[Cite as State v. Carr,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24004 Plaintiff-Appellee : : Trial Court Case No. 09-CR-3281 v. : : (Criminal Appeal from DAMIEN CARR : (Common Pleas Court) : Defendant-Appellant : :

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OPINION

Rendered on the 29th day of April, 2011.

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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CARY B. BISHOP, Atty. Reg. #0077369, 79 Trial East, Pataskala, Ohio 43062 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Damien Carr appeals from his conviction and sentence,

following a no-contest plea, on one count of Carrying a Concealed Weapon, and one count of

Having a Weapon While Under a Disability. Carr contends that the trial court erred by

overruling his motion to suppress evidence – a rifle – found in his car as a result of a search of 2

the interior of his car.

{¶ 2} We conclude that the officer who stopped Carr, having determined that he

would return Carr to his vehicle and send him on his way, was justified, under all of the

surrounding circumstances, in conducting a brief search of the interior of the car for weapons.

The officer had a reasonable belief that a weapon might be found in the interior of the car.

{¶ 3} Consequently, we conclude that the trial court properly overruled Carr’s motion

to suppress, and the judgment of the trial court is Affirmed.

I

{¶ 4} Trotwood Police Officer Timothy Davis was on patrol the night of October 4-5,

2009, when he received a dispatch reporting a drive-by shooting on Pittsburg Avenue in

Harrison Township. It was just before 1:00 a.m. The report indicated that the shooter was in

a silver-colored vehicle, “possibly a Saturn,” but gave no other description of either the

vehicle or the shooter.

{¶ 5} Davis responded to the dispatch, even though it was outside Trotwood, as a

result of a mutual aid agreement between Trotwood and Harrison Township.

{¶ 6} About three minutes after the report, and about one mile from the scene of the

shooting, Davis saw a silver-colored Toyota Camry, being driven by Carr. Davis was asked

about other traffic on the road that night:

{¶ 7} “Q. How many other vehicles did you encounter in that area around this time?

Was there a lot of other traffic, other vehicles?

{¶ 8} “A. Zero. That was the only vehicle I saw.” 3

{¶ 9} Carr’s vehicle ran a four-way stop sign, and accelerated away from Davis.

Davis acknowledged that Carr might not have seen Davis. Davis effected a traffic stop,

intending to investigate whether the driver of the Camry might have been involved in the

drive-by shooting. Because Davis was concerned for his safety, he had Carr get out of his

vehicle and come back to Davis’s cruiser. Davis asked Carr general questions about his

identity, what he was doing, and where he was going. Carr said he did not have identification

with him, and gave the name and identifying information of his brother, Michael Carr. The

personal information checked out. Davis did not discover until later that Carr had used his

brother’s identity.

{¶ 10} Davis did not pat down Carr for weapons, but watched Carr’s hands carefully,

keeping them in plain view, until a supervisor, Sergeant Mogenberg, arrived. Davis was

concerned that there might be a weapon in the car, based upon the dispatch.

{¶ 11} When Mogenberg arrived, Davis asked Carr if there were any weapons in his

car. Carr said there weren’t any weapons in his car. Davis then told Carr that he was going

to check the vehicle. “If there was nothing there, he’d be on his way. He got a little upset

that we were going to search the car.”

{¶ 12} Davis found a rifle under a blanket on the back-seat floorboard of Carr’s

vehicle. Mogenberg handcuffed Carr, but Davis could not recall whether this was done when

Davis went to search the car, or whether it was done after Davis had found the rifle.

{¶ 13} After the rifle was found, Carr was arrested. He was ultimately charged with

Carrying a Concealed Weapon and with Having a Weapon While Under a Disability.

{¶ 14} Michael Gallagher, a detective with the Montgomery County Sheriff’s Office, 4

interviewed Carr at the Montgomery County Jail the following morning. At that time, Carr

was still a suspect in the drive-by shooting. Gallagher told Carr that he was investigating a

Felonious Assault, presumably referring to the shooting, and he wanted to search Carr’s

vehicle for evidence connected to the shooting. Carr had no objection, and executed a written

consent to search.

{¶ 15} No additional evidence was found in Carr’s vehicle. The shell casings

retrieved at the scene of the shooting did not match the ballistics of the rifle found in Carr’s

vehicle. By the time of the suppression hearing, Carr was no longer a suspect in the shooting.

{¶ 16} At the conclusion of the suppression hearing, the State argued that Davis had

probable cause to believe that Carr’s vehicle was involved in the shooting, and that exigent

circumstances existed due to the mobility of the vehicle, so that a warrant to search the car

was not required. Carr argued that Davis did not have enough facts to support probable cause

for the search.

{¶ 17} In its written decision, the trial court rejected Carr’s argument that: “Once he

was stopped, * * * the police had no reason to pull him from his vehicle and search the

vehicle.”

{¶ 18} Following the denial of his motion to suppress, Carr pled no contest to both

charges. He was found guilty and was sentenced to community control sanctions for a

five-year period. From his conviction and sentence, Carr appeals.

II

{¶ 19} Carr’s sole assignment of error is as follows:

{¶ 20} “THE TRIAL COURT IN THIS CASE COMMITTED ERROR BY 5

ALLOWING ADMISSION OF EVIDENCE OBTAINED THROUGH AN IMPROPER

SEARCH.”

{¶ 21} Carr concedes that the initial stop was lawful, because he had run a stop sign.

But Carr contends that the search of his vehicle was unlawful. He argues that the stop-sign

violation subjected him to citation only, not arrest, so the search was not incident to a lawful

arrest. He argues that “no search to ensure officer safety was necessary,” because, after he

was removed from his car, he “was not within reach of any possible weapons that might have

been in his car.”

{¶ 22} As a preliminary matter, the State argues that Carr has forfeited any claim he

may have had that the search of his car was unlawful, because he did not raise this in the trial

court. The State argues that Carr limited his claim in the trial court solely to the issue of

whether the initial stop was lawful. We disagree.

{¶ 23} In his motion to suppress, Carr argued broadly that: “any evidence recovered as

a result of the unlawful search and seizure of defendant and the vehicle must be suppressed.”

And he argued that: “Since the search and seizure of the defendant were allegedly done

without probable cause, the prosecutor bears the burden of going forward with the evidence on

the issue of whether probable cause existed for the search and seizure.”

{¶ 24} At the suppression hearing, evidence was elicited concerning Davis’s search of

Carr’s vehicle.

{¶ 25} At the conclusion of the suppression hearing, neither party argued the propriety

of the stop. The State argued first. The State argued that:

{¶ 26} “In this particular case, looking at the totality of the circumstances as the Court 6

is required to do, Officer Davis had probable cause to believe that this vehicle was indeed

involved in the shooting and that evidence or contraband relating to that shooting could

potentially be in the vehicle.

{¶ 27} “ * * * *

{¶ 28} “And under the totality of the circumstances then, the officer had probable

cause to believe that this was the suspect vehicle and that a weapon relating to the drive-by

shooting that had recently occurred would be found in the vehicle.

{¶ 29} “Therefore, under the automobile exception, Officer Davis was permitted to

search this vehicle without a warrant, which he did, thereby recovering the weapon.”

{¶ 30} Carr then argued to the contrary, concluding that: “So there was not enough

probable cause for this officer to search for a weapon.”

{¶ 31} We have opined that a lesser quantum of probable cause is required for a quick

search for weapons in the interior of a car than is required for a full blown search of a car for

evidence, generally. “[W]e do find that a police officer may search the interior of an

automobile when the officer reasonably suspects that the individual has a weapon secreted in

the automobile * * * and the officer has made the determination that he or she is going to

allow the individual to return to the vehicle.” State v. Henderson (November 7, 1997),

Montgomery App. No. 16016, at p. 4. In that case, we noted that this is just an extension to

automobile stops of the protective frisk for weapons originally countenanced by Terry v. Ohio

(1968),

,

,

, and that this extension was recognized in

Michigan v. Long (1983),

,

,

.

{¶ 32} In the case before us, Officer Davis testified that he believed there might be a 7

gun in Carr’s vehicle. Although Davis may well have lacked probable cause for an

evidentiary search of the vehicle, we conclude that he had a reasonable suspicion that there

might be a weapon in the vehicle. Carr was driving a silver-colored vehicle about one mile

from the scene of the drive-by shooting, and about three minutes after the dispatch, and Davis

did not see another car in that area at that time – just before 1:00 a.m.

{¶ 33} Carr cites Arizona v. Gant (2009),

,

,

, for the proposition that because he was secured at some remove from his vehicle during

the search, any weapons in the car could not have been within his reach, and therefore Officer

Davis could not conduct a weapons search of the car. Arizona v. Gant involved a situation

where the driver was arrested for driving with a suspended license. Unlike Carr, the suspect

in Arizona v. Gant was not going to be returned to his car. In fact, Justice Scalia, in his

concurring opinion, expressly distinguished the holding in Michigan v.

on that

basis:

{¶ 34} “It must be borne in mind that we are speaking here only of a rule automatically

permitting a search when the driver or an occupant is arrested. Where no arrest is made, we

have held that officers may search the car if they reasonably believe ‘the suspect is dangerous

and . . . may gain immediate control of weapons.’ Michigan v. Long, [citation omitted]. In

the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the

driver or passenger will be allowed to return to the vehicle when the interrogation is

completed. The rule of Michigan v. Long is not at issue here.”

.

{¶ 35} Davis testified that he would have sent Carr on his way if the weapons check of

the interior of Carr’s vehicle had been negative. This case is therefore within the ambit of 8

Michigan v.

not Arizona v.

{¶ 36} Davis’s limited search of the interior of Carr’s vehicle for weapons was

justified. Carr’s sole assignment of error is overruled.

III

{¶ 37} Carr’s sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

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HALL and BROGAN, JJ., concur.

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Mathias H. Heck, Jr. Andrew T. French Cary B. Bishop Hon. Frances E. McGee