[Cite as State v. Murphy, 2014-Ohio-5002.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 13-14-13

        v.

JENNIFER L. MURPHY,                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 13-CR-0159

                                     Judgment Affirmed

                         Date of Decision: November 10, 2014




APPEARANCES:

        Kent D. Nord for Appellant

        Angela M. Boes for Appellee
Case No. 13-14-13


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant, Jennifer L. Murphy (“Murphy”), brings this

appeal from the judgment of the Court of Common Pleas in Seneca County, Ohio,

denying her Motion to Suppress and Exclude (“motion to suppress”), finding her

guilty of possession of cocaine, aggravated possession of drugs, permitting drug

abuse, and endangering children, and sentencing her to a total of twenty months in

the Ohio Department of Rehabilitation and Correction, upon her entering a plea of

no contest to those charges. For the reasons that follow, we affirm the trial court’s

judgment.

       {¶2} All facts relevant to this appeal are undisputed pursuant to Stipulations

filed by the parties in the trial court. On August 12, 2013, a search warrant was

issued for Murphy’s residence, and “any persons, cell phones, vehicles on the

property and vehicles registered to persons or under the control of persons found

inside the residence at the time the warrant is executed.” (R. at 33, Stipulations,

Ex. 1.) Among other things, the warrant authorized the executing officers to

search for “[a]ny illegally possessed drugs or controlled substances,” “drug

paraphernalia,” “money, money obtained by drug sales, records of drug sales,

items used to prepare drugs for sale or shipment, container, safes,” and “any other

items or instrumentalities used to facilitate drug use, drug trafficking or the crime

under investigation.” (Id.) The trial court summarized the events surrounding the

execution of the search warrant as follows:
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      Once entrance was gained into the apartment, officers found a
      female (Jennifer Murphy) lying on the living room couch with a
      child * * * and another child * * * lying in a seat on the living room
      floor. As they continued on through the residence, officers
      confronted another female (Jillian Murphy) in a Northeast bedroom.
      At that time, the officers secured all of the adults found inside the
      apartment.

      After the residence was secured, the officers entered the residence
      pursuant to the search warrant and identified the adult females as
      Jennifer Lynn Murphy and Jillian Nicole Murphy. They also
      identified the children * * *. The officers explained who they were,
      why they were at the apartment, and the authority they had to be
      there. As Detective Boyer walked through the apartment, the
      defendant indicated to several officers including Detective Boyer
      that she needed to go to the bathroom really bad. Detective Boyer
      advised the defendant that she needed to wait.

      Upon Detective Boyer’s request, officers searched the bathroom area
      for contraband and found nothing. Once the bathroom area was
      searched, detective Boyer allowed Jennifer to go to the bathroom but
      explained that she needed to be searched prior to entering the
      bathroom. After failed attempts to make contact with a female
      officer and upon asking Lieutenant Aaron Russell, Lt. Russell agreed
      to assist by searching the defendant and the other adult female.
      While Lt. Russell was removing the handcuffs from the defendant he
      asked numerous times if the defendant had anything on her person
      and she said no. Detective Boyer briefly left the apartment.

      Lieutenant Russell’s supplementary report states that Detective
      Boyer attempted to locate a female officer or deputy [but he] was
      unable to do so. Lieutenant Russell removed the defendant’s
      handcuffs and inquired if she had any drugs or anything else on her
      that should concern him. She stated that she did not. Lt. Russell
      conducted a visual inspection of her pants and found that she had no
      pockets and nothing was observed in her waist band. As he and the
      defendant began to walk towards the bedroom the defendant placed
      her right hand in the left side of her bra and Lieutenant Russell heard
      cellophane crinkling. Lt. Russell grabbed the defendant’s wrist and
      told her to stop moving as other officers secured her hands behind
      her back. He asked the defendant what was in the left side of her bra
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Case No. 13-14-13


       and she stated nothing. Lieutenant Russell grabbed the elastic band
       at the bottom of her bra on her left flank and pulled the bra away
       from her body. In doing so, two items fell from the defendant’s bra
       through her shirt and onto the floor.

(R. at 34, J. Entry at 2-3, Apr. 8, 2014.) The items were identified as containing

US currency, a baggie of white powder, and a baggie of unknown blue pills. (R. at

33, Stipulations, Ex. 5, 6.)

       {¶3} Based on the results of the search and additional evidence obtained by

the police, Murphy was arrested and charged with four counts: (I) possession of

cocaine, (II) aggravated possession of drugs, (III) permitting drug abuse, and (IV)

endangering children.      On February 24, 2014, Murphy filed her motion to

suppress, requesting suppression of evidence found on her person during the

search, as well as testimony of all police officers and agents of the State of Ohio

and “all tangible evidence and test results procured by all said officers.” (R. at 23,

Mot. Suppress.) In the alternative, Murphy asked for a dismissal of the charges

contained in counts I and II of the Indictment. As the basis for her suppression

motion, Murphy alleged violations of the Ohio Constitution, Article 1, Section 14,

as well as violations of the Fourth and Fourteenth Amendments to the U.S.

Constitution, which protect people from unreasonable searches and seizures. She

additionally alleged a violation of R.C. 2933.32, which is entitled “Conduct of

body cavity search or strip search; conditions; methods; reports; offense.” Under

this provision, Murphy claimed a violation of law by the police officers, which she


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claimed “should require the exclusion of the fruits of [this] illegal action.” (R. at

23 at 4.)

          {¶4} During the scheduled hearing on the motion, the parties agreed to

stipulate to the facts and agreed that the matter would be decided on the pleadings.

The parties filed Stipulations on April 3, 2014, and the trial court issued its

Judgment Entry on April 8, 2014, denying Murphy’s motion to suppress.

Following the trial court’s denial of the motion to suppress, Murphy entered a plea

of no contest with consent to a finding of guilty. Subsequently, the trial court

found Murphy guilty of all counts and sentenced her to a total of twenty months in

prison.

          {¶5} Murphy now appeals the trial court’s denial of her motion to suppress

raising two assignments of error for our review.

                            ASSIGNMENT OF ERROR I

          The trial court erred when it denied Appellant’s Motion to
          Suppress and Exclude the search of Appellant’s person in
          violation of Article I, Section 14 of the Ohio Constitution, the
          Fourth Amendment to the United States Constitution and 14th
          Amendments [sic] to the United States Constitution, and under
          Ohio Revised Code Section 2933.32.

                           ASSIGNMENT OF ERROR II

          The trial court erred when it ruled that the search of Appellant
          was not a strip search as defined by Ohio Revised Code Section
          2933.32.




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       {¶6} An appellate review of the trial court’s decision on a motion to

suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio

App.3d 46, 51, 735 N.E.2d 953 (3d Dist.1999). We will accept the trial court’s

factual findings if they are supported by competent, credible evidence because the

“evaluation of evidence and the credibility of witnesses” at the suppression

hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582

N.E.2d 972 (1992); Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio App.3d

at 51. But we must independently determine, without deference to the trial court,

whether these factual findings satisfy the legal standard as a matter of law because

“the application of the law to the trial court’s findings of fact is subject to a de

novo standard of review.” Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio

App.3d at 52.

       {¶7} Because this case does not involve any disputed facts, the only

question before us is whether the trial court properly applied the law. We review

this issue de novo and we start by addressing the second assignment of error.

                          Second Assignment of Error—
                         Strip Search under R.C. 2933.32

       {¶8} In the second assignment of error Murphy asserts that Lieutenant

Russell’s act of grabbing the elastic band at the bottom of her bra and pulling it




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away from her body constituted a strip search as defined in R.C. 2933.32. This

statute states, in relevant parts:

        (A) As used in this section:

        ***

        (2) “Strip search” means an inspection of the genitalia, buttocks,
        breasts, or undergarments of a person that is preceded by the
        removal or rearrangement of some or all of the person’s clothing
        that directly covers the person’s genitalia, buttocks, breasts, or
        undergarments and that is conducted visually, manually, by means of
        any instrument, apparatus, or object, or in any other manner while
        the person is detained or arrested for the alleged commission of a
        misdemeanor or traffic offense.1 * * *

(Emphasis added.) R.C. 2933.32.

        {¶9} The language of the statute cannot be construed to apply to Murphy’s

situation so as to find that a strip search occurred. It is clear from the stipulated

facts that no inspection of Murphy’s breasts, undergarments, or other body parts

listed in the statute occurred after Lieutenant Russell had rearranged the elastic

band at the bottom of her bra and pulled it away from her body. Therefore, there

is no statutorily proscribed “inspection of the genitalia, buttocks, breasts, or

undergarments of a person that is preceded by the removal or rearrangement of

some or all of the person’s clothing.” (Emphasis added.) R.C. 2933.32(A)(2).




1
  We note that under its express language the statute appears to apply “while the person is detained or
arrested for the alleged commission of a misdemeanor or traffic offense.” (Emphasis added.) R.C.
2933.32. Murphy did not allege that she was being detained for the alleged commission of a misdemeanor
or a traffic offense, and the subsequent charges of drug possession were felonies.

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       {¶10} Therefore, the trial court did not err in finding that no strip search, as

defined in R.C. 2933.32, had occurred in this case. The second assignment of

error is overruled.

            First Assignment of Error—Denial of Motion to Suppress

       {¶11} Murphy argues that the search performed by Lieutenant Russell was

illegal, resulting in violation of the Ohio and the U.S. Constitutions and therefore,

its results should be suppressed. Here, she relies on further subsections of R.C.

2933.32, which prohibit strip searches “except [as] authorized therein.” See State

v. Wesley, 5th Dist. Stark No. 1999CA00226, 2000 WL 329938, *3 (Mar. 27,

2000). Those subsections of R.C. 2933.32 state:

       (B)(1) Except as authorized by this division, no law enforcement
       officer, other employee of a law enforcement agency, physician, or
       registered nurse or licensed practical nurse shall conduct or cause to
       be conducted a body cavity search or a strip search.

       ***

       (6) A body cavity search or strip search shall be conducted by a
       person or persons who are of the same sex as the person who is being
       searched and the search shall be conducted in a manner and in a
       location that permits only the person or persons who are physically
       conducting the search and the person who is being searched to
       observe the search.

(Emphasis added.) R.C. 2933.32.

       {¶12} Murphy argues that a strip search performed by Lieutenant Russell,

who was a person of opposite gender, and in a public area, violated R.C.

2933.32(B)(6) and as such, resulted in unreasonable search and seizure, in
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Case No. 13-14-13


violation of the Ohio and the U.S. Constitutions. Because we already found that

no strip search occurred, the premise of Murphy’s argument in the first assignment

of error fails.

       {¶13} Furthermore, Ohio law does not mandate suppression of the evidence

for violation of state law only. State v. Wurth, 3d Dist. Putnam No. 12-05-17,

2006-Ohio-608, ¶ 7. The Ohio Supreme Court has held that “the exclusionary rule

will not ordinarily be applied to evidence which is the product of police conduct

violative of state law but not violative of constitutional rights.” City of Kettering

v. Hollen, 64 Ohio St.2d 232, 235, 416 N.E.2d 598 (1980). “Only searches that

are unreasonable in a constitutional sense mandate the suppression of evidence.”

State v. Klemm, 41 Ohio App.3d 382, 383, 536 N.E.2d 14 (1st Dist.1987).

Therefore, in Wesley, the Fifth District Court of Appeals found a violation of R.C.

2933.32(B)(6), but then held that

       this violation was statutory in nature and not constitutional, and
       therefore, we find the exclusionary rule inapplicable. We reached a
       similar conclusion in State v. Rucker (Mar. 20, 1995), Stark App.
       No.1994 CA 00224, unreported. In Rucker, we stated:

       Although R.C. 2933.32 was violated, suppression of evidence is
       not among the remedies provided within the statute. The
       exclusionary rule is invoked only for violations of constitutional
       nature and will not be applied to statutory violations falling short
       of constitutional violations, absent a legislative mandate
       requiring the application of the exclusionary rule. City of
       Kettering v. Hollen (1980), 64 Ohio St.2d 232, 234-235, 416
       N.E.2d 598.Id. at 2.

2000 WL 329938, at *4-5 (Mar. 27, 2000).
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        {¶14} There is no legislative mandate requiring the application of the

exclusionary rule for a violation of R.C. 2933.32(B)(6). The remedies provided

for a violation of this section of the Revised Code are spelled out as follows:

        (D)(3) If a person is subjected to a body cavity search or strip search
        in violation of this section, any person may commence a civil action
        to recover compensatory damages for any injury, death, or loss to
        person or property or any indignity arising from the violation. In the
        civil action, the court may award punitive damages to the plaintiffs if
        they prevail in the action, and it may award reasonable attorney’s
        fees to the parties who prevail in the action.

        ***

        (E)(1) Whoever violates division (B) of this section is guilty of
        conducting an unauthorized search, a misdemeanor of the first
        degree.

R.C. 2933.32. As the statutory language explains, violation of R.C. 2933.32, if

established, allows the person subjected to a strip search to “commence a civil

action.” R.C. 2933.32(D)(3). The statute does not warrant suppression.

        {¶15} In sum, no strip search was conducted on Murphy and she did not

establish a violation of state law that would result in the search being

unconstitutional so as to require the application of the exclusionary rule. Murphy

does not allege that any constitutional violations otherwise occurred2 when

Lieutenant Russell grabbed the elastic band at the bottom of her bra and pulled it

away from her body. The first assignment of error is thus overruled.
2
 Although in the trial court, Murphy raised an issue of probable cause for “this search of her person in a
non-private area of her residence” (R. at 23, Mot. Suppress at 3), she does not assign an error to the trial
court’s finding that in general, the search of her person was within the permissible scope of the search
warrant (see R. at 34, J. Entry at 4, Apr.8, 2014).

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                                  Conclusion

       {¶16} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Court of Common Pleas in Seneca County, Ohio is

therefore affirmed.

                                                           Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jlr




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