           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    United States v. Montgomery                 No. 02-4234
        ELECTRONIC CITATION: 2004 FED App. 0243P (6th Cir.)
                    File Name: 04a0243p.06                                  Appellant.    Timothy D. Oakley, UNITED STATES
                                                                            ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF:
                                                                            Richard W. Smith-Monahan, OFFICE OF THE FEDERAL
UNITED STATES COURT OF APPEALS                                              PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.
                                                                            Timothy D. Oakley, UNITED STATES ATTORNEY,
                   FOR THE SIXTH CIRCUIT                                    Cincinnati, Ohio, for Appellee.
                     _________________
                                                                                                _________________
 UNITED STATES OF AMERICA , X
            Plaintiff-Appellee, -                                                                   OPINION
                                   -                                                            _________________
                                   -  No. 02-4234
           v.                      -                                           KENNEDY, Circuit Judge. Defendant Craig Montgomery
                                    >                                       (“defendant”) appeals the district court’s denial of his motion
                                   ,                                        to suppress the crack cocaine that law enforcement officers
 CRAIG MONTGO MERY ,               -
         Defendant-Appellant. -                                             seized during a search of his person, following a traffic stop
                                                                            of the vehicle in which he was a passenger. Preserving his
                                  N                                         right to appeal the validity of that search, defendant pleaded
      Appeal from the United States District Court                          guilty to one count of possession with the intent to distribute
     for the Southern District of Ohio at Cincinnati.                       over five grams of crack cocaine in violation of 21 U.S.C.
    No. 02-00056—S. Arthur Spiegel, District Judge.                         §§ 841(a)(1) and (b)(1)(B)(iii). For the following reasons, we
                                                                            AFFIRM the district court’s denial of defendant’s suppression
                     Argued: April 26, 2004                                 motion.

               Decided and Filed: July 27, 2004                                                    I. Background

Before: BOGGS, Chief Judge; KENNEDY, Circuit Judge;                            At approximately 8:00 p.m. on April 16, 2002, Trooper
            RUSSELL, District Judge.*                                       Brian Workman (“Workman”), of the Ohio State Highway
                                                                            Patrol, lawfully stopped a vehicle in Scioto County, Ohio, for
                       _________________                                    a speeding violation. Workman learned that the driver of the
                                                                            vehicle, Meyah McCrory (“McCrory”), had been operating
                             COUNSEL                                        the vehicle on a suspended license. According to Workman,
                                                                            the vehicle’s passengers appeared very nervous. Trooper
ARGUED: Richard W. Smith-Monahan, OFFICE OF THE                             Terry Mikesh (“Mikesh”), also of the Ohio State Highway
FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for                              Patrol, arrived at the scene to offer assistance. After
                                                                            requesting driver McCrory to exit the vehicle, Workman
                                                                            advised her that she had been driving on a suspended license,
    *
                                                                            and placed her in the back of his patrol car. While checking
     The Honorab le Thomas B . Russell, United States District Judge from   the other occupants’ identifications, Mikesh, with the use of
the Western District of Kentucky, sitting by designation.

                                   1
No. 02-4234               United States v. Montgomery        3    4       United States v. Montgomery                         No. 02-4234

a flashlight, observed a stem, approximately one-inch long,         After searching the vehicle, the troopers asked defendant to
on the driver’s floorboard near the center console. Based         exit the patrol car. Workman, with the intent of checking
upon her training in and experience with the detection of         defendant for any narcotics or paraphernalia, again patted
narcotics, Mikesh was confident from her visual inspection        defendant down and then ordered him to remove his shoes.
that it was marijuana. Rand Simpson Jr. (“Simpson”), the          A bag containing crack cocaine lay in one of defendant’s
right front passenger, reached for the stem, and Mikesh yelled    shoes. According to Workman, defendant was then placed
at him to put it down. Mikesh showed Workman the                  under custodial arrest. Mikesh advised defendant of his
marijuana stem. As Workman testified, he was able to              Miranda rights for the second time. Subsequent field and
observe the stem, which was large and still had vegetation        laboratory tests revealed that the large stem was, in fact,
attached to it, from outside of the vehicle, and he believed it   marijuana.
to be marijuana based upon his narcotics-detection training.
                                                                    Defendant filed a motion to suppress the crack cocaine
  Mikesh advised the occupants that the troopers were going       found in his shoe.1 The district court held that the troopers’
to search the vehicle based upon their observation of             search of defendant’s shoes did not violate the Fourth
marijuana in the vehicle, and that the occupants were in          Amendment because it was a search incident to a lawful
“investigative custody” pending the completion of the search.     arrest. In particular, the court found that the troopers had
Mikesh also advised them of their Miranda rights. Workman         arrested defendant at the time that they placed him in the back
testified that, at that point, no one was under arrest. Rather,   of the patrol car, and that they had probable cause to arrest
according to Workman, they were in “investigative custody”        defendant based upon: 1) the marijuana in plain view;
and received Miranda warnings based upon the troopers’            2) passenger Simpson’s attempt to conceal the marijuana
discovery of marijuana in the vehicle. Workman observed           from the troopers; 3) passenger Richardson’s concealment of
Jamaal Richardson (“Richardson”), the left rear passenger,        something under the armrest; and 4) the apparent nervousness
shove a blue object underneath the back seat’s armrest.           of all of the occupants.
  The troopers ordered the occupants, including defendant,                                      II. Analysis
the right rear passenger, out of the vehicle. Workman and
Mikesh performed “protective pat-downs for weapons,” and,           We review the district court’s legal conclusions in a
with each occupant’s consent, examined the contents of his        suppression hearing de novo, and its factual findings for clear
pockets. The troopers then placed the occupants in another        error. United States v. Smith, 263 F.3d 571, 581-82 (6th Cir.
patrol car, which had subsequently arrived at the scene, to
prevent them from fleeing the scene or from standing on the
dangerous roadside. Upon searching the vehicle’s interior,            1
the troopers recovered the large marijuana stem on the                   In this suppression motion, defendant also challenged the
                                                                  adm issibility of any incriminating statem ents that he m ade to the troopers
driver’s side, marijuana seeds, and a blue digital scale, which   following their seizure of the crack cocaine on the ground that such
Richardson had hidden underneath the backseat armrest and         admis sions violated his Fifth Amendme nt Miranda rights; the district
which had residue in the form of green leafy material and         court denied this challenge. By failing to present any arg ument on it in
white powder on it. Workman identified the white and green        his brief, de fendant has ab andoned this Fifth Amendment issue on appeal.
residue on the scale as cocaine and marijuana, respectively.      See Som mer v. Da vis, 317 F.3d 686, 691 (6th Cir. 2003) (holding that
                                                                  plaintiffs abandoned an issue on appea l by not presenting any argument
                                                                  on it in their briefs).
No. 02-4234               United States v. Montgomery        5    6       United States v. Montgomery                        No. 02-4234

2001); see United States v. Forest, 355 F.3d 942, 952 (6th        warrantless search of defendant’s shoes, from which the crack
Cir. 2004) (holding that whether the facts establish probable     cocaine was seized.2
cause to justify an arrest is a question of law that we review
de novo); United States v. Avery, 137 F.3d 343, 348 (6th Cir.       Under the “search-incident-to-a-lawful-arrest” exception to
1997) (holding that whether the facts establish an                the warrant requirement, a law enforcement officer may
unconstitutional seizure is a question of law that we review de   conduct a full search of an arrestee’s person incident to a
novo). When considering the denial of a suppression motion,       lawful custodial arrest. United States v. Robinson, 414 U.S.
we must view the evidence in the light most favorable to the      218, 234-35 (1973) (explaining that the reasoning behind this
government. United States v. Wellman, Jr., 185 F.3d 651,          exception is the “need to disarm the suspect in order to take
654-55 (6th Cir. 1999). “We may affirm a decision of the          him into custody [and] . . . the need to preserve evidence on
district court if correct for any reason, including one not       his person for later use at trial”). Moreover, as the Supreme
considered below.” United States Postal Serv. v. Nat’l Ass’n      Court held in Rawlings v. Kentucky, 448 U.S. 98, 110-11 n.6
of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir.          (1980), the search-incident-to-a-lawful-arrest rule also permits
2003).                                                            an officer to conduct a full search of an arrestee’s person
                                                                  before he is placed under lawful custodial arrest as long as
   Defendant does not contest that Workman had probable           “the formal arrest follow[s] quickly on the heels of the
cause to stop the vehicle in which defendant was a passenger      challenged search of . . . [his person]” and the fruits of that
for a speeding violation. Defendant also does not dispute that    search are not necessary to sustain probable cause to arrest
the troopers had probable cause to search the vehicle. In         him. C.f. Knowles v. Iowa, 525 U.S. 113, 116-19 (1998)
addition, the troopers were clearly justified in ordering         (holding that the search-incident-to-a-lawful-arrest rule does
defendant out of the vehicle pursuant to either the routine       not apply to an officer’s search of the defendant’s vehicle
traffic stop or the lawful vehicle search. See Maryland v.        where the officer, while subsequently arresting the defendant
Wilson, 519 U.S. 408, 413-14 (1997) (extending the rule in        for drug-law violations based upon that search, never actually
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), that “a          arrested the defendant for the speeding violation, which gave
police officer may as a matter of course order the driver of a
lawfully stopped car to exit his vehicle” to any passengers in
such a vehicle). Based upon the nervousness of all of the             2
occupants, the marijuana stem in plain view, Simpson’s and              There wa s no reasonable concern for officer safety so as to justify,
                                                                  under the Terry doctrine, this search of defendant’s person; indeed,
Richardson’s attempts to conceal the marijuana stem and an        W orkman testified that he conducted the search solely to check defendant
unknown object, respectively, it was reasonable for the           for narco tics or drug paraphernalia. See Yb arra v. Illinois, 444 U.S. 85,
troopers to believe that defendant may have been armed and        93-94 (1979) (cautioning that the Terry doctrine, which created a narrow
dangerous so as to justify patting him down for weapons after     exception to the no rmal d ictates of the Fourth Amendment, does not
he exited the vehicle. See Terry v. Ohio, 392 U.S. 1, 27          perm it a “generalized cursory search for weapons” or “any search
                                                                  whatever for anything but weapons”). Yet, this warrantless evidentiary
(1968). Defendant, however, asserts that the troopers lacked      search may, nevertheless, be valid if it falls within an exception to the
the requisite justification to conduct the subsequent,            warrant requirement. See Un ited States v. H add ix, 239 F.3d 766, 767 n.2
                                                                  (6th Cir. 2001) (summarizing the leading exceptions to the warrant
                                                                  requirement as, among others, “investigatory detentions, warrantless
                                                                  [public] arrests, searche s incident to a valid arrest, seizure of items in
                                                                  plain view, exigent circumstances, consent searches, vehicle searches”)
                                                                  (internal quotation m arks omitted).
No. 02-4234                 United States v. Montgomery           7    8       United States v. Montgomery                         No. 02-4234

the officer the probable cause to arrest the defendant before          a mere investigative detention under the progeny of Terry,3
the search, but, rather, only issued a citation, and reasoning         for purposes of the search-incident-to-a-lawful-arrest
that the rule’s underlying twin rationales of officer safety and       exception.4 See United States v. Avery, 137 F.3d 343, 352
evidence preservation were only minimally present and not
present at all, respectively, in the context of a traffic citation);
Smith v. Ohio, 494 U.S. 541 (1990) (holding that the search-               3
                                                                             Although neither the government nor defendant seem to challenge
incident-to-a-lawful-arrest rule does not apply to a warrantless       the district co urt’s determination that the troopers had arrested defendant
search that provides the probable cause for the subsequent             at the time that they placed him in the back of the patrol car, we have
arrest because one cannot justify the arrest by the search and         some reservations about the accuracy of this determination. It is uncertain
then simultaneously justify the search by the arrest).                 whether the troopers’ ordering defendant out of the vehicle, frisking him,
                                                                       and placing him in the back of a patrol car are circumstances sufficient in
                                                                       themselves to escalate the detention into a custodial arrest given that the
   The district court found that, at the time of the search of         legality of the troopers’ action here does not seem to hinge upon any such
defendant’s shoes, the troopers had seized defendant within            arrest. Rathe r, as discussed above, eve n without arresting defendant, the
the meaning of the Fourth Amendment. A reasonable person               troopers had sufficient justificatio n to order defendant out of the vehicle
would not have felt free to leave the scene based upon the             and to frisk him. B ased upon the lawful vehicle search, the troope rs likely
                                                                       had adequate justification to place defendant in the back of the patrol car
following circumstances: 1) three patrol cars were at the              both for his and the troopers’ safety pending the completion of that
scene; 2) the troopers observed marijuana in plain view in the         search. There is no evidence that the troopers, at the time they placed
vehicle, in which defendant was a passenger; 3) Mikesh                 defendant in the back of the patrol car, had drawn their weapons,
yelled at passenger Simpson to put the marijuana stem down;            handcuffed defendant, or used physical force to place him in the patrol
4) defendant had been ordered out of the vehicle, frisked, and         car. Mo reover, while M ikesh advised defendant of his rights under the
placed in the back of a patrol car; 5) Mikesh read defendant           Miranda doctrine, whose application requires that one be subject to a
                                                                       formal arrest or its de facto equivalent, she simply informed defendant
his Miranda warnings; and 6) the troopers searched the                 that he was in “investigative custody” pending the completion of the
vehicle. See United States v. Butler, 223 F.3d 368, 374 (6th           vehicle search; she never told defendant that he was under arrest at that
Cir. 2000) (“A ‘seizure’ occurs . . . when the police detain an        time. See Stan sbury v. Californ ia, 511 U.S. 318, 322 (1994). To the
individual under circumstances where a reasonable person               extent that he may have conveyed his subjective intent to defendant,
would feel that he or she is not at liberty to leave”); Kaupp v.       W orkm an testified that defendant was no t under arrest at that point. See
                                                                       United States v. Rose, 88 9 F.2 d 14 90, 1 493 (6th Cir. 1989) (holding that
Texas, 538 U.S. 626, 630 (2003) (illustrating circumstances            officers’ subjective intent is relevant to a Fo urth Amendme nt analysis
indicating a seizure as follows: “‘the threatening presence of         only to the extent that they have c onve yed that intent to the confronted
several officers, the display of a weapon by an officer, some          individual). In any event, we need not decide this issue because we find
physical touching of the person of the citizen, or the use of          that, whether the troopers arrested defendant upon placing him in the
language or tone of voice indicating that compliance with the          patrol car or only after they conducted the search of his shoes, the search-
                                                                       incident-to-a-lawful-arrest rule app lies so as to justify that search.
officer’s request might be compelled’”) (citing United States
v. Mendenhall, 446 U.S. 544 (1980)). However, it is unclear                4
                                                                             As Professor Joshua Dressler aptly observed, the Supreme Court has
whether this “seizure” was a full custodial arrest, rather than        yet to apply the search-incident-to-a-lawful-arrest rule to any context
                                                                       other than a full custodial arrest. Dressler argues that the twin rationales
                                                                       underlying this exception–evidence preservation and officer safety–do not
                                                                       app ly or on ly marginally apply in the context of a non-custodial arrest or
                                                                       temporary detention. Understanding Criminal Procedure § 13.02 (2d ed.
                                                                       1997) (reasoning that the context of a custodial arrest poses a far greater
                                                                       danger to the officer than one of temporary detention as, in the latter
No. 02-4234                  United States v. Montgomery             9    10   United States v. Montgomery                  No. 02-4234

(6th Cir. 1997) (noting that a “seizure” for purposes of the              search. Chiefly relying upon United States v. Di Re, 332 U.S.
Fourth Amendment comprises either a Terry investigative                   581 (1948), defendant argues that, while the troopers had
detention requiring “reasonable, articulable suspicion of                 probable cause to arrest the vehicle’s other occupants, they
criminal activity” or an arrest requiring probable cause);                lacked probable cause to arrest defendant because his conduct
compare Kaupp, 538 U.S. at 630 (holding that law                          did not provide them with sufficient individualized suspicion
enforcement’s involuntary transportation of a suspect to a                regarding his involvement in any illegal activity. Rather,
police station for questioning constitutes a de facto arrest              according to defendant, the facts and circumstances available
requiring probable cause), with Houston v. Clark County                   to the troopers establish, at most, that defendant, by virtue of
Sheriff Deputy John Does 1-5, 174 F.3d 809, 814-15 (6th Cir.              being a passenger in the vehicle, was in proximity to the other
1999) (holding that, where police officers reasonably believed            occupants’ drug-related activity.
that a vehicle’s occupants had just been involved in a
shooting, the officers’ ordering the suspects out of the vehicle,           In United States v. Di Re, 332 U.S. 581, 583, 592-94
drawing their weapons on them, frisking and handcuffing                   (1948), the Supreme Court held that, under state law, officers
them, and detaining them in the back of patrol cars did not               lacked probable cause to arrest the defendant, who was
exceed the bounds of a Terry investigative detention) and                 ultimately convicted of knowingly possessing counterfeit
United States v. Bradshaw, 102 F.3d 204, 211-12 (6th Cir.                 gasoline ration coupons. In Di Re, law enforcement officers
1996) (holding that “detention in a police car does not                   approached a vehicle that contained Buttitta (the driver of the
automatically constitute an arrest,” but recognizing that it              vehicle); Reed (an informer who previously had advised the
“may rise to the level of an arrest in some circumstances”).              officers that he was to buy counterfeit gasoline ration coupons
                                                                          from Buttitta); and the defendant (who was sitting next to
  In any event, even if the troopers had not placed defendant             Buttitta). Id. at 583. When the officers, upon approaching the
in full custodial arrest before the search of his person, it is           vehicle, observed that Reed was holding two of these coupons
clear that they did so immediately after that search–after they           – which later proved to be counterfeit – and asked Reed who
discovered crack cocaine in his shoe. Mikesh testified that,              had given him the coupons, Reed inculpated only Buttitta. Id.
after the discovery of that crack cocaine, she informed                    The officers placed the defendant, along with Buttitta and
defendant that he was under arrest and, once again, advised               Reed, under custodial arrest. Id. During a subsequent search
him of his Miranda rights. Workman also testified that                    of the defendant’s person, officers recovered over one
defendant was placed under arrest at that time. Thus,                     hundred counterfeit gasoline ration coupons from his shirt and
regardless of whether the troopers placed defendant in full               underwear. Id.
custodial arrest before or immediately after the evidentiary
search of his person, the search-incident-to-a-lawful-arrest                The Court held that the officers had no probable cause to
rule would validate that search as long as the troopers,                  arrest the defendant for committing, in the officers’ presence,
independent of the crack cocaine seized during that search,               the misdemeanor of knowing possession of counterfeit
had probable cause to arrest defendant at the time of that                coupons. Id. at 592. The Court reasoned that only Reed was
                                                                          visibly in possession of the coupons, and that the officers had
                                                                          no evidence demonstrating the defendant’s possession of any
                                                                          coupons, “unless his presence in the car warranted that
situation, the suspect has less incentive to use a weapon or to destroy   inference.” Id. (rejecting, likewise, the contention that the
evidence, and the officer need not transport the suspect to the police
station).
                                                                          officers had probable cause to arrest the defendant for a
No. 02-4234              United States v. Montgomery       11   12   United States v. Montgomery                  No. 02-4234

felony entailing both possession of the coupons and             recovered $763 from the glove compartment and five plastic
knowledge of their counterfeit nature). The Court then held     bags containing cocaine from behind the back-seat armrest.
that the defendant’s presence in the car was insufficient to    Id. The officers placed all three occupants under arrest when,
imply his participation in the Buttitta-Reed sale and, thus,    upon questioning, none of them offered any information
insufficient to sustain probable cause for any felony           regarding the ownership of the drugs or the money. Id.
conspiracy charge. Id. at 593. The Court reasoned that there    (noting that the other two occupants were eventually released
was no evidence indicating that the defendant was in the        when the defendant, during interrogation, subsequently
vehicle when Buttitta had given the coupons to Reed. Id.        admitted ownership of the contraband and stated that they
The Court further reasoned:                                     knew nothing about it). The defendant was convicted of
                                                                possession and possession with intent to distribute cocaine.
  [The inference] that one who accompanies a criminal to        Id. at 799.
  a crime rendezvous cannot be assumed to be a bystander,
  forceful enough in some circumstances, is farfetched            The Supreme Court noted that, although the officers had
  when the meeting is not secretive or in a suspicious hide-    probable cause to believe that a felony had been committed
  out but in broad daylight, in plain sight of passersby, in    upon recovering the cocaine from the vehicle, the question is
  a public street of a large city, and where the alleged        whether they had probable cause to believe that the defendant
  substantive crime is one which does not necessarily           committed that crime. Id. (looking to state law to determine
  involve any act visibly criminal.                             the substantive crime as well as the law enforcement officers’
                                                                authority to arrest). The Court first explained the probable-
Id. (internal quotation marks omitted, and emphasis added).     cause standard as follows:
As the Court noted, even if the defendant had witnessed the
transfer of the coupons, the counterfeit nature of those          [It is a] practical, nontechnical conception that deals with
coupons would not have been readily apparent to him. Id.          the factual and practical considerations of everyday life
The Court underscored that, where the government informer         on which reasonable and prudent men, not legal
singles out as the guilty party only an individual other than     technicians, act.          Probable cause is a fluid
the defendant, any inference or suspicion arising from the        concept–turning on the assessment of probabilities in
defendant’s presence at the crime scene must disappear. Id.       particular factual contexts–not readily, or even usefully,
at 594.                                                           reduced to a neat set of legal rules. The probable-cause
                                                                  standard is incapable of precise definition or
  However, in Maryland v. Pringle, – U.S. –, 124 S.Ct. 785,       quantification into percentages because it deals with
798 (2003), on facts similar to those present here, the           probabilities and depends upon the totality of the
Supreme Court held that law enforcement officers had              circumstances . . . . [Its substance] is a reasonable ground
probable cause to arrest the defendant. In Pringle, police        for belief of guilt, [which] . . . must be particularized
officers, based upon a speeding violation, had pulled over a      with respect to the person to be searched or seized.
vehicle, in which there were three occupants, one of whom
was the defendant, the front-seat passenger. Id. When the       Id. at 799-800 (internal quotation marks and citations
driver opened up the glove compartment to retrieve the          omitted) (noting that the test is one of objective
vehicle’s registration, the officers observed a large roll of   reasonableness based upon all of the facts leading up to the
cash. Id. Upon a consent search of the vehicle, the officers    search or seizure in question). The Court then found that the
No. 02-4234               United States v. Montgomery       13    14       United States v. Montgomery                         No. 02-4234

officers had probable cause to believe that the defendant had     circumstances within the officer’s knowledge . . . are
committed the crime of possession of a controlled substance.      sufficient to warrant a prudent person , or one of reasonable
Id. at 802. The Court reasoned that the defendant was one of      caution, in believing . . . that the suspect has committed, is
three men riding in the vehicle at 3:00 a.m.; there was a $763    committing, or is about to commit an offense”). The large
roll of cash in the glove compartment directly in front of the    marijuana stem, which was approximately one-inch long and
defendant; there was cocaine behind the back-seat armrest         still had vegetation attached to it, was in plain view on the
that was accessible to all three men; and all three men failed    driver’s floorboard near the center console. Thus, defendant
to offer any information concerning the ownership of the          had both visual and physical access to the marijuana stem.
cocaine or money. Id. at 800. The Court affirmed that “a car      Defendant had been sitting directly next to passenger
passenger . . . will often be engaged in a common enterprise      Richardson when he concealed from the troopers the digital
with the driver, and have the same interest in concealing the     scale, which was visibly covered in drug residue. Therefore,
fruits or the evidence of their wrongdoing.” Id. at 801           defendant had ready physical access to the drug scale.
(factually distinguishing Ybarra v. Illinois,444 U.S. 85, 91      Moreover, based upon Richardson’s perceived need to
(1979), and citing Wyoming v. Houghton, 526 U.S. 295, 304-        conceal it in the first instance, one could reasonably conclude
05 (1999)) (internal quotation marks omitted). The Court          that the drug scale had been in plain view and, thus, that
held that “it was reasonable for the officer to infer a common    defendant had visible access to it as well. Simpson’s and
enterprise among the three men [because] [t]he quantity of the    Richardson’s attempts to conceal the marijuana stem and the
drugs and cash in the car indicated a likelihood of drug          scale from the troopers, respectively, demonstrated a shared
dealing, an enterprise [into] which a dealer would be unlikely    interest in concealing the fruits of their wrong-doing. In
to admit an innocent person with the potential to furnish         addition, the drugs along with the digital scale, covered in
evidence against him.” Id. The Court distinguished Di Re on       drug residue and commonly used in the distribution of drugs,
the ground that, unlike in that case, there was no singling out   indicated a drug-dealing enterprise. As the Supreme Court
of an individual other than the defendant as the guilty           observed, guilty parties would not likely admit an innocent
individual as none of the three men provided any ownership        person into such a criminal enterprise for fear of that person
information concerning the contraband. Id. Thus, the Court        furnishing incriminating evidence against them. Id. at 801.
found that it was “an entirely reasonable inference from the[]    Consequently, it would have been unreasonable to believe
facts that any or all three of the occupants had knowledge of,    that all of the occupants except for defendant were engaged in
and exercised dominion and control over, the cocaine,” and,       a common drug-related enterprise. Unlike Di Re, there was
thus, that “a reasonable officer could conclude that there was    no “singling out” or incrimination of the other three
probable cause to believe that . . . [the defendant] committed    occupants to the exclusion of defendant. Thus, the troopers
the crime of possession of cocaine, either solely or jointly.”    had probable cause to believe that defendant was violating
Id. at 800-01 (emphasis added).                                   various state drug laws–whether singly or jointly. 5 In sum,
   As Pringle teaches, the facts and circumstances within the
troopers’ knowledge here afforded an adequate basis from               5
                                                                        For examp le, the troopers had probable cause to believe that
which reasonably to infer that defendant was engaged in a         defendant knowingly and constructively possessed, whether jointly or
common narcotics-related enterprise with the other occupants      singly, drug paraphernalia– the digital scale– , in violation of O hio Revised
of the vehicle. See Michigan v. De Fillippo, 443 U.S. 31, 37      Code § 2925.14, a fourth degree misdemea nor. See R.C. § 2925.01(K)
                                                                  (providing that “po ssession means having control over a thing or
(1979) (holding that probable cause exists when the “facts and    substance, but may not be inferred solely from mere access to the thing or
No. 02-4234                     United States v. Montgomery              15

under the search-incident-to-a-lawful-arrest rule, the troopers’
warrantless evidentiary search of defendant’s person passes
muster under the Fourth Amendment because the troopers had
probable cause to arrest defendant independent of the search
and because defendant’s lawful custodial arrest either
preceded the search or quickly followed it. See Rawlings, 448
U.S. at 110-11 n.6.
  For the preceding reasons, we AFFIRM the district court’s
denial of defendant’s suppression motion.


substance through ownership or occupation of the premises upon which
the thing or substance is found” ); State v. Kobi, 701 N.E.2d 420, 430
(Ohio Ct. App. 199 7) (ho lding that “possession” under O.R.C. § 2925.01
may be ac tual or constructive; defining constructive possession as an
ability to exercise dominion or control over the items; and holding that
“read ily usable drugs found in very close proximity to a defendant may
constitute circum stantial evidence” of constructive possession of such
drugs); Ohio v. Hilton, No. 21624, 2004 WL 573 838 , at *4 (O hio Ct.
App. March 24, 2004) (holding that possession may be joint, and that
constructive possession may entail knowledge of the presence of the
object). Moreo ver, since the digital scale appeared to contain cocaine
residue, the troopers had probable cause to believe that defendant had
know ingly and constructively possessed, whether jointly or singly,
cocaine in violation of Ohio Revised Code § 2925.11(C)(4)(a), a crime
which is, at a minim um, a fifth degree felony. See State v. Teamer, 696
N.E.2d 1049, 1051 (Ohio 1998) (affirming that O.R.C. § 2925.11
punishes the possession of any amount of a controlled substance without
quantifying that amount, and, thus, affirming a conviction for knowing
possession of cocaine based upon a m etal crack pipe containing cocaine
residue, which was incapable of being weighed). Under Ohio law, the
troopers had authority to arrest defend ant for either or bo th of these
crimes. See Ohio Revised Code § 5503.02 (A) (providing that “any state
highway patro l troop er may arrest, without a warrant, any person, who is
the driver of or a passenger in a ny vehicle operated or standing o n a state
highwa y, whom the . . . trooper has reaso nable cause to believe is guilty
of a felony, under the same circumstances and with the same power that
any peace officer may make such an arrest); Ohio Revised Code
§ 5503.02 (D)(1) (providing that “[s]tate highway patrol troopers have the
same right and power of search and seizure as other p eace officers”); State
v. Humm el, 796 N.E.2d 558, 561 (Ohio Ct. App. 200 3) (noting the
general rule that an officer may not make a warrantless arrest for a
misdemeanor unless the offense was com mitted in the officer’s presence).
