards the right passenger side * * * And continued to lean over in that area and
then quickly sat back up in his seat.’ Tr. 23:15; 24:8. At that time, ‘we conducted
a felony stop. I had a backup officer at this point. We conducted a felony stop of
the vehicle, ordered him out at gunpoint and he was taken back to my vehicle. He
was taken into custody without any incident. He was handcuffed, placed in my car.’
  Tr. 25:22. At this point, defendant ‘was no longer a threat.’ Tr. 48:23.

“Sgt. Senft testified that ‘under normal circumstances [he] would not have arrested
someone for failure to use a signal before changing lanes. * * * [e]specially if [he]
found out later during [the] investigation [that the driver] had no active warrants, * * *
a valid driver’s license, and * * * insurance.’ Tr. 36:7, 37:8. Sgt. Senft testified
further that it was not until he had the defendant in his squad car that he asked for and
obtained defendant’s driver’s license. Tr. 34:24, 35:3. The State produced no
evidence or testimony that defendant was charged with or cited for any traffic
offenses.

“Sgt. Senft testified that he ‘held Mr. Hamilton for Maple Heights’ and ‘searched’ his
vehicle; that ‘while searching his vehicle, incident to the tow, a loaded .40 caliber
semiautomatic Glock was located and found inside of an unlocked glove box * * *.’
Tr. 27:6. He testified that ‘after the vehicle was inventoried, Maple Heights asked us
to hold on to it * * * so the vehicle was placed in our rear lot.’ Tr. 29:18, 39:11.

“According to Sgt. Senft, Warrensville Heights has a tow policy; this policy was never
produced at the hearing. Sgt. Senft testified that ‘[w]henever we tow a vehicle we
complete a tow inventory on the vehicle.’ Tr. 28:5, 17. Sgt. Senft testified further
that he is allowed to have a car towed and search the vehicle ‘[u]nder traffic arrests, if
no owner is present, abandoned motor vehicles * * *.’ Tr. 28:19. Then Sgt. Senft
testified that defendant’s car was not towed; that it was driven by an officer to the
Warrensville Police Department. Tr. 39:25.
                                                5


          “Sgt. Senft testified that after defendant was handcuffed and in custody in the squad
          car, getting a search warrant was ‘an option,’ and that he can ‘type up a search
          warrant in 20 minutes.’ Tr. 38:10; 48:21. Finally, Sgt. Senft testified that ‘it would
          have been no problem to get a search warrant * * * [b]ut if I’m towing a vehicle I’m
          also not obtaining a search warrant’; that ‘[a]s a normal course, it’s not necessary, if
          you’re towing a vehicle, to get a search warrant.’ Tr. 41:24; 48:15.”

          {¶ 5} On September 9, 2010, the trial court granted the motion to suppress.         The

state appeals, raising a single assignment of error:

          {¶ 6} “The trial court erred when it granted Appellee’s motion to suppress.”

          {¶ 7} The state argues that Senft acted lawfully in searching Hamilton’s            car

because (1) Hamilton’s traffic violations and his furtive movements towards the passenger

compartment provided the reasonable suspicion that Hamilton was armed, which allowed for

a stop and search of the passenger compartment; and (2) the search was a valid inventory

search.     We disagree with both arguments.

          {¶ 8} “Our standard of review with respect to motions to suppress is whether the trial

court’s findings are supported by competent, credible evidence. * * * This is the appropriate

standard because ‘in a hearing on a motion to suppress evidence, the trial court assumes the

role of trier of facts and is in the best position to resolve questions of fact and evaluate the

credibility of witnesses.       However, once we accept those facts as true, we must

independently determine, as a matter of law, and without deference to the trial court’s

conclusion, whether the trial court met the applicable legal standard.’”                 State v.
                                              6

Lloyd (1998), 126 Ohio App.3d 95, 709 N.E.2d 913; State v. Crosby, Cuyahoga App. No.

86393, 2006-Ohio-2227.

       {¶ 9} The Fourth Amendment to the United States Constitution provides: “the right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.”    The state bears the burden of establishing that a warrantless search

is reasonable pursuant to one or more exceptions to the Fourth Amendment’s warrant

requirement.   Xenia v. Wallace (1998), 37 Ohio St.3d 216, 524 N.E.2d 889,      paragraph two

of the syllabus; Crosby.   Here, the state relied upon both reasonable suspicion that Hamilton

was armed and the “inventory search” exception.

       {¶ 10} We find the state’s argument that Hamilton’s actions provided the reasonable

suspicion necessary to allow for a search of the passenger compartment misplaced.          The

state’s reliance on State v. Thomas, Cuyahoga App. No. 93918, 2010-Ohio-4132, is factually

distinguishable.   In Thomas, this Court held that where the suspect is in an automobile and

the officer has reasonable articulable suspicion that the suspect is armed or dangerous, the

officer may search those areas of the passenger compartment that could contain weapons.

However, this case, unlike Thomas, involved a search incident to an arrest.     Senft testified

that he arrested and placed Hamilton in the back of the police car well before he searched

Hamilton’s vehicle.   The defendant in Thomas, was not under arrest at the time of the search

and, as the Thomas court noted, “once Thomas was issued a traffic citation, he would be
                                              7

returning to his vehicle and have access to the console.”      Hamilton, by contrast, had been

placed under arrest and would not be returning to his car but, instead, would be on his way to

the Maple Heights Police Department.      Accordingly, we find no merit to this portion of the

state’s argument.

       {¶ 11} We agree with the trial court’s conclusion that Senft had no probable cause to

place Hamilton under arrest.    Senft observed Hamilton make two traffic violations and then

lean over into the passenger compartment area.      He described this as a furtive gesture, which

precipitated a felony stop.    Senft immediately placed Hamilton under arrest at gunpoint.

However, Senft provided no testimony or other evidence to explain why he arrested

Hamilton.   At the time of Hamilton’s arrest, the Maple Heights Police Department, not Senft

of the Warrensville Heights Police Department, merely suspected that Hamilton may have

been involved in the shooting in Maple Heights.       Specifically, Senft testified that “we were

called to * * * a disturbance involving a number of females.      Evidently those females were

involved in an incident in Maple Heights during which there was a shots-fired call.        There

was a number of shots fired, a number of females involved during that incident * * *.”        Tr.

21.   The state presented no evidence that any male was involved in this shots-fired incident.

 The trial court correctly concluded that while this may be sufficient to justify a Terry stop, it

could not justify an arrest.   See Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20
                                               8

L.Ed.2d 889.

          {¶ 12} Additionally, at the time Sergeant Senft stopped Hamilton, he had committed

only minor traffic violations for which he could not lawfully be arrested.     Both Section 14,
                                                                           1




Article I of the Ohio Constitution and R.C. 2935.26 prohibits warrantless arrests for minor

misdemeanors unless certain statutorily enumerated exceptions apply.            State v. Golly,

Cuyahoga App. No. 89481, 2008-Ohio-447; State v. Brown, 99 Ohio St.3d 323,

2003-Ohio-3931, 792 N.E.2d 175.          There is no record before this court that the state

presented evidence that any of the R.C. 2935.26 exceptions applied.

          {¶ 13} Finally, we deal with the state’s claim that the search of Hamilton’s car was a

lawful “inventory search.”      The inventory exception to the Fourth Amendment’s warrant

requirement permits police to conduct a warrantless search of a vehicle in order to inventory

its contents after the vehicle has been lawfully impounded. State v. Mesa, 87 Ohio St.3d

105, 1999-Ohio-253, 717 N.E.2d 329; Crosby.            The rationale for excluding inventory

searches from the warrant requirement is that inventory searches are an administrative or

caretaking function, rather than an investigative function. S. Dakota v. Opperman (1976),

428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; Crosby.

          {¶ 14} In a departure from long-established precedent, the United States Supreme


      1
       R.C. 4511.39(B) defines failure to use a turn signal before turning or
changing lanes as a minor misdemeanor traffic offense.
                                              9

Court significantly narrowed the parameters of searches conducted incident to arrests.           In

Arizona v. Gant (2009), 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, the Supreme Court

specifically held that police officers may search a vehicle incident to arrest only where the

suspect is within reaching distance of the vehicle, or there is reason to believe evidence of the

arresting offense will be present in the vehicle.     Id. at 491.   This court has since upheld the

reasoning outlined in Gant, see State v. Thomas, Cuyahoga App. No. 91891,

2009-Ohio-3461.

       {¶ 15} In agreeing with Gant that the motion to suppress should have been granted,

the Supreme Court reasoned that because Gant had been arrested, handcuffed, and detained in

a patrol car, he had no possible ability to regain access to his vehicle.       Id.   Further, Gant

was arrested for driving with a suspended license, for which no related evidence of this

conduct could be found inside the vehicle.      Id.     The court held the search to be invalid.

Id.

       {¶ 16} Similarly, in Thomas, police officers observed Thomas failed to use his turn

signal and arrested him for driving without a license, handcuffed him and placed him in the

back of the patrol car.   The officers then searched the vehicle and found two bags of crack

cocaine in the glove box.     Id.   Following the reasoning outlined in Gant, this Court held

that because the officers handcuffed and placed Thomas in a patrol car where he no longer

posed a risk to officer safety, and because there would be no evidence of the offense of
                                             10

driving with a suspended license present in the vehicle, the search of Thomas’s vehicle was

illegal.    Id.

           {¶ 17} Accordingly, because Senft arrested, handcuffed, and placed Hamilton in the

rear of the police car, Hamilton neither posed a threat to the officers’ safety, nor did he have

any possible ability to regain access to his vehicle.     Moreover, Senft could not possibly

expect to find evidence of the minor traffic violations Hamilton committed inside the vehicle.

 A search incident to arrest under these circumstances is clearly not permitted under Gant and

Thomas.

           {¶ 18} Furthermore, the inventory search exception to the warrant requirement does

not apply in the present case because Hamilton’s vehicle was never lawfully impounded.

See Crosby.       There was no evidence in the record to indicate the vehicle was unlawfully

parked, which would have required a tow.       Additionally, the state produced no evidence of

any legitimate reason to have the vehicle towed or impounded:       Hamilton produced a valid

driver’s license, and there was no evidence that his vehicle was unregistered or unsafe.

Moreover, Senft admitted that Hamilton’s vehicle was not actually towed; another officer

drove the vehicle from its parking spot to the Warrensville Heights Police Station.       Senft

simply testified that the vehicle was searched incident to a tow, and that the Maple Heights

Police Department wanted the vehicle.

           {¶ 19} Based on the foregoing, we agree with the trial court’s conclusion that the
                                             11

search of Hamilton’s vehicle was illegal.     Accordingly, the state’s sole assigned error is

overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this judgment

into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and
KENNETH A. ROCCO, J., CONCUR
