[Cite as Euclid v. Hull, 2012-Ohio-3801.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97273




                                      CITY OF EUCLID
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       FLOYD J. HULL
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Criminal Appeal from the
                                       Euclid Municipal Court
                                      Case No. 2011 CRB 00237

        BEFORE: Keough, J., Blackmon, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: August 23, 2012
FOR APPELLANT

Floyd J. Hull, pro se
10708 Hampden Avenue
Cleveland, OH 44108

ATTORNEYS FOR APPELLEE

Chris Frey
Law Director, City of Euclid
BY: Jason L. Carter
Assistant Law Director
585 East 222nd Street
Euclid, OH 44123
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Floyd J. Hull, appeals from the trial court’s judgment

denying his motion to suppress. For the reasons that follow, we affirm.

                                   I. Procedural History

       {¶2} Hull was charged in the Euclid Municipal Court with one count of drug

abuse in violation of Euclid Codified Ordinances 513.03, a first degree misdemeanor.

He pled not guilty and subsequently filed a motion to dismiss in which he asserted that the

warrantless search of his automobile when he was arrested was unconstitutional and,

therefore, the charge should be dismissed. The court converted the motion to dismiss to

a motion to suppress and held a hearing on the motion. The court subsequently denied

Hull’s motion.    Hull then entered a plea of no contest to the amended charge of

attempted possession of drugs. The court found him guilty and sentenced him to a fine

plus court costs. The court granted Hull’s motion for a stay of execution pending appeal.



                                  II. Factual Background

       {¶3} The city presented two witnesses at the suppression hearing. City of Euclid

police officer Brian Collins testified that on March 13, 2011, while on patrol, he ran the

license plate number of a car in the parking lot at 681 Babbitt, Euclid, Ohio and

determined there was a drug-related felony warrant for the owner of the vehicle. Officer

Collins testified that after confirming that federal marshals were interested in serving the
warrant, he saw the vehicle pull out of the parking lot. The driver of the vehicle roughly

matched the description of the individual on the warrant. Also present in the vehicle

were a female passenger in the front seat and two children in the back seat.

       {¶4} Officer Collins waited for other police officers to assist and then initiated a

felony traffic stop of the vehicle. Officer Collins testified that before he began to give

commands to the driver of the car, the driver (later identified as Hull) put the car keys on

the roof of the car and exited the vehicle. Officer Collins ordered Hull to his patrol car

and then, upon determining that Hull was not the person of interest on the warrant, asked

him to have a seat in the back of his patrol car until the police determined that Mario

Hull, Hull’s son and the subject of the warrant, was not in the car.

       {¶5} Hull sat in the back seat of the patrol car with his legs out of the car and the

door open. Officer Collins testified that Hull was very cooperative and informed the

officer that his son was wanted on the warrant. Hull offered to drop his passengers off

and then meet with the police at the police station to assist with providing information

about his son. While Officer Collins was speaking with Hull, however, Officer Orlando

Almonte advised him that the police had found drugs in Hull’s car.

       {¶6} Officer Almonte testified that his role in the stop was to maintain visual

contact with the occupants of the vehicle. Almonte testified that as he watched the car

from about one car length away, he observed the female, front seat passenger moving

“aggressively” in the car. Almonte testified that based on his experience, it appeared that

she was either looking for something or trying to hide something.              When Officer
Almonte approached the passenger side of the car and asked the female what she was

doing, she told him that she was looking for a cigarette. Officer Almonte testified that he

found this answer suspicious because the woman had a cigarette in her mouth.

         {¶7} Officer Almonte then asked the woman to exit the vehicle. As she did so,

he observed a clear, plastic bag with a knot in it sticking out of the center console in the

front seat in the area where the woman had been moving as Officer Almonte watched.

Officer Almonte testified that based upon his experience and the woman’s movements, he

believed there might be narcotics or other contraband in the bag.

         {¶8} After obtaining the woman’s name and determing that there was a warrant

for her arrest, the police detained her in the back seat of Officer Almonte’s patrol car.

Officer Almonte then searched the center console and found the bag containing marijuana

and another bag containing 15 white pills.

         {¶9} Officer Almonte then informed Officer Collins of the discovery of the

marijuana and pills. Officer Collins then advised Hull that he was under arrest for drug

abuse.

                                         III. Analysis

         {¶10} In his single assignment of error, Hull contends that the trial court erred in

denying his motion to suppress.

         {¶11} 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. 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, 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. Id.

       {¶12} The Fourth Amendment to the United States Constitution provides

protection against unreasonable searches and seizures. Searches conducted without a

warrant are per se unreasonable, subject to a few “jealously and carefully drawn”

exceptions. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 10,

citing Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958).

       {¶13} One such exception to the warrant requirement is a search incident to a

lawful arrest, “which allows officers to conduct a search that includes an arrestee’s person

and the area within the arrestee’s immediate control.” Smith at ¶ 11, citing Chimel v.

California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685. “The exception

derives from interests in officer safety and evidence preservation that are typically

implicated in arrest situations.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173

L.Ed.2d 485 (2009). But in Gant, the United States Supreme Court held that an officer

may search a vehicle incident to a recent occupant’s arrest only when the arrestee is

unsecured and within reaching distance of the passenger compartment at the time of the

search or when it is reasonable to believe that the vehicle contains evidence relevant to

the offense of arrest. Id.
      {¶14} Hull contends that in light of Gant, the trial court erred in denying his

motion to suppress. He contends that when the police searched his car, both he and the

female front seat passenger were secured in separate patrol cars and not in reaching

distance of his car. He further contends that the female passenger was arrested for a

probation violation (failure to complete community service and failure to appear in court)

and, therefore, the search of his car was not based upon a reasonable expectation that any

evidence relating to that violation would be found therein. Accordingly, Hull contends

the warrantless search was unconstitutional.

      {¶15} However, the holding in Gant is inapplicable to the facts of this case. As

the United States Supreme Court specifically recognized in Gant, “other established

exceptions to the warrant requirement authorize a vehicle search under additional

circumstances when safety or evidentiary concerns demand.” Id. at 346. One such

exception is the warrantless search of an automobile where the search is based upon

probable cause that the vehicle contains contraband. Id. at 347. See also Maryland v.

Dyson, 527 U.S. 465, 466-467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); United States v.

Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Moore, 90

Ohio St.3d 47, 49, 2000-Ohio-10, 734 N.E.2d 804.

      {¶16} Probable cause is a particularized and objective basis for suspecting the

person stopped of criminal activity, and is established where the known facts and

circumstances are sufficient to cause a reasonable person to believe that contraband or

evidence of a crime will be found.             State v. Newsome, 8th Dist. No. 93328,
2010-Ohio-2891, ¶ 19, citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134

L.Ed.2d 911 (1996).

      {¶17} Here, the front-seat passenger’s aggressive movements in the car after the

stop and her illogical response to Officer Almonte’s question regarding what she was

doing, coupled with his observation of the plastic bag sticking out of the center console

when he questioned her, led Officer Almonte to believe that there was criminal activity

afoot and a reasonable probability that the bag contained illegal narcotics. Thus, there

was probable cause that the vehicle contained contraband and the search of the car was

proper. Accordingly, the trial court properly denied Hull’s motion to suppress.

      {¶18} 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 issue out of this court directing the municipal

court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

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

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, J., CONCURS;
PATRICIA A. BLACKMON, A.J., DISSENTS
WITH SEPARATE OPINION.

PATRICIA ANN BLACKMON, A.J., DISSENTING:

         {¶19} I respectfully dissent from the majority opinion. I feel that the bright line

difference between the probable cause exception to the warrant requirement and the

reasonable suspicion requirement under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 18, 20

L.Ed.2d 889 (1968), is blurred in this opinion. I agree with the majority opinion that

Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 110, 173 L.Ed.2d 485 (2009), was not limited to

just one warrantless search and seizure exception, and other exceptions apply depending

on the facts.     I disagree that the probable cause exception is applicable in this case.

         {¶20} The city of Euclid argued that the search incident to arrest exception

justified the police search of the console. The majority opinion did not rely on the city’s

argument.       I appreciate why the majority opinion failed to rely on the city’s argument.

It would be hard to fashion an exigent circumstance in this case and use the broadly

constructed exigent circumstance outlined in New York v. Belton, 453 U.S. 454, 101 S.Ct.

2860, 69 L.Ed.2d 768 (1981), because that case was overruled by Gant.

         {¶21} Consequently, the majority opinion relies on the probable cause exception to

the warrant requirement.       This exception, however, carries with it a somewhat hefty test.

 It requires that the court look at the defendant’s behavior and determine whether the

officer had reasonable cause to believe or a fair probability that criminal activity was

afoot.    In my view, the officers had no criminal evidence against Hull.          I realize the

officers did find drugs in the console after observing the passenger’s behavior. But, this
subsequent finding of evidence cannot justify the search, regardless of Hull’s “taking

responsibility for what was in the car.” Probable cause should and must exist prior to

the search.      Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

         {¶22} I previously commented that the majority opinion blurs the line between

Terry v. Ohio’s reasonable suspicion exception that justifies a pat-down for weapons

search and the probable cause exception that justifies a search for contraband.    I say this

because the only basis for the search of the console was furtive movement, the

passenger’s weak explanation for her movement, and a partially exposed baggie.

Probable cause has never been used as an exception to a warrantless search when the

items or events are equally consistent with innocent and not-so-innocent behavior. See

State v. Fahy, 49 Ohio App.3d 160 551 N.E.2d 1311 (3d Dist.1988). A baggie is just as

likely to transport a peanut butter sandwich, or as we see way too often, be a carrier for

drugs.    Additionally, it is innocent behavior to look for a cigarette.         The officer

observed one in her mouth, which is consistent with her explanation that she was looking

for a cigarette.    These consistencies with innocent and not-so-innocent behavior or items

should not be allowed to form the basis for the probable cause exception.

         {¶23}     The majority opines that it is the furtive movement, the partially exposed

baggie, and the weak explanation that supports the            probable cause exception.     I

disagree. This sounds more like Terry v. Ohio’s reasonable suspicion that justifies a

pat-down for weapons, not a search for contraband.         Accordingly, I would require the
officer to take his observations to a neutral detached magistrate to determine whether his

observations were sufficient for a search warrant; consequently, I dissent.
