[Cite as State v. Morton, 2014-Ohio-1434.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 100267



                                    STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  DARIUS MORTON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                Case No. CR-13-571985

        BEFORE:           Boyle, A.J., S. Gallagher, J., and Rocco, J.

        RELEASED AND JOURNALIZED: April 3, 2014
[Cite as State v. Morton, 2014-Ohio-1434.]
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road
#613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Shannon Millard
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Morton, 2014-Ohio-1434.]
MARY J. BOYLE, A.J.:

        {¶1} Appellant, Darius Morton, appeals his conviction for possession of

a controlled substance for which he was sentenced to one year of community

control.       Appellant claims his attorney was constitutionally deficient,

mandating a new trial. After a thorough review of the record and law, we

disagree and affirm his conviction.

                   Procedural History and Factual Background

        {¶2} Appellant was charged with one count of drug possession in

violation of R.C. 2925.11(A). He pled not guilty, and the case proceeded to a

jury trial on June 17, 2013, where the following facts were presented.

        {¶3} Appellant was driving in Cleveland, Ohio, with two passengers in

the car. Officer Aaron Reese of the Cleveland Police Department observed

appellant commit a minor traffic violation when appellant turned without

signaling. Officer Reese instigated a stop of appellant’s vehicle. Appellant

provided his driver’s license and, upon entering information into the police

computer system, Officer Reese learned that appellant had a suspended

driver’s license.         Officer Reese indicated that driving with a suspended

license was a violation of Cleveland Codified Ordinances 435.07, a

first-degree misdemeanor.                Officer Reese then asked appellant to exit the

vehicle, and appellant was placed under arrest.
[Cite as State v. Morton, 2014-Ohio-1434.]
        {¶4} A subsequent search of appellant’s person revealed a single pill in

a plastic bag. Based on the size, color, and markings on the pill, Officer Reese

believed it to be methylenedioxy-methamphetamine (“MDMA”), better known

as ecstacy.         Officer Reese indicated the search he conducted was done

because appellant was under arrest.

        {¶5} A technician working at the Cuyahoga County Regional Forensic

Science Laboratory, Nicole Pride-Allen, testified that the pill was not, in fact,

MDMA. It was actually benzothiophenylcyclohexyl (“BTCP”), a schedule one

controlled substance that is one of a number of different drugs sold as ecstacy.

        {¶6} At the close of trial, the jury found appellant guilty of one count of

drug possession. The trial court ordered a presentence investigation report

at appellant’s request and set sentencing for July 17, 2013. On that date, the

court heard from appellant, his attorney, and the state.          The court then

ordered appellant to be placed on community control for one year and

suspended his driver’s license for six months. Appellant then appealed to

this court assigning one error:

        [Appellant] was deprived effective assistance of counsel, by trial
        counsel not objecting to the search of his person, absent probable
        cause, thereby preventing the exclusion of the fruit of the illegal
        search.
[Cite as State v. Morton, 2014-Ohio-1434.]
                             Ineffective Assistance of Counsel

        {¶7} Appellant claims that trial counsel failed him by not filing a

motion to suppress the evidence discovered during an illegal search of his

person.      This court has recently set forth the appropriate standard in a

similar case:

               To establish ineffective assistance of counsel, a defendant
        must show that counsel’s representation “fell below an objective
        standard of reasonableness,” and “there is a reasonable
        probability that, but for counsel’s unprofessional errors, the result
        of the proceeding would have been different.” State v. Sanders,
        94 Ohio St.3d 150, 151, 2002-Ohio-350, 761 N.E.2d 18 (2002),
        citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.
        2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a
        probability sufficient to undermine confidence in the outcome.”
        State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989),
        quoting Strickland at 694.

State v. Johnson, 8th Dist. Cuyahoga No. 99656, 2013-Ohio-5430, ¶ 8 (dealing

with the failure to file a suppression motion for a witness identification that

did not comply with R.C. 2933.83).

        {¶8} Here, appellant argues that a suppression motion would have

undoubtedly changed the outcome of the case because the search incident to

his arrest was improper.

        {¶9}      The Fourth Amendment generally prohibits unreasonable

searches and seizures with limited exceptions. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968).              Searches conducted outside these

exceptions and without the benefit of a warrant are per se unreasonable.
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The

United States and Ohio Supreme Courts have recognized that a motor vehicle

stop based on the observance of a traffic violation is reasonable even where

the officer performing the stop possesses an ulterior motive.        Whren v.

United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Dayton v.

Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, 665 N.E.2d 1091.

      {¶10} These holdings mean the present case is distinguishable from

others where this court has found ineffective assistance in failing to file a

suppression motion based on a search that exceeded the lawful parameters of

a stop.      See, e.g., State v. Jenkins, 8th Dist. Cuyahoga No. 91100,

2009-Ohio-235.      Here, the stop was based on the observance of a traffic

violation.      It was then immediately discovered that appellant’s driver’s

license had been suspended. Appellant was lawfully placed under arrested

and searched incident to that arrest.

      {¶11} This type of exception to the warrant requirement “allows officers

to conduct a search that includes an arrestee’s person and the area within the

arrestee’s immediate control. This exception ‘derives from interests in officer

safety and evidence preservation that are typically implicated in arrest

situations.’”     (Citations omitted.)   State v. Smith, 124 Ohio St.3d 163,

2009-Ohio-6426, 920 N.E.2d 949, ¶ 11. Officer Reese found the pill while
searching appellant’s person after placing him under arrest.            This fits

squarely within the search-incident-to-arrest exception.

      {¶12}   Contrary    to   appellant’s   arguments,    the   stop   was    not

impermissibly prolonged, and the search did not exceed the parameters of

permissible actions of the state in subjecting a person to a search. This case

is very similar to Erickson, and it dictates that any suppression motion would

not have been successful because the stop was reasonable. The pill found as

a result of the search incident to a lawful arrest was not unlawfully obtained

by the police, and trial counsel was not ineffective for failing to file a futile

motion.

      {¶13} Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas 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.
MARY J. BOYLE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
[Cite as State v. Morton, 2014-Ohio-1434.]
