[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                         :
                                                     :

                                                ...........

                                               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

                                               .............

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.



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John M. Lintz
Sara M. Barry
Hon. Douglas M. Rastatter
