[Cite as State v. Whipple, 2017-Ohio-1094.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellant,                     :      CASE NO. CA2016-06-036

                                                 :             OPINION
    - vs -                                                      3/27/2017
                                                 :

SHELDON A. WHIPPLE,                              :

        Defendant-Appellee.                      :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2016-CR-00067



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellant

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellee



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a decision of the Clermont

County Court of Common Pleas granting the motion to suppress evidence filed by defendant-

appellee, Sheldon A. Whipple. For the reasons that follow, we reverse the decision of the

trial court.

        {¶ 2} On October 23, 2015, Greg Johnson, a loss prevention supervisor at the Meijer
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store in Miami Township, Clermont County, observed a store patron, later identified as

Whipple, wearing a green backpack, select a belt valued at $14.99 from the shelf, place it

around his waist, and then, proceed to exit the store without paying for the item. Johnson

reported the theft to police while he continued observing Whipple, who walked to the middle

of the parking lot to talk to another male at a cart corral. Miami Township Police Officer

Matthew Davila responded to the theft. Police dispatch informed him that the suspect was a

white male with a green backpack who exited the store and was standing next to a cart corral

speaking with another male. When Officer Davila entered the parking lot in his police cruiser,

he observed Johnson and the white male wearing a green backpack.

       {¶ 3} Officer Davila parked near the cart corral, exited his cruiser and made contact

with Whipple. Officer Davila placed Whipple in handcuffs and advised him of his rights.

During this time, Johnson approached Officer Davila and identified Whipple as the suspect.

Johnson further informed Officer Davila that Whipple was currently wearing the stolen belt.

Therefore, Officer Davila lifted up Whipple's shirt and observed the belt around Whipple's

waist with the price tags still attached. Officer Davila removed the belt and returned it to

Johnson, and then, proceeded to search Whipple and his green backpack, for his and

Whipple's safety as well as to see if there was any other stolen merchandise on Whipple's

person.

       {¶ 4} Officer Davila found a cigarette pack inside the green backpack that contained

a folded piece of aluminum foil with a white powdery substance inside of the foil. Based on

his training and experience, Officer Davila believed this substance to be some kind of

narcotic.

       {¶ 5} Based on these events, the Clermont County Grand Jury returned a two-count

indictment charging Whipple with theft and aggravated possession of drugs. Whipple filed a

motion to suppress evidence challenging the warrantless search conducted by Officer Davila
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of Whipple's person and property based on the United States and Ohio Constitutions. After a

hearing on the matter, the trial court issued a decision finding Officer Davila had probable

cause to arrest Whipple which supported the search of Whipple's person. However, the trial

court suppressed evidence found as a result of Officer Davila's search of Whipple's green

backpack because it was not within his immediate control, and thus, did not fall within the

search incident to an arrest exception.

         {¶ 6} The state appeals the decision of the trial court raising two assignments of

error.

         {¶ 7} Assignment of Error No. 1:

         {¶ 8} THE TRIAL COURT DID NOT RELY ON COMPETENT, CREDIBLE

EVIDENCE TO SUPPORT ITS DECISION AND AS SUCH, IT ERRED IN SUPPRESSING

THE EVIDENCE.

         {¶ 9} Assignment of Error No. 2:

         {¶ 10} THE TRIAL COURT INCORRECTLY APPLIED THE FOURTH AMENDMENT,

ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION, AND ARIZONA V. GANT, 556

U.S. 332, 129 S.CT. 1710 (2009), TO THE FACTS OF THIS CASE AND THEREFORE

ERRED IN SUPPRESSING THE EVIDENCE.

         {¶ 11} We first address the state's second assignment of error, in which the state

contends the trial court improperly granted Whipple's motion to suppress the evidence found

inside the green backpack. The state argues the warrantless search of the backpack was a

valid search incident to Whipple's arrest because Whipple had the backpack under his

immediate control at the time of the arrest. Whipple concedes that he was in possession of

the backpack at the time Officer Davila approached him. Whipple further concedes that the

backpack was within his immediate control at such time. However, Whipple asserts the trial

court properly suppressed the evidence because he was handcuffed during the search and
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the backpack "was at least a few feet away from him" during the arrest. Whipple further

argues that if the search was permissible, Officer Davila exceeded the scope allowed under

the exception by continuing to search the cigarette pack found within the backpack because

the search of the backpack revealed the absence of any weapons or additional stolen

merchandise.

        {¶ 12} Therefore, the questions presented are: (1) at what point must the item

searched incident to an arrest be within the arrestee's immediate control, and (2) if the

exception is applicable, what is the permissible scope of the search.

        {¶ 13} When considering a motion to suppress, the trial court assumes the role of the

trier of fact; therefore, it is in the best position to resolve factual questions and evaluate the

credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366 (1992). Accordingly, when

reviewing a trial court's decision on a motion to suppress, we accept the trial court's findings

of fact if they are supported by competent, credible evidence. State v. Henderson, 12th Dist.

Warren Nos. CA2002-08-075 and CA2002-08-076, 2003-Ohio-1617, ¶ 10. However, we

review de novo whether the trial court's conclusions of law – based on those findings of fact –

are correct. Id.

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

against unreasonable searches and seizures.1                     It is well-established that warrantless

searches are per se unreasonable subject to certain exceptions. Smith at ¶ 10. In this case,

the state relies on the search incident to arrest exception, which permits officers to conduct a

search of an arrestee's person and the area within the arrestee's immediate control. Id. at ¶



1. We note the language of Section 14, Article I of the Ohio Constitution is virtually identical to the language of
the Fourth Amendment; therefore, the Supreme Court of Ohio has accordingly interpreted Section 14, Article I of
the Ohio Constitution as affording the same protection as the Fourth Amendment in felony cases. Accord State
v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, ¶ 10, fn. 1. Additionally, an officer may arrest and detain persons
where a misdemeanor offense has been committed in the officer's presence. State v. Matthews, 46 Ohio St.2d
72, 75-76 (1976).
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11, citing Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034 (1969). This exception

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

in arrest situations." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710 (2009), citing United

States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467 (1973). Searches need not necessarily

be conducted at the moment of the arrest so long as the interests in officer safety and

evidence preservation are still present. Smith at ¶ 12, citing United States v. Chadwick, 433

U.S. 1, 15, 97 S.Ct. 2476 (1977), abrogated on other grounds by California v. Acevedo, 500

U.S. 565, 111 S.Ct. 1982 (1991); United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct.

1234 (1974).

       {¶ 15} We preliminarily note that in order for a search to be conducted pursuant to the

search incident to arrest exception, the underlying arrest must be lawful. State v. Willis, 12th

Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 24, citing Chimel at 753. In turn, for an

arrest to be lawful, it must be based on probable cause, which is defined as "'whether at that

moment the facts and circumstances within [the arresting officer's] knowledge and of which

[the officer] had reasonably trustworthy information were sufficient to warrant a prudent

[person] in believing that the [defendant] had committed or was committing an offense.'"

State v. Washington, 10th Franklin No. 00AP-663, 2001 Ohio App. LEXIS 1925, *7 (May 1,

2001), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223 (1964). In this case, the trial

court found Officer Davila had probable cause to place Whipple under arrest. After a

thorough review of the record, we agree with the trial court's finding. The information

Johnson provided is reliable and trustworthy, as he witnessed the theft occur and such

information later proved to be accurate. Additionally, Officer Davila testified that he had

dependably used information Johnson provided in the past that has led to many successful

arrests. Therefore, the trial court properly found Whipple's arrest lawful.

       {¶ 16} We next determine whether the backpack was properly searched incident to
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Whipple's arrest. "The Ohio Supreme Court has previously upheld the search of a purse that

a woman was carrying at the time of her arrest." Washington at *8, discussing State v.

Mathews, 46 Ohio St.2d 72, 76 (1976). In Mathews, the court found a search valid as

incident to a lawful arrest where the detective retrieved a purse a woman was carrying at the

time of her arrest, set it on a nearby table, and searched its contents. Mathews at 73, 76.

Relying on Mathews, the Seventh and Tenth Districts upheld similar searches of shoulder

bags defendants were carrying at the time of their arrests. See Washington at *8-9; State v.

Sharpe, 7th Dist. Harrison No. 99 510 CA, 2000 Ohio App. LEXIS 2964, *14-15 (June 30,

2000). The Seventh District in Sharpe rejected the defendant's argument that the search

was not incident to his arrest because the removal of the bag from his person occurred

before the search. Sharpe at *14-15. In so holding, the court found the search permissible

because the defendant controlled the bag at the time of the arrest and the officer conducted

the search contemporaneously with the arrest. Id. at *15; see also Washington at *9 (making

same finding on analogous facts).

       {¶ 17} Pursuant to the cases cited above, this court explained "the focus of [the]

inquiry is whether the [item searched] was within the immediate control of the suspect at the

beginning of the encounter with law enforcement officials and whether any delay in searching

the container can be viewed as reasonable in nature." (Emphasis added.) Henderson,

2003-Ohio-1617 at ¶ 12-14, distinguishing State v. Myers, 119 Ohio App.3d 376, 381 (2d

Dist.1997) (suppressing evidence where defendant did not have physical control over the

purse at the time of the arrest). This result is consistent with the holdings of various federal

courts. See, e.g., United States v. Nelson, 102 F.3d 1344, 1346-47 (4th Cir.1996); United

States v. Morales, 923 F.2d 621, 626-27 (8th Cir.1991); United States v. Johnson, 846 F.2d

279, 283 (5th Cir.1988); United States v. Herrera, 810 F.2d 989, 990 (10th Cir.1987).



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       {¶ 18} In the present case, the record reveals that both at the time of the offense and

the time of the arrest, Whipple had physical control over the green backpack. Although not

specifically stated during the motion hearing, Officer Davila removed the backpack from

Whipple's person so that he could place Whipple in handcuffs. The trial court made this

inference in its decision and we defer to the trial court's findings of fact when reviewing a

motion to suppress. Relying on this finding, Whipple cites Gant and argues that the

justifications underlying a search incident to arrest could not be present because he was

handcuffed and the backpack was no longer on his person. However, the circumstances in

Gant are dissimilar to the facts in this case.

       {¶ 19} In Gant, police officers searched the defendant's automobile after handcuffing

the defendant and placing him in the back of a police cruiser. Gant, 556 U.S. at 335. The

United States Supreme Court found the search unreasonable and stated officers may search

a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger

compartment at the time of the search or if it is reasonable to believe the vehicle contains

evidence of the offense of the arrest. Id. at 351. Moreover, the Second District in Frazee

declined to extend the holding in Gant to the search of an item on an arrestee's person

because "the holding in Gant is narrowly confined to the search of a vehicle incident to

arrest." State v. Frazee, 2d Dist. Montgomery No. 26699, 2015-Ohio-4786, ¶ 17.

       {¶ 20} Nonetheless, the outcome in this case would be no different even if we were to

extend the holding in Gant to the search of an item on an arrestee's person. The mere fact

that Whipple's backpack was removed in order to place him in handcuffs is inconsequential

and the fact that the backpack was only placed a few feet away from the defendant is not

unreasonable. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 186 (stating search

of jacket three or four feet away likely proper under Gant because it was within defendant's

reach at the time of the search); Sharpe, 2000 Ohio App. LEXIS 2964 at *15 (finding
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placement of backpack a few feet away from defendant before search reasonable). To hold

the placement of the backpack a few feet away unreasonable "would essentially eliminate the

search incident to arrest exception to the warrant requirement in cases like this as a law

enforcement officer would only be entitled to conduct a search while the arrestee maintained

control of the container." Sharpe at *16.

       {¶ 21} Therefore, based on the foregoing case law, the search of the backpack was a

lawful search incident to Whipple's lawful arrest because the backpack was within Whipple's

immediate control and the search was instantaneous with the arrest.

       {¶ 22} Next, we turn to the reasonableness of the scope of the search. Whipple

asserts that if the backpack was subject to a lawful search incident to his arrest, then, the

backpack could only be searched for weapons and additional stolen merchandise. Based on

this reasoning, Whipple contends that once the search revealed neither weapons nor

merchandise, any additional search of containers within the backpack which would not reveal

weapons or merchandise was beyond the permissible scope of the exception, and therefore,

unconstitutional.

       {¶ 23} However, contrary to Whipple's claim otherwise, while a lawful search incident

to arrest is "based upon the need to disarm and to discover evidence, [it] does not depend on

what a court may later decide was the probability in a particular arrest situation that weapons

or evidence would in fact be found upon the person of the suspect." Robinson, 414 U.S. at

235. Rather, a "custodial arrest of a suspect based on probable cause is a reasonable

intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the

arrest requires no additional justification." Id.

       {¶ 24} Based on this holding, the Court in Robinson concluded that a search of a

cigarette pack found in an arrestee's jacket "was reasonable even though there was no

concern about the loss of evidence, and the arresting officer had no specific concern that [the
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arrestee] might be armed." Riley v. California, 134 S.Ct. 2473, 2483 (2014), citing Robinson

at 236. Thus, the Court did not draw a line between: (1) a search of the arrestee's person or

any personal property immediately associated with the person of the arrestee, and (2) a

further examination of the cigarette pack found during the search. Riley at 2484, citing

Robinson at 236 and Chadwick, 433 U.S. at 15. The Court in Robinson "merely noted that,

'[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the

officer] was entitled to inspect it.'" Riley at 2484, quoting Robinson at 236.

        {¶ 25} The facts in this case are analogous to the facts of Robinson. Officer Davila

conducted a lawful search incident to Whipple's arrest. Whipple's backpack was the subject

of the search and was immediately associated with his person at the time of his arrest.

Officer Davila's search included further examination of a cigarette pack found within the

backpack. Even if Officer Davila had a lack of concern about the loss of evidence or that

Whipple may have been armed, the search was nonetheless reasonable pursuant to

Robinson because it was discovered in the course of a lawful search and this court need not

determine the probability that Whipple's particular arrest would have resulted in weapons or

evidence. Therefore, the search conducted by Officer Davila did not exceed the permissible

scope of the search incident to arrest exception.

        {¶ 26} Accordingly, the state's second assignment of error is sustained. In light of our

resolution of the state's second assignment of error, the state's first assignment of error is

moot.

        {¶ 27} The trial court's decision suppressing the evidence found in the backpack is

reversed, and the matter is hereby remanded for further proceedings according to law and

consistent with this court's opinion.


        S. POWELL, P.J., and PIPER, J., concur.


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