[Cite as State v. Morlock, 2013-Ohio-641.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-12-21

        v.

RANDALL E. MORLOCK,                                       OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR20120065

                                      Judgment Affirmed

                           Date of Decision: February 25, 2013




APPEARANCES:

        Jason N. Flower for Appellant

        Jana E. Emerick for Appellee
Case No. 1-12-21


WILLAMOWSKI, J.

      {¶1} Defendant-Appellant, Randall E. Morlock (“Morlock”), appeals the

judgment of the Allen County Court of Common Pleas finding him guilty of

possession of crack cocaine, after his motion to suppress was denied and he

entered a plea of no contest. On appeal, Morlock contends that the trial court

erred when it denied his motion to suppress because he claims that the search of

his vehicle was an illegal, warrantless search and because the search was not a

valid Terry search. For the reasons set forth below, the judgment is affirmed.

      {¶2} On November 30, 2011, at approximately 1:15 a.m., Officer Mark

Link of the Lima Police Department was on patrol when he observed Morlock

park his vehicle and go up to the front porch of a duplex, which was a suspected

drug house. (04/06/12 Hearing Tr. 7)     Officer Link called dispatch to check on

the license plates and also called Officer Jesse Harrod to respond. Officer Link

was subsequently informed that the license plates on the vehicle were not valid

and they needed to be confiscated. (Tr. 9)     Morlock left the duplex within 2-3

minutes, and Officer Link followed him and initiated a traffic stop because of the

invalid license plates. During the traffic stop, a small quantity of crack cocaine

was found in the vehicle and Morlock was then taken into custody. (Tr. 17)

      {¶3} On February 16, 2012, the Allen County Grand Jury returned a single

count indictment charging Morlock with possession of cocaine, a felony of the


                                        -2-
Case No. 1-12-21


fifth degree in violation of R.C. 2925.1(A)&(C)(4)(a). Morlock entered a plea of

not guilty. Morlock filed a motion to suppress, claiming that the warrantless

search of the vehicle violated his right to be free from unlawful searches and

seizures.

       {¶4} On April 4, 2012, a hearing was held on Morlock’s motion to

suppress.   The trial court heard the testimony of the two officers who were

involved in the traffic stop. Officer Link testified that he had nearly 20 years of

law enforcement experience. He had called dispatch to check on Morlock’s plates

because it was late at night in a high crime area where there had been problems

with prostitution, drugs, robberies, numerous assaults, and even shootings. (Tr.

18)   The police had received reports of drug activity at the building where

Morlock parked and approached the front stairs. (Tr. 7) Just after Officer Link

learned that the license plates needed to be confiscated, he observed Morlock

returning to his truck and beginning to drive away. In Officer Link’s experience,

this type of short-term, in-and-out traffic was indicative of the drug trade. (Tr. 18-

19)

       {¶5} Link hurried to catch up with Morlock and activated his overhead

lights in order to make a traffic stop. Officer Link testified that Morlock did not

initially stop, but rather, drove further down the block and then pulled over to the

curb. (Tr. 11) Link pulled in behind the pick-up truck, which was lit with both the


                                         -3-
Case No. 1-12-21


cruiser’s 360 lights and a spotlight that Link put on. At that time, Link observed

Morlock hold his arm out, then lean forward and down to the right while still

seated inside the pick-up truck. (Tr. 11-12) Based upon this type of “furtive”

movement, Link became concerned that Morlock was trying to hide either some

type of weapon or contraband. (Tr. 12)

      {¶6} Officer Link approached the pickup truck on the driver’s side while

Officer Harrod, who had just arrived as backup, approached the truck on the

passenger side.    (Tr. 12-13) Because of Link’s concern that Morlock may have

hidden a weapon, Link instructed Morlock to exit the vehicle and to stand with

Officer Harrod on the passenger side of the vehicle in the tree-lawn area. (Tr. 13-

14) Morlock complied.

      {¶7} Officer Link walked up to the pickup truck where Morlock had left the

driver’s door open. Because of Officer Link’s belief that Morlock had been hiding

a weapon or contraband, and because the vehicle was ultimately going to be

impounded and searched pursuant to the impound, Link looked inside the truck to

see what Morlock may have hidden. (Tr. 15, 19, 47) The only item on the floor of

the truck, just beneath the edge of the seat area, was a wadded up tissue. (Tr. 15-

17) Link retrieved the tissue and found crack cocaine inside. (Tr. 17) Link then

advised Officer Harrod to place Morlock under arrest.




                                         -4-
Case No. 1-12-21


       {¶8} On April 25, 2012, the trial court overruled Morlock’s motion to

suppress. Thereafter, a plea agreement was reached, and Morlock withdrew his

plea of not guilty and entered a plea of no contest. On May 1, 2012, the trial court

found Morlock guilty and sentenced him to 46 days in jail, with credit for time

served of 46 days.

       {¶9} It is from this judgment that Morlock now appeals, raising the

following two assignments of error for our review.

                           First Assignment of Error

       The trial court erred in overruling [Morlock’s] motion to
       suppress because Morlock was in custody, and the search of the
       vehicle was outside the scope of the detention as he did not have
       access to the vehicle at the time of the search.

                          Second Assignment of Error

       The trial court erred in overruling [Morlock’s] motion to
       suppress because the stop conducted by Patrolman Link was not
       a valid Terry stop.

       {¶10} Both of Morlock’s assignments of error assert that the trial court

erred when it failed to grant his motion to suppress the evidence of the cocaine

that was discovered during the traffic stop. Morlock does not dispute that the

officers had probable cause to make the traffic stop but he contends that there was

no basis for the warrantless search of the vehicle.          Because both of the

assignments of error are related and involve Fourth Amendment exceptions

pertaining to warrantless searches, we shall discuss them together.

                                        -5-
Case No. 1-12-21


      {¶11} The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and

seizures and require the suppression of any evidence seized as a result of an

unreasonable search and seizure. Mapp v. Ohio, 367 U.S. 643 (1961). The United

States Supreme Court has repeatedly emphasized the general rule that warrantless

searches, conducted outside the judicial process, are per se unreasonable under the

Fourth Amendment, subject only to a few specifically established and well-

delineated exceptions. Arizona v. Gant, 556 U.S. 332 (2009), quoting Katz v.

United States, 389 U.S. 347, 357 (1967); State v. Grubb, 186 Ohio App.3d 744,

2010-Ohio-1265, ¶ 14 (3d Dist.).

      {¶12} At a suppression hearing, the state bears the burden of establishing

that a warrantless search and seizure falls within one of the exceptions to the

warrant requirement and that it meets Fourth Amendment standards of

reasonableness.    Xenia v. Wallace, 37 Ohio St.3d 216 (1988), paragraph two of

the syllabus; State v. Penn, 61 Ohio St.3d 720, 723 (1991); Grubb, supra. The

Supreme Court of Ohio has established the standard of review for a motion to

suppress evidence:

      Appellate review of a motion to suppress presents a mixed question
      of law and fact. When considering a motion to suppress, the trial
      court assumes the role of trier of fact and is therefore in the best
      position to resolve factual questions and evaluate the credibility of
      witnesses. * * * Consequently, an appellate court must accept the
      trial court's findings of fact if they are supported by competent,

                                        -6-
Case No. 1-12-21


       credible evidence. * * * Accepting these facts as true, the appellate
       court must then independently determine, without deference to the
       conclusion of the trial court, whether the facts satisfy the applicable
       legal standard. * * *

(Citations omitted) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8;

accord, State v. Wilson, 3d Dist. No. 5-07-47, 2008-Ohio-2742, ¶ 15.

       {¶13} Morlock claims the search was unauthorized, relying upon the

United States Supreme Court’s opinion in Arizona v. Gant, supra, for the

proposition that police may search a vehicle incident to an occupant’s arrest only

if the arrestee is within reaching distance of the passenger compartments at the

time of the search, or if it is reasonable to believe that the vehicle contains

evidence of the offense for which the defendant was arrested. See Gant, U.S. 556

at 343. Morlock maintains that officer safety was not at issue because he was

outside the vehicle, next to Officer Harrod, and in police custody.          Morlock

contends that he did not have access to the interior of his vehicle at the time of the

search, so there was no justification to conduct the warrantless search as a search

incident to arrest. And, it was not reasonable to believe that the interior of the

vehicle contained any evidence of the offense for which he was stopped, because

the invalid plates were evident from the outside of the vehicle, and had already

been confirmed by police dispatch. Therefore, he claims that it was not reasonable

for the officer to “believe the vehicle contain[ed] evidence of the offense of

arrest.” See Gant.

                                         -7-
Case No. 1-12-21


       {¶14} We find that Morlock’s arguments fail for several reasons. First, this

was not a “search incident to an arrest,” which was the issue considered by the

Supreme Court in Gant. Morlock was not under arrest, and it was not likely that

he would have been arrested for the invalid plates, as the vehicle did not belong to

him. It is conceivable that, if the officer had not found the cocaine, Morlock might

have been allowed to return to the vehicle to gather personal belongings from the

vehicle before it was impounded. Therefore, it is reasonable that the officers

would want to verify that Morlock was not hiding a weapon when Officer Link

observed him making a “furtive movement” after Morlock’s vehicle was stopped.

       {¶15} Officer Link described Morlock’s actions that he observed right after

he stopped his vehicle, stating that, “I saw him lean over and forward with his

right hand. * * * I noticed that his arm is straight, so he leans like this (indicating),

and then he leans back over to the left and then starts rolling down the window.”

(Tr. 11-12)

       Q.     And what did you interpret that [movement] to be?

       A. I interpreted that he might be trying to hide either some type of
       weapon or contraband.

(Tr. 12)

       {¶16} Because of this concern, Officer Link asked Morlock to step out of

the vehicle and to stand with Officer Harrod.

       Q.     And why did you do that?

                                          -8-
Case No. 1-12-21



       A. Because I don’t know if he’s trying to hide – I don’t know if
       he’s got a weapon up there trying to hide. And if I see somebody do
       what I consider or construe a furtive movement, for my safety, for
       the other officer’s safety, I don’t go any farther up on a vehicle than
       that.

(Tr. 13-14) Officer Link did not do an exhaustive search of the vehicle, but

merely looked inside in the area where he saw Morlock reaching, and immediately

noticed the tissue. (Tr. 15-16)

       {¶17} It was only after Officer Link opened the tissue and found what

appeared to be rocks of crack cocaine that he instructed Officer Harrod to take

Morlock into custody.

       Q.   Prior to that, was [Morlock] under arrest?

       A.   No, he was not.

       Q. He was just being detained so you could do your protective
       sweep?

       A.   Correct.

(Tr. 17)

       {¶18} The evidence clearly demonstrates that concern for the officers’

safety was a primary motivation behind Officer Link’s examination of the vehicle.

Because of Morlock’s suspicious movements, Officer Link believed that Morlock

“was attempting to hide either a weapon or contraband.” (Tr. 50)




                                         -9-
Case No. 1-12-21


        {¶19} Defense counsel argues that Officer Link’s claimed observation of a

“furtive movement” was just a pretext, and that it is not uncommon for anyone to

make those types of movements upon being stopped by a police officer, when they

reach over to turn off the vehicle, or to retrieve a registration or driver’s license.

However, Officer Link testified that he was certain that Morlock’s actions were

definitely suspect. He testified,

        I have twenty years experience. I’ve done a lot of traffic stops in my
        time. I’ve seen a lot of furtive movements. I’ve seen natural
        movements. I’ve seen people get in, get out of their vehicles; how
        they act; how they interact. I know how I interact when I turn my
        vehicle on or when I lean over to put something down.

        {¶20} The holding in Gant was intended to limit the overly broad reading

of New York v. Belton, 453 U.S. 454 (1981) that the Supreme Court feared had

expanded to the point of “giving police officers unbridled discretion to rummage

at will among a person's private effects.”1 Gant at 345. The Supreme Court did

not intend to eliminate existing legitimate reasons for conducting a warrantless

search. In fact, Gant specifically affirmed the Fourth Amendment exceptions that

“ensure that officers may search a vehicle when genuine safety or evidentiary


1
  The Supreme Court stated that “[i]t is particularly significant that Belton searches authorize police
officers to search not just the passenger compartment but every purse, briefcase, or other container within
that space. A rule that gives police the power to conduct such a search whenever an individual is caught
committing a traffic offense, when there is no basis for believing evidence of the offense might be found in
the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the
character of that threat implicates the central concern underlying the Fourth Amendment—the concern
about giving police officers unbridled discretion to rummage at will among a person's private effects.”
Gant at 345.


                                                   -10-
Case No. 1-12-21


concerns encountered during the arrest of a vehicle's recent occupant justify a

search.” Id. at 347.

       Other established exceptions to the warrant requirement authorize a
       vehicle search under additional circumstances when safety or
       evidentiary concerns demand. For instance, Michigan v. Long, 463
       U.S. 1032, * * * (1983), permits an officer to search a vehicle's
       passenger compartment when he has reasonable suspicion that an
       individual, whether or not the arrestee, is “dangerous” and might
       access the vehicle to “gain immediate control of weapons.” * * * If
       there is probable cause to believe a vehicle contains evidence of
       criminal activity, United States v. Ross, 456 U.S. 798 (1982),
       authorizes a search of any area of the vehicle in which the evidence
       might be found. * * * Ross allows searches for evidence relevant to
       offenses other than the offense of arrest, and the scope of the search
       authorized is broader. Finally, there may be still other circumstances
       in which safety or evidentiary interests would justify a search. * * *

Gant at 346-347.

       {¶21} In addition to continuing to allow for searches when safety is a

concern, Gant continues to allow for evidence relevant to offenses other than the

offense of the arrest under appropriate circumstances. See id.; see Ross, supra;

see, also, State v. Kessler, 53 Ohio St.2d 204 (1978). In this case, Officer Link was

concerned that Morlock may have hidden a weapon or contraband. Morlock was

observed in an area with a high crime rate, late at night, and had just made a very

brief stop at a location that was suspected to be a place where drugs were sold.

Officer Link had considerable evidence before him that would cause him to

reasonably believe that Morlock may have been attempting to hide drugs when he

made his furtive movement.

                                        -11-
Case No. 1-12-21


       {¶22} Morlock also submits that the stop conducted by Officer Link was

not a valid “Terry stop.” An investigative stop, or “Terry stop,” is a common

exception to the Fourth Amendment warrant requirement. Terry v. Ohio, 392 U.S.

1 (1968). It is well-recognized that officers may briefly stop and detain an

individual, without an arrest warrant and without probable cause, in order to

investigate a reasonable and articulable suspicion of criminal activity. Id.; see,

also, State v. Bobo, 37 Ohio St.3d 177 (1988). Here, the initial stop was not an

investigative stop pursuant to Terry, but was made because of the invalid license

plates. However, even under Terry, the scope of the officer’s limited search was

not unreasonable based upon the officer’s safety concerns and reasonable

articulable suspicion that Morlock may have been engaging in criminal activity.

Bobo, 37 Ohio St.3d at 179; Terry, 392 U.S. at 21.

       {¶23} If Morlock had not been taken into custody because of the cocaine,

there is no assurance that he would not have had access to the interior of the

vehicle.   Therefore, this situation is distinguishable from Gant, wherein the

defendant was under arrest and secured in handcuffs inside a patrol car without the

possibility of leaving police custody. The search of the vehicle was based upon

concern for the officers’ safety. In addition, Officer Link also reasonably believed

that there could have been contraband hidden under the seat. The search of the

vehicle was not a search incident to arrest, therefore, the rule announced in Gant is


                                        -12-
Case No. 1-12-21


not applicable. See, also, State v. McClellan, 3d Dist. 1-09-21, 2010-Ohio-314, ¶

46. Based on the above, we overrule Morlock’s first and second assignments of

error.

         {¶24} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON, P.J. and ROGERS, J., concur.

/jlr




                                        -13-
