[Cite as State v. Grubb, 186 Ohio App.3d 744, 2010-Ohio-1265.]




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




The STATE OF OHIO,

        APPELLEE,                                                CASE NO. 4-09-32

        v.

GRUBB,                                                           OPINION

        APPELLANT.




                        Appeal from Defiance Municipal Court
                           Trial Court No. CRB 0900239

                      Judgment Reversed and Cause Remanded

                           Date of Decision: March 29, 2010




APPEARANCES:

        David A. Land, for appellee.

        James E. Hitchcock, for appellant.
Case No. 4-09-32


         ROGERS, Judge.

         {¶1} Defendant-appellant, Rachel Grubb, appeals the judgment of the

Defiance Municipal Court overruling her motion to suppress drug paraphernalia

obtained during a search related to a traffic stop. On appeal, Grubb contends that

the trial court erred in overruling her motion to suppress because the search was

unconstitutional pursuant to Arizona v. Gant (2009), 556 U.S. ___, 129 S.Ct. 1710,

173 L.Ed.2d 485. Based upon the following, we reverse the judgment of the trial

court.

         {¶2} In February 2009, Grubb was charged via complaint with one count

of possession of drug paraphernalia in violation of R.C. 2925.14, a misdemeanor

of the fourth degree. The charge stemmed from an incident during which a police

officer pulled over a vehicle driven by Michael Grubb, Grubb’s husband, in which

Grubb was riding, arrested Michael for driving with a suspended license,

proceeded to search Grubb’s purse inside the vehicle, discovered several glass

pipes inside the purse containing burnt residue and the odor of marijuana, and

discovered a small amount of marijuana inside the passenger compartment of the

vehicle.1 Thereafter, Grubb entered a plea of not guilty to the complaint.

         {¶3} In March 2009, Grubb filed a motion to suppress the evidence seized

as a result of the traffic stop, arguing that the search was unconstitutional because


1
 The record also reflects that Michael Grubb was charged with driving under suspension and marijuana
possession.


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the arresting officer’s statement was devoid of any suspicion that Grubb was

armed and dangerous or presented any threat that would justify a search of the

vehicle or her purse.

        {¶4} In April 2009, the trial court held a hearing on the motion to

suppress,2 at which the following testimony was heard.

        {¶5} Deputy Benjamin Moser of the Defiance County Sheriff’s Office

testified that on February 17, 2009, he was patrolling on State Route 2, south of

State Route 249, in Defiance County, when he observed a westbound vehicle

traveling in excess of the posted speed limit; that he conducted a registration check

on the vehicle and discovered that the registered owner’s license was suspended;

that he initiated a stop of the vehicle based on the speeding violation and identified

the registered owner, Michael, as the vehicle’s operator based upon images from

his in-car computer; that Michael’s wife, later identified as Grubb, was seated in

the passenger seat of the vehicle; that he asked Michael to exit the vehicle,

informed him that his license was under suspension, handcuffed him, placed him

under arrest, and seated him in the back of his patrol car; and that he believed he

asked Michael whether there was anything illegal in the vehicle, and he believed

Michael indicated that there was not.




2
 The suppression hearing was a joint hearing concerning both Grubb’s and Michael’s cases, and the trial
court granted only Michael’s motion to suppress the evidence of marijuana discovered in the vehicle.


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       {¶6} Deputy Moser continued that he checked his in-car computer and

discovered that Grubb did not have a driver’s license; that he approached the

vehicle, asked Grubb to exit the passenger seat and stand toward the front of the

vehicle, and Grubb complied; that he observed a purse on the floorboard of the

vehicle, opened it, and discovered several broken smoking pipes and one intact

pipe; that there was residue on the pipes that smelled like marijuana; that Grubb

stated that the pipes did not belong to her, but that the purse belonged to her; that

he placed Grubb in handcuffs and proceeded to search the passenger compartment

of the vehicle; that he discovered a small amount of marijuana under the passenger

seat; that both Michael and Grubb denied ownership of the marijuana and pipes;

and that Grubb was outside the vehicle at the time he searched her purse, and he

had arrested her at the time he searched the remainder of the passenger

compartment of the vehicle.

       {¶7} On cross-examination, Deputy Moser testified that the area in which

he initiated the stop of the Grubbs’ vehicle was rural, but that he could not say

whether it was a high-crime area; that when he initiated the stop, he did not

observe that the Grubbs appeared “to be hiding anything, or moving stuff around

in the car”; that Michael did not resist the pat-down of his person or his arrest and

did not mention anything about a weapon; that he did not find any weapons on

Michael’s person; that it took approximately 15 minutes for him to remove



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Michael from the vehicle, arrest him, and move him into the patrol car; that during

the approximate 15-minute period during which he arrested and secured Michael,

Grubb was sitting in the passenger seat of the vehicle and he did not see her

making any furtive movements; that Grubb questioned why he had asked her to

exit the vehicle, but had no “major attitude”; that Grubb made no unusual

movements or threatening comments; that he did not believe that Grubb was going

to shoot or hurt him; that he did not know whether he had any specific reason to

suspect that she was armed, but that “when [he walks] up to a car [he suspects]

that, you know, anybody could be armed with anything”; that he searched the car

because he “was doing a search incident to arrest. [He] was looking for anything,

you know, weapons, anything illegal, anything that shouldn’t be in the car”; that at

the time he searched the vehicle, he had already placed Michael under arrest, and

it would have been impossible for Michael to reach into the vehicle; and that he

decided to “cut them a break” and not impound the vehicle.

       {¶8} In July 2009, the trial court overruled Grubb’s motion to suppress,

finding that when Deputy Moser removed Grubb from the vehicle, she was not

under arrest, and he proceeded to search the area where she had been seated for

officer-safety purposes; that upon checking her immediate vicinity in the vehicle,

Deputy Moser discovered her purse, which contained smoking pipes with

marijuana residue; that the basic holding of Gant, 556 U.S. ___, 129 S.Ct.1710,



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173 L.Ed.2d 485, was that “[p]olice may search the passenger compartment of a

vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that

the arrestee might access the vehicle at the time of the search, or that the vehicle

contains evidence of the offense of arrest”; that the facts at issue were

distinguished from Gant because Michael was not the sole occupant of the vehicle

and Grubb, not being under arrest initially, would have had access to her area in

the vehicle; that for officer-safety purposes, Deputy Moser was permitted to search

her area with the probability of then returning her to the vehicle to wait for a ride;

and that upon discovering the drug paraphernalia in her purse, Deputy Moser

acquired probable cause to place Grubb under arrest and had reason to search the

vehicle to look for further evidence of her crime, possession of drug paraphernalia.

       {¶9} In August 2009, Grubb withdrew her plea of not guilty and entered a

plea of no contest to “drug offenses,” for which the trial court determined she was

guilty and sentenced her to a 30-day jail term, suspended in its entirety

conditioned on no similar violations, and imposed a six-month driver’s-license

suspension and a $250 fine.       Thereafter, Grubb appealed her conviction and

sentence.

       {¶10} In September 2009, this court dismissed Grubb’s appeal, finding that

the trial court’s judgment entry of conviction was not a final, appealable order

because its statement that Grubb entered a plea of no contest to “drug offenses”



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did not sufficiently state to what offense her plea and conviction related pursuant

to Crim.R. 32(C); State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. Shortly

thereafter, the trial court issued a second judgment entry to reflect that Grubb was

convicted of possession of drug paraphernalia in violation of R.C. 2925.14.

       {¶11} It is from this judgment that Grubb appeals, presenting the following

assignment of error for our review.

       The trial court erred when it overruled the defendant’s motion to
       suppress certain materials found in her husband’s car and in her
       purse. The search clearly violated Arizona v. Gant, [___ U.S. ___,]
       129 S.Ct. 1710, 173 L.Ed.2d 48509.

                                Standard of Review

       {¶12} “Appellate review of a decision on a motion to suppress evidence

presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,

2006-Ohio-601, ¶12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d

1117, 1119. The trial court serves as the trier of fact and is the primary judge of

the credibility of the witnesses and the weight to be given to the evidence

presented. State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when

an appellate court reviews a trial court’s ruling on a motion to suppress, it must

accept the trial court’s findings of facts so long as they are supported by

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-

3665, ¶100, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate




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court must then review the application of the law to the facts de novo. Roberts,

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.

                                Search and Seizure

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

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

seizures. Neither the Fourth Amendment to the United States Constitution nor

Section 14, Article I of the Ohio Constitution explicitly provides that violations of

its provisions against unlawful searches and seizures will result in the suppression

of evidence obtained as a result of those violations, but the United States Supreme

Court has held that the exclusion of evidence is an essential part of the Fourth

Amendment. Mapp v. Ohio (1961), 367 U.S. 643, 649; Weeks v. United States

(1914), 232 U.S. 383, 394. The primary purpose of the exclusionary rule is to

remove the incentive to violate the Fourth Amendment and thereby deter police

from unlawful conduct. State v. Jones (2000), 88 Ohio St.3d 430, 434, overruled

by State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931.

       {¶14} The United States Supreme Court has repeatedly emphasized the

general rule that “ ‘searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well-delineated

exceptions.’ ” Gant, 556 U.S. ___, 129 S.Ct. at 1716, 173 L.Ed.2d 485, quoting



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Katz v. United States (1967), 389 U.S. 347, 357. In order for a law-enforcement

officer to conduct a search of an automobile without first obtaining a warrant, the

officer must typically possess probable cause, which means that “ ‘there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.’ ” State v. Carlson (1995), 102 Ohio App.3d 585, 600, quoting Illinois v.

Gates (1983), 462 U.S. 213, 214. However, even when probable cause is not

present, many exceptions have been established for warrantless searches

conducted under certain circumstances.          See, e.g., exigent-circumstances

exception, United States v. Edwards (1974), 415 U.S. 800; search-incident-to-

arrest exception, Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23

L.Ed.2d 685; New York v. Belton (1981), 453 U.S. 454; automobile exception,

United States v. Ross (1982), 456 U.S. 798; State v. Mesa (1999), 87 Ohio St.3d

105; inventory-search exception, Colorado v. Bertine (1987), 479 U.S. 367, 372;

plain-view exception, Harris v. United States (1968), 390 U.S. 234; “plain feel”

exception, State v. Evans (1993), 67 Ohio St.3d 405, 408; consensual-search

exception, Florida v. Bostick (1991), 501 U.S. 429; “stop and frisk” exception,

Terry v. Ohio (1968), 392 U.S. 1.

      {¶15} 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, Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph two



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of the syllabus; State v. Kessler (1978), 53 Ohio St.2d 204, 207, and that it meets

Fourth Amendment standards of reasonableness. Maumee v. Weisner (1999), 87

Ohio St.3d 295, 297, citing 5 LaFave, Search and Seizure (3d Ed.1996), Section

11.2(b).

                     Automobile Searches Incident to Arrest

       {¶16} Even when probable cause to search an automobile is lacking, it has

long been established that “[w]hen 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,”

including any containers therein. State v. Murrell (2002), 94 Ohio St.3d 489, 764

N.E.2d 986, at syllabus, following New York v. Belton (1981), 453 U.S. 454, 460,

101 S.Ct. 2860, 69 L.Ed.2d 768. See also Gant, 556 U.S. ___, 129 S.Ct. at 1717,

173 L.Ed.2d 485. In Belton, a single law-enforcement officer conducted a traffic

stop of four men in a vehicle traveling in excess of the speed limit. The officer

then discovered that none of the men owned the vehicle, smelled the odor of burnt

marijuana, and observed an envelope on the vehicle floor marked “supergold,” a

term associated with marijuana. Belton at 455-456. The officer discovered that

the envelope contained marijuana, removed all four men from the vehicle, arrested

them for marijuana possession, searched them, and, as the men stood by the side

of the car, searched a jacket located in the passenger compartment and discovered



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cocaine.   Id. at 456.   The holding in Belton was based in large part on the

recognition that “articles inside the relatively narrow compass of the passenger

compartment of an automobile are in fact generally, even if not inevitably, within

‘the area into which an arrestee might reach.’ ” Id. at 460, quoting Chimel, 395

U.S. at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685. See also Gant at 1717. Thus, the

underlying rationales of the exception were officer safety and preservation of

evidence. Gant at 1712; Chimel at 763.

      {¶17} Despite      these   rationales     behind   the   search-incident-to-arrest

exception, many courts have broadly interpreted Belton to permit searches of

automobiles incident to arrest even when there was no possibility that the arrestee

could access her automobile to threaten officer safety or to destroy or conceal

evidence, such as when she was already arrested and secured inside the patrol car.

Gant at 1718; see, e.g., Murrell, 94 Ohio St.3d 489, 764 N.E.2d 986; State v.

Gray, 2d Dist. No. 22688, 2009-Ohio-1411, ¶17 (finding that “an arrestee

handcuffed in the backseat of a squad car changes nothing * * *”); State v. Clancy

(Apr. 19, 2002), 2d Dist. No. 18844, 2002 WL 628124. Compare Murrell at 497-

498 (Moyer, C.J., dissenting) (observing that “[t]he majority acknowledges that

the occupant must first be removed from the automobile and placed under arrest

before the police officer may search the automobile. Therefore, since the occupant




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is already under arrest and separated from the vehicle, the Chimel justifications for

the search, i.e., police officer safety and the protection of evidence, disappear”).

       {¶18} In light of criticism of some courts’ broad application of Belton, 453

U.S. 454, the United States Supreme Court recently revisited the issue of

automobile searches incident to arrest in Gant, specifically addressing situations

where the search is conducted after the scene is “secured.” In Gant, 556 U.S. ___,

129 S.Ct. 1710, 173 L.Ed.2d 485, a defendant was arrested for driving with a

suspended license. After he was arrested, handcuffed, and placed in the back seat

of the locked patrol car, police officers proceeded to search Gant’s vehicle and

discovered illegal drugs inside a jacket in the passenger compartment. Finding

that the goals behind the exception, officer safety and preservation of evidence,

were not served where the scene and vehicle’s sole occupant were already

“secured,” the Supreme Court narrowed the breadth of automobile searches

incident to arrest, as set forth in Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d

768, by requiring that the searches be restricted to the reaching distance of the

passenger compartment of the vehicle when the individual is unsecured, or where

the police have a reasonable belief that evidence of the crime for which the

individual was arrested may be found in the vehicle. Gant at 1718-1719.

       {¶19} Despite its limitation on automobile searches incident to arrest, the

Supreme Court emphasized in Gant that even if a search incident to arrest was not



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justified, the other established exceptions to the warrant requirement may

nevertheless apply depending on the circumstances.        For example, the court

remarked that pursuant to Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct.

3469, an officer may “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.’ ” Gant, 556

U.S. ___, 129 S.Ct. at 1721, 173 L.Ed.2d 485, quoting Long at 1049.

                               Application of Gant

       {¶20} Since its release, a number of Ohio courts have applied Gant,

including the Second Appellate District in State v. Gilbert, 184 Ohio App.3d 642,

2009-Ohio-5528. In Gilbert, a police officer stopped a vehicle containing four

occupants because the driver had committed a traffic violation.         The officer

discovered that the driver’s license had been suspended, arrested her, and removed

her from the vehicle. Thereafter, the officer checked the status of the remaining

three occupants, discovered that a female passenger had an outstanding warrant for

her arrest, and arrested the female passenger and removed her from the vehicle.

The remaining two occupants, including Gilbert, did not have any outstanding

warrants; however, the officer removed them from the vehicle for officer-safety

purposes so that other officers could search the vehicle incident to arrest. An

officer was stationed to monitor the two occupants while the search of the vehicle



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was being conducted by several other officers. A pat-down search of the two

occupants revealed nothing, and they were neither arrested nor handcuffed.

During the search of the vehicle, an officer discovered marijuana seeds in the

passenger compartment. Due to discovery of the seeds, an officer proceeded to

search Gilbert more thoroughly and uncovered several bags of illegal substances

in his shoe.

       {¶21} Thereafter, the Second District reversed Gilbert’s convictions for

drug possession, finding that the search was unlawful. The court found that at the

time the search occurred, multiple police officers were on the scene, and all

vehicle occupants had been removed and were under police control. Thus, the

court concluded, none of the occupants had access to the vehicle’s passenger

compartment. Further, the court observed, there was no indication that the search

was conducted to uncover evidence relevant to either of the crimes for which the

driver and female passenger were arrested. Based upon these findings, the court

concluded that although the search would have been permissible under the

traditional interpretation of Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768,

it was unlawful under the new limitations in Gant, stating as follows:

              It 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


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       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.

Gilbert, 2009-Ohio-5528, at ¶34, quoting Gant, 556 U.S. ___, 129 S.Ct. at

1720, 173 L.Ed.2d 485.

       {¶22} In State v. Canter, 10th Dist. No. 09AP-47, 2009-Ohio-4837, the

Tenth Appellate District also considered Gant. In Canter, a police officer stopped

a vehicle containing two occupants for a traffic violation, arrested the driver for

driving without a valid license, and secured the driver in the patrol car. Thereafter,

the officer ordered the other occupant, Canter, from the vehicle, and, upon his

attempting to exit with a small backpack, ordered Canter to return the backpack to

the vehicle. The officer then searched the backpack and uncovered drugs and drug

paraphernalia. The Tenth District observed that Gant did not provide guidance for

situations where the driver of the vehicle was arrested and secured, but the vehicle

contained other occupants who were not arrested and secured. The court found

that since this type of situation did not yet “fit into a well-defined, clearly

delineated exception, Katz tells us that the search was per se unreasonable until

another well-defined, well-delineated exception can be found.” Canter, 2009-

Ohio-4837, at ¶6, citing Katz, 389 U.S. 347.         Nevertheless, in this specific

situation, the court concluded that the search did fit into another exception—the



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automobile exception—because the officers conducting the stop smelled the odor

of marijuana emanating from the vehicle, and that due to the odor, the officers had

probable cause to search for evidence of drug abuse. Canter, 2009-Ohio-4837, at

¶7-8. We also note that prior to conducting the search, the police had already

determined that they were going to impound the vehicle. Canter, 2009-Ohio-4837,

at ¶3.

                                Assignment of Error

         {¶23} In her sole assignment of error, Grubb contends that the trial court

erred in overruling her motion to suppress evidence based on the alleged

unconstitutionality of the search pursuant to Gant, 556 U.S. ___, 129 S.Ct. 1710,

173 L.Ed.2d 485. Specifically, Grubb argues that the search of her purse and the

passenger compartment of the vehicle was not justified by either the interests of

officer safety or preservation of evidence. We agree.

         {¶24} The state argues that the case sub judice is distinguishable from

Gilbert, because multiple police officers were present at the stop in Gilbert, as

opposed to the sole police officer present during the stop of the Grubbs; because

receiving backup assistance would have been difficult given the rural area; because

Grubb was close enough to Deputy Moser to pose a threat to him; because she had

not been restrained and was not being watched by a separate law-enforcement

officer, allowing her access to the vehicle; and because this situation was more



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analogous to Belton than Gant because Belton involved one officer and four

unsecured arrestees under suspicion of a drug offense, whereas Gant involved

several officers and one secured arrestee with a license-suspension offense.

       {¶25} This situation is similar to Gant in that Michael’s arrest was for a

license-suspension offense, and not for a drug offense; thus, the rationale that drug

offenders are often armed was inapplicable as a justification for this search.

Additionally, although the Grubbs’ vehicle contained two occupants, more than

the single occupant in Gant, this was also far fewer than the four unsecured

arrestees involved in Belton.

       {¶26} Here, Deputy Moser candidly testified that he could not say whether

the rural area where he stopped the Grubbs was a high-crime area; that he did not

observe the Grubbs making any furtive movements when he initiated the stop; that

he found no indication that Michael had a weapon after conducting a pat-down;

that at the time he searched Grubb’s purse, Michael was arrested, handcuffed, and

locked in the patrol car; and that at that point, it would not have been possible for

Michael to reach for a weapon in the vehicle. Deputy Moser offered no testimony

that he believed that evidence of Michael’s offense of driving under suspension

could be found in the vehicle, nor is any such evidence apparent from the record.

Thus, under the rule of Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485, we




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cannot find that the search was lawful pursuant to the search-incident-to-arrest

exception to the general-warrant requirement.

      {¶27} As the search-incident-to-arrest exception is inapplicable here, we

must move on to determine whether another exception to the warrant requirement

was present and justified the search of Grubb’s purse and the passenger

compartment.    Deputy Moser testified that during the approximate 15-minute

period during which he arrested and secured Michael, he did not see Grubb

making any furtive movements; that Grubb questioned why he asked her to exit

the vehicle, but had no “major attitude”; that Grubb made no unusual movements

or threatening comments; that he did not believe that Grubb was going to shoot or

hurt him; that he did not know whether he had any specific reason to suspect that

she was armed, but that “when [he walks] up to a car [he suspects] that, you know,

anybody could be armed with anything”; and that he searched the car because he

“was doing a search incident to arrest. [He] was looking for anything, you know,

weapons, anything illegal, anything that shouldn’t be in the car.” We cannot find,

based on this testimony, that Deputy Moser possessed reasonable suspicion that

Grubb was “dangerous” and might access the vehicle to retrieve a weapon. See

Gant, 556 U.S. ___, 129 S.Ct. at 1721, 173 L.Ed.2d 485; Long, 463 U.S. at 1049,

103 S.Ct. 3469. Compare Arizona v. Johnson (2009), 129 S.Ct. 781 (finding that

an officer’s pat-down of a vehicle’s passenger did not violate Fourth Amendment



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constraints where the traffic stop was executed in a neighborhood associated with

gang activity; where the officer testified that the defendant’s behavior and

clothing, namely a bandana in a local gang color and possession of a police

scanner, caused her to question his gang affiliation; where the officer learned upon

questioning the defendant that he had served time in prison and was from a town

associated with gang activity; and where the officer testified that all of the

foregoing factors caused her to suspect that the defendant possessed a weapon).

Finally, as Deputy Moser testified that he had decided not to impound the vehicle,

we cannot find that the search would have been justified under the inventory

exception to the warrant requirement. The state has not argued that any other

exception to the warrant requirement was applicable in this situation, nor is any

apparent from the record. Thus, we find that the search of Grubb’s purse and

subsequent search of the passenger compartment was unreasonable and that the

trial court erred in overruling her motion to suppress.

       {¶28} Accordingly, we sustain Grubb’s assignment of error.

       {¶29} Having found error prejudicial to the appellant herein, in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                                Judgment reversed

                                                               and cause remanded



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       PRESTON, J., concurs.

       SHAW, J., concurs in judgment only.

                               __________________

       SHAW, J., concurring in judgment only.

       {¶30} I do not concur in the portions of the majority opinion applying by

analogy the Second District Court of Appeals decision in Gilbert to the present

case. On the contrary, I believe that the number of police officers involved in the

original stop and arrest is a crucial factor in these cases. In this case, we have a

single police officer with two individuals in a stopped vehicle in a remote location

at 2:00 a.m. The driver of the stopped vehicle has been removed from the vehicle,

arrested, and placed in the cruiser. The female passenger remains alone and

unchecked in the stopped vehicle for several minutes while the officer processes

the driver.

       {¶31} The driver has informed the police officer that the female passenger

does not have a driver’s license. As a result, the officer had to necessarily make a

decision about whether to impound the vehicle and/or transport the passenger

somewhere, or leave both car and passenger by the side of the road at the remote

location at 2:00 a.m. Having secured the driver, the officer surely had the right to

approach the passenger to verify her identity, her license status, and her ability to

obtain separate transportation apart from the stopped vehicle or the police cruiser.



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         {¶32} It is significant to me that the officer at this point would not know

what the passenger’s reaction would be to the fact that the defendant has been

arrested and that she will not be permitted to drive the car anywhere else. If the

officer intended to transport the passenger in his cruiser, the cases cited by the

majority would clearly support the officer’s right to search her purse first.

However, even under the limited testimony presented in this case, it is my view

that a prudent police officer would be justified in checking the passenger's purse

for his own safety when approaching the passenger in order to make any of the

foregoing decisions. And in any event, in deciding whether to impound the vehicle

or merely secure it to be left on the side of the road, some examination of the

vehicle could be in order for the same reason.

         {¶33} The only reason that I concur in the judgment reached in this case,

despite the foregoing reservations, is that in this rather unique instance, none of

these circumstances are testified to or otherwise explained in the record. On the

contrary, the officer in this case specifically testified that he was not concerned for

his safety at any time, that he had decided not to impound the vehicle, and we do

not know from the record whether the passenger was transported by the police

officer or left with the car at the scene of the stop - or whether the officer even

contemplated making any of these decisions in conjunction with his search of the

purse.



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Case No. 4-09-32


        {¶34} For these reasons, I concur in the judgment reached in this particular

case.

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