[Cite as State v. Shipp,

.]

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

STATE OF OHIO : : Appellate Case No. 24933 Plaintiff-Appellee : : Trial Court Case No. 2010-CR-3793 v. : : KEVIN D. SHIPP : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 28th day of December, 2012.

...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, 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

RICHARD A. NYSTROM, Atty. Reg. #00400615, 1502 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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

FAIN, J.

{¶ 1} Defendant-appellant Kevin D. Shipp appeals from his conviction and sentence

for Improper Handling of a Firearm in a Motor Vehicle, following a no-contest plea. Shipp 2

contends that the trial court erred by overruling his motion to suppress evidence seized as a

result of the seizure of his wallet from his pocket and the search of the glove compartment of

the motor vehicle he was driving.

{¶ 2} We conclude that the trial court did not err in overruling Shipp’s motion to

suppress evidence, because there was probable cause to both arrest Shipp and search the glove

compartment. Accordingly, the judgment of the trial court is Affirmed.

I. Shipp Commits a Traffic Violation and Volunteers Information

About a Gun in the Glove Compartment

{¶ 3} In its decision overruling Shipp’s motion to suppress (Dkt. 14, p. 1-3), the

trial court made the following findings of fact:

On December 1, 2010 at approximately 11:30 pm, [Dayton Police] Officer

[Daniel] Zwiesler observed Mr. Shipp make a right hand turn into the Big E Bar on

North Main Street in the City of Dayton without continuously signaling for at least 100

feet his intention to turn. Officer Zwiesler, with probable cause to believe Mr. Shipp

was in violation of Dayton [Revised Code of General Ordinances] Section 71.31

and/or R.C. Section 4511.39, initiated a traffic stop. When Mr. Shipp could not

produce a valid Ohio Driver’s license upon request, Officer Zwiesler ordered him out

of his car, removed Mr. Shipp’s wallet from his pants pocket and located his Ohio

Photo

In response to Officer Zwiesler’s call for backup, Trotwood PD Officer

[Matthew] Barnes [FN1] arrived and placed Mr. Shipp into the back of his Trotwood

cruiser while Officer Zwiesler called in to determine if Mr. Shipp had a valid Ohio 3

Driver’s License. He did not and Officer Zwiesler made the decision to arrest Mr.

Shipp for driving illegally and to tow and inventory the vehicle pursuant to the [Dayton

Police Department’s] General Order/Towing Motor vehicles (“the Policy”).

[FN1] Among other responding officers including DPD Officers

[Gordon L.] Cairns and [Chad] Knight.

Officers Zwiesler and Cairns began a property inventory [FN2]

pursuant to the Policy at which time Mr. Shipp became visibly agitated and

began shouting. Because he was in Officer Barnes’ cruiser with the windows

rolled up [FN3], Officer Zwiesler could not hear what Mr. Shipp was saying.

DPD Officer Knight was standing next to Barnes’ cruiser, however, and heard

Mr. Shipp yelling that the Officer’s “search” of his vehicle was illegal because

they had no warrant and they could not use the gun in the glove box against

him. Officer Knight informed Officer Zwiesler of Mr. Shipp’s statements

regarding the gun whereupon Officers Zwiesler and Cairns each pulled down

the right corner of the locked glove box and were able to see with flashlight

illumination a gun and box of ammunition in the glove box. Because none of

Mr. Shipp’s keys opened the glove box, Officer Zwiesler pried the box open

using a screw driver and recovered the gun and ammunition. The gun had six

live rounds chambered before Officer Zwiesler unloaded the weapon.

[FN2] Officer Barnes and Officer Harvey may also have assisted at

some point during the property inventory.

[FN3] It was a cold December night. [Cite as State v. Shipp,

.] {¶ 4} There is competent, credible evidence in the record to support the trial court’s

findings of fact.

II. The Course of Proceedings

{¶ 5} Shipp was charged by indictment with one count of Having a Weapon

While Under a Disability, with a previous conviction for a drug offense, in violation of R.C.

2923.13(A)(3); and with one count of Carrying a Concealed Weapon, in violation of R.C.

2923.12(A)(2). He moved to suppress the evidence obtained following the traffic stop,

contending that it was obtained as the result of an unlawful search of the glove compartment

of the motor vehicle he was driving.

{¶ 6} After the trial court overruled his motion to suppress, Shipp pled guilty

to Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C. 2923.16(B), a

felony of the fourth degree, with which he had been charged by a bill of information, Shipp

having waived indictment on that charge. The other charges were dismissed.

{¶ 7} Apparently realizing that he had inadvertently failed to preserve the

suppression issue for appeal by pleading guilty, Shipp moved to withdraw his plea, and the

trial court granted his motion. He was indicted for Improper Handling of a Firearm in a

Motor Vehicle, in violation of R.C. 2923.16(B), the bill of information charging him with that

offense was vacated, and the matter was set for trial.

{¶ 8} Before trial, Shipp pled no contest to the charge of Improper Handling of a

Firearm in a Motor Vehicle. The trial court entered a judgment of conviction, and sentenced

Shipp to community control sanctions for a period not to exceed five years.

{¶ 9} From his conviction and sentence, Shipp appeals. 5

III. Probable Cause Existed Both to Arrest Shipp

and to Search The Glove Compartment

{¶ 10} Shipp’s sole assignment of error is as follows:

WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE

FRUIT OF A WARRANTLESS SEARCH AND THEREBY PRECLUDED

DEFENDANT’S CONSTITUTIONAL RIGHTS TO UNREASONABLE SEARCHES

[sic] AND DUE PROCESS UNDER THE FOURTH, FIFTH, AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 10, OF THE OHIO STATE CONSTITUTION. (Italics in original.)

{¶ 11} In ruling on a motion to suppress, “the trial court assumes the role of the trier

of fact, and, as such, is in the best position to resolve questions of fact and evaluate the

credibility of the witnesses.” State v. Retherford,

,

(2d Dist. 1994) (Citation omitted.) Accordingly, when we review suppression decisions, “we

are bound to accept the trial court’s findings of fact if they are supported by competent,

credible evidence. Accepting those facts as true, we must independently determine as a

matter of law, without deference to the trial court’s conclusion, whether they meet the

applicable legal standard.”

{¶ 12} Although he frames his assignment of error as a question, and labels it “Issue

I,” it is clear that Shipp is contending that the firearm found in the glove box, which is the

basis for the charge of which he was convicted, was obtained as the result of an unlawful

search and seizure. He makes a number of arguments in support of his assignment of error. 6

We will address the arguments in the order in which Shipp presented them in his brief.

A. The Removal of Shipp’s Wallet

{¶ 13} Shipp contends that Officer Zwiesler had no proper basis for seizing Shipp’s

wallet from Shipp’s pants pocket.

{¶ 14} Officer Zwiesler was asked, on re-direct examination, why he took Shipp’s

wallet from Shipp’s pants pocket (Tr. 37):

Q. All right. Now, what was your reasoning into reaching into his

pocket?

A. I had asked him where his ID was. He told me that it was in his

back pocket in his wallet and I retrieved it –

Q. Did you want- -- I’m sorry, go ahead.

A. And I retrieved it.

Q. Did you want him retrieving it?

A. No, I did not.

Q. Why is that?

A. I don’t want people reaching into pockets for my safety. Some

weapons, knives, razor blades, some people carry box cutters that are – that

they use at work or any other improvised weapon. I could see the wallet and

so I removed it.

{¶ 15} Officer Zwiesler testified that he had not met Shipp before, and did not know

anything about him. Earlier on re-direct, the State attempted to elicit testimony from Officer 7

Zwiesler concerning the high-crime character of the area in which Shipp was stopped, but the

trial court sustained an objection to this line of testimony on the ground that it was outside the

scope of cross examination.

{¶ 16} On Shipp’s re-cross-examination of Officer Zwiesler, the following exchange

occurred (Tr. 41-43):

Q. Officer, you say you don’t want people you don’t know reaching

into a pocket to get their IDs out. Do you ever make a traffic stop of a person

that you don’t know on sight?

A. Yes.

Q. Do you routinely reach into people’s pockets to take their driver’s

licenses out?

MR. PARKER [representing the State]: Objection, Your Honor.

THE COURT: Overruled.

THE WITNESS: Depending upon where I’m at.

BY MR. HODGE [representing Shipp]:

Q. On a traffic stop?

A. Correct.

Q. Turn signal violation, depending upon location, you -- you go into

people’s pockets?

A. Yes.

Q. Okay. Do you always detain those people in a – in some manner

before remov- -- or after removing that identification? 8

MR. PARKER: I’m going to have to object to that, Your Honor. It’s

highly speculative on every occasion that -- the officer’s made thousands of

stops –

THE COURT: Overruled.

THE WITNESS: Could you ask your question again, sir?

MR. HODGE: Yes.

BY MR. HODGE:

Q. Do you always detain those people that you remove -- that you

personally remove identification from until you can verify identification?

A. Yes, generally that’s what I do.

Q. You don’t leave them in their own vehicles?

A. Depending upon where I’m at, I may or may not leave them in their

vehicle.

Q. All right. Well, clarify for me then just where you’re at? For

instance, do you -- do you -- give me a location where you do not go into

someone’s pockets and take out his ID or her ID out of her -- or purse, I guess,

and detain them while you verify the ID? Just tell me a location in Dayton

where you don’t do that?

A. (Indiscernable) --

MR. PARKER: Objection, Your Honor, I believe it’s irrelevant.

MR. HODGE: The jail. At the jail.

MR. PARKER: Objection, Your Honor. 9

THE COURT: Overruled.

BY MR. HODGE:

Q. That’s what your answer was -- the jail?

Is there any street location in Dayton where you don’t do that?

A. Again, it’s going to depend upon where -- where I am at.

Q. Okay. West Dayton.

A. Third and Broadway.

Q. Third and Broadway, you do not stop peo- -- I mean, you do not

search people yourself, they take out their own

A. Dependent -- it completely depends upon what the traffic stop is,

the surrounding circumstances of it are, my location, time of day, whether or

not the person’s the owner of the car or not.

{¶ 17} With police officer Cairns, the State was able to elicit testimony concerning

the high-crime nature of the area of the stop (Tr. 53-54):

Q. Officer Cairns, are you familiar with this area that you’re in?

A. Yes.

Q. And how so?

A. I used to work that area for about four years when I first came out

of Police Academy.

Q. How would you describe that area?

A. That particular bar, there’s lots of instances of fights and guns

being dealt with. Basically crime, a lot of crime in that area. 10

Q. Are you familiar with any recent crimes that have taken place

there?

A. Yes, I believe there was actually a homicide at that particular bar

last week, a week and a half ago perhaps.

Q. Have you made many arrests in that area?

A. Yes.

{¶ 18} In order to conduct a lawful weapons pat-down, a police officer must have a

reasonable suspicion that the person the officer is patting down may be armed and dangerous.

In the case before us, the only reason established by the evidence for Officer Zwiesler’s

suspicion that Shipp might have a weapon in the pants pocket from which Officer Zwiesler

retrieved Shipp’s wallet was the criminal character of the neighborhood in which the stop

occurred. We have rejected the high-crime nature of an area as a reason, in and of itself,

justifying a pat-down. State v. Habel,

,

,

, ¶ 24-25 (2d Dist.). See also State v. Roberts, 2d Dist. Montgomery No. 23219,

, ¶ 18: “We emphasize that an officer must have a reasonable individualized

suspicion that the suspect is armed and dangerous before he may conduct a patdown for

weapons.” (Emphasis sic.)

{¶ 19} Here, Officer Zwiesler had no individualized suspicion that Shipp might be

armed and dangerous. Neither the traffic violation for which Shipp was stopped (turning

without signaling is routinely committed by motorists every day) nor anything Shipp did after

he was stopped supported a reasonable suspicion that Shipp might be armed and dangerous.

The only reason offered for that suspicion was the high-crime nature of the location, and that 11

is not sufficient, without other reasons.

{¶ 20} Notwithstanding the lack of a reasonable suspicion that Shipp might be armed

and dangerous, Officer Zwiesler was aware of information establishing probable cause for an

arrest. When Officer Zwiesler asked Shipp for his driver’s license, Shipp “stated that he

didn’t have his license, but he did have a [sic] identification card.” Tr. 8. R.C. 4507.35(A)

provides:

The operator of a motor vehicle shall display the operator’s driver’s

license, or furnish satisfactory proof that the operator has a driver’s license,

upon demand of any peace officer or of any person damaged or injured in any

collision in which the licensee may be involved. * * * A person’s failure to

furnish satisfactory evidence that the person is licensed under this chapter when

the person does not have the person’s license on or about the person’s person

shall be prima-facie evidence of the person’s not having obtained a driver’s

license.

{¶ 21} Shipp’s failure to furnish a driver’s license to Officer Zwiesler constituted

prima facie evidence that Shipp had not obtained a driver’s license. R.C. 4507.35(A). Shipp

stated that he did not have a license but had an identification card. R.C. 4507.52(A) provides,

in part:

(A) Each identification card issued by the registrar of motor vehicles or

a deputy registrar shall display a distinguishing number assigned to the

cardholder, and shall display the following inscription:

“STATE OF OHIO IDENTIFICATION CARD 12

This card is not valid for the purpose of operating a motor vehicle. It is

provided solely for the purpose of establishing the identity of the bearer

described on the card, who currently is not licensed to operate a motor vehicle

in the state of Ohio.”

{¶ 22} R.C. 4507.50(A) provides, in part:

The registrar of motor vehicles or a deputy registrar, upon receipt of an

application filed in compliance with section 4507.51 of the Revised Code by

any person who is a resident or a temporary resident of this state and, except as

otherwise provided in this section, is not licensed as an operator of a motor

vehicle in this state or another licensing jurisdiction, and, except as provided in

division (B) of this section, upon receipt of a fee of three dollars and fifty cents,

shall issue an identification card to that person.

{¶ 23} In short, a person cannot have both an identification card and a driver’s

license. In order to be issued an identification card, the person requesting the card cannot

have a driver’s license. R.C. 4507.50(A). Therefore, when Shipp stated that he did not have

a license, but had an identification card, Officer Zwiesler had probable cause for an arrest of

Shipp for operating a motor vehicle without a valid driver’s license. Jackson v. City of

Gahanna,

(S.D. Ohio 2010). Shipp concedes that “[t]he traffic

violations – both turn signal use and lack of a valid license – are sufficient to justify the stop

and ultimately, the arrest.” Brief, p. 11.

{¶ 24} One of the exceptions to the general prohibition against warrantless searches

is a search incident to a lawful arrest. Chimel v. California,

, 89 S. Ct. 13

2034,

(1969). “When conducting a search incident to arrest, police are not

limited to a Terry pat-down for weapons, but may conduct a full search of the arrestee’s

person for contraband or evidence of a crime.” State v. Gagaris, 12th Dist. Butler No.

CA2007-06-142,

(Citations omitted.) See also State v. Jones,

,

(2d Dist. 1996).

{¶ 25} “If probable cause to arrest without a warrant exists prior to a search, it is

immaterial that the search incident to arrest actually precedes the arrest. * * * The key is the

prior existence of probable cause, and that the fruit of the search not provide the justification

for the arrest.” State v. Haines, 12th Dist. Clermont No. CA2003-02-015, 2003- Ohio-6103,

¶17.

{¶ 26} Before Officer Zwiesler searched Shipp and retrieved the wallet from his

pocket, Shipp had informed Officer Zwiesler that Shipp did not have a driver’s license but

instead had an identification card. At that moment, Officer Zwiesler had probable cause to

arrest Shipp. Therefore, Officer Zwiesler’s search of Shipp’s person and ultimate retrieval of

Shipp’s wallet was lawful as a warrantless search incident to an arrest.

B. Dayton’s Tow Policy

{¶ 27} Warrantless searches are considered per se unreasonable under the Fourth

Amendment, subject to only a few specifically established and well delineated exceptions.

City of Xenia v. Wallace,

,

(1988). An inventory

search is one exception, and “permits police to conduct a warrantless search of a vehicle in

order to inventory its contents after the vehicle has been lawfully impounded.” State v. 14

Clancy, 2d Dist. Montgomery No. 18844,

, citing State v. Mesa,

,

(1999).

{¶ 28} Shipp contends that the Dayton Police Department’s Tow Policy leaves the

decision to tow “to the officer’s open-ended discretion” and, therefore, “any search incident to

that situation is unlawful and the fruits of the search must be suppressed.” Brief, p. 15. We

do not agree.

{¶ 29} A copy of the Dayton Police Department’s Tow Policy was submitted to the

trial court as Joint Exhibit 1. The Tow Policy states a preference for towing vehicles operated

by drivers who do not have an operator’s license. Furthermore, the Tow Policy provides that

an inventory of the vehicle’s contents should be performed prior to the towing of the motor

vehicle.

{¶ 30} In State v. Robinson, 2d Dist. Montgomery No. 23175,

, we

rejected a similar argument that the City of Dayton Police Department’s tow policy “gives

police officers too much discretion in deciding when they should tow vehicles.” Id. at ¶ 1.

In Robinson, we discussed a number of cases, including State v. Bozeman, 2d Dist.

Montgomery No. 19155,

, which Shipp relies on in arguing that the evidence

of the firearm must be suppressed. As we explained in Robinson, however, Bozeman “does

not control our decision, because it involved a situation that was not covered by the tow policy

at all, and there were no factors that informed the officer’s discretion whether to tow

vehicles.” Robinson at ¶ 45.

{¶ 31} Moreover, after our holding in Bozeman, the Supreme Court addressed the

issue of discretion in police department’s towing policies in Blue Ash v. Kavanaugh, 113 Ohio 15

St.3d 67,

,

. “[A]s interpreted by the Supreme Court of Ohio

in Blue Ash, if an officer is expressly authorized to use discretion in deciding whether to

impound a vehicle, the pertinent inquiry is whether the impoundment was merely a pretext for

an evidentiary search.” Robinson at ¶ 52.

{¶ 32} The Dayton Police Department Tow Policy provides police officers with

discretion in determining whether vehicles should be impounded. There is no evidence in the

record that the decision to tow Shipp’s vehicle was a pretext for an evidentiary search. The

impoundment, therefore, was lawful. Also, even if the Police Department’s inventory policy

was violated when Shipp’s locked glove compartment was forced open, by that time there was

an independent basis for the search – Shipp’s voluntary statements that there was a gun in the

glove compartment. Id. at ¶ 53-56 (Citation omitted.) As Shipp concedes, “[i]f there is

probable cause to search, it makes no difference if the glove box is open, closed, or even

locked.” Brief, p. 17.

C. Shipp’s Volunteered Statements

{¶ 33} Once a law enforcement officer has probable cause to believe that a vehicle

contains contraband or other evidence that is subject to seizure, he may search a validly

stopped motor vehicle based upon the well-established automobile exception to the warrant

requirement. Maryland v. Dyson,

,

,

(1999); State v. Mills,

,

(1992). When probable cause

is found to exist under the facts and circumstances of a given case, law enforcement officers

have the necessary constitutional justification to explore any areas in the vehicle, such as 16

locked trunks and glove compartments that may reasonably contain the object of their search.

United States v. Ross,

,

,

(1982); State v.

Welch,

,

(1985).

{¶ 34} Shipp contends that the State cannot show by a preponderance of the evidence

that he made statements about the gun in the glove compartment prior to the time that the

police officers opened the glove compartment and discovered the gun. We do not agree.

Detective Chad Knight arrived on the scene while the officers were inventorying Shipp’s

vehicle. While Detective Knight was standing by the back door of the cruiser, Shipp began

yelling from inside the cruiser. Detective Knight testified as follows regarding what he heard

(Tr. 62):

I was standing by the back door. The occupant in the back seat of the cruiser

obviously was visibly upset seeing the guys search his car. He started yelling, “You

can’t search my car. You can’t -- you don’t have a warrant. You need a warrant.

You can’t search my car.” And he started yelling at a girl that was by the back door

and, “Baby, they tryin’ to charge me with this.” And you know, “They can’t search

my car. They tryin’ to charge me with some gun.” And you know, “They can’t do

that -- you can’t charge me with that gun. That’s a locked glove box and it’s locked

up. You can’t charge me.” To that effect.

{¶ 35} Officer Zwiesler, who was inventorying the car, did not hear Shipp yelling

from inside the police cruiser. Officer Zwiesler testified as follows regarding when he made

the decision to search the glove compartment (Tr. 11):

Q At any time had you searched the glove box? 17

A Not until I was advised by Detective Knight and Officer Cairns that I

should probably check the glove box.

Q And what were you advised.

A That there was a gun in there.

Q Did the officers tell you what the defendant had stated?

A Yes, they had.

Q What did they say?

A I was advised that Mr. Shipp had begun yelling that it was an illegal

search of his car and that he couldn’t be charged with a gun in the glove box,

because it was locked.

Q And, again, prior to hearing that statement, had you searched the

glove box yet?

A No, I had not.

{¶ 36} Officer Cairns also testified that the glove compartment was searched after

Detective Knight informed him and Officer Zwiesler that Shipp had made reference to a gun

in the glove compartment. Tr. 51, 53.

{¶ 37} The testimony of record supports the finding that the police officers did not

search the glove compartment until after Shipp made voluntary statements about a gun in the

glove compartment. Consequently, at the time the police officers searched the glove

compartment, they had probable cause to believe that the glove compartment contained a

firearm, which made their warrantless search of the locked glove compartment lawful.

{¶ 38} Shipp’s sole assignment of error is overruled. 18

IV. Conclusion

{¶ 39} Shipp’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

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

GRADY, P.J., and HALL, J., concur.

Copies mailed to:

Michele D. Phipps Mathias H. Heck Richard A. Nystrom Hon. Steven K. Dankof