[Cite as State v. Frazee,

.]

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

STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 26699 : v. : Trial Court Case No. 2014-CR-4240 : STEVEN FRAZEE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :

...........

OPINION

Rendered on the 20th day of November, 2015.

...........

MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

JAMES M. CALHOUN, II, Atty. Reg. No. 0090173, Assistant Montgomery County Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

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

WELBAUM, J. -2-

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the decision of the

Montgomery County Court of Common Pleas suppressing heroin that was discovered in

the pocket of a coat worn by defendant-appellee, Steven Frazee. The State contends

the heroin should not have been suppressed because it was discovered during a search

incident to a lawful arrest. In addition, the State contends the heroin would have been

inevitably discovered during routine jail booking procedures. We agree with the State;

therefore, the judgment of the trial court will be reversed and remanded for further

proceedings.

Facts and Course of Proceedings

{¶ 2} On February 13, 2015, Frazee was indicted by the Montgomery County

Grand Jury for one count of possessing heroin in amount less than one gram in violation

of R.C. 2925.11(A). The charge arose from Frazee’s encounter with Montgomery

County Sheriff’s Deputy John Eversole after he discovered heroin inside Frazee’s coat

pocket. Frazee pled not guilty to the possession charge and then filed a motion to

suppress the heroin as evidence at trial. The trial court then held a hearing on the matter,

during which Eversole was the only witness to testify. Eversole provided the following

testimony.

{¶ 3} At approximately 10:30 a.m. on November 14, 2014, Eversole was patrolling

an area in Jefferson Township, Montgomery County, Ohio, when he observed a male and

female, later identified as Frazee and Morgan Bryant, walking eastbound on 3rd Street.

Eversole decided to stop his cruiser and speak with Frazee and Bryant because he did -3-

not recognize them as being from the area, and because the area was known to have a

high level of criminal activity. When Eversole pulled up next to Frazee and Bryant, he

introduced himself and asked for permission to speak with them, to which they both

agreed. Eversole then asked Frazee and Bryant if they would provide him with their

identification information. In response, both Frazee and Bryant provided Eversole with

their Ohio identification cards. Eversole then ran their information through his computer

to check for any outstanding warrants. Upon running their information, Eversole

discovered that Frazee had an outstanding warrant for his arrest.

{¶ 4} Eversole advised Frazee that he had an outstanding warrant for his arrest

and ordered him to place his hands behind his back so he could be handcuffed. In

response, Frazee asked Eversole if he could first remove one of the two coats he was

wearing. Because the coats were very bulky, Eversole allowed Frazee to remove his

exterior coat so that Frazee could be handcuffed more comfortably. Frazee then asked

Eversole if he could give the coat he removed to Bryant. Eversole refused Frazee’s

request and instead had Frazee place his coat on the trunk of the cruiser, which was one

foot away. Eversole testified that he did not allow Frazee to give the coat to Bryant for

officer safety reasons.

{¶ 5} Thereafter, Eversole placed Frazee in handcuffs and conducted a thorough

search of Frazee’s person as a search incident to arrest. Eversole searched Frazee at

the rear of the cruiser while Bryant was standing at the front of the cruiser. During the

search, another officer arrived on the scene to assist Eversole in watching Bryant. Once

Eversole confirmed that there were no weapons or contraband on Frazee’s person, he

then placed Frazee in the back of his cruiser. Eversole then retrieved and searched the -4-

coat that Frazee had been wearing.

{¶ 6} During the search of the coat, Eversole retrieved a cellophane package from

the left front-breast pocket. Eversole squeezed the package and felt a hard object inside.

From his training and experience, Eversole suspected that narcotics were inside the

package. As a result, Eversole opened the package and discovered a chunky brown

substance that he believed to be, and was later confirmed to be, heroin. After Eversole

discovered the heroin, Frazee asked if he could take the coat with him to jail, to which

Eversole permitted after removing the heroin. Eversole then placed the coat at the front

of his cruiser with Frazee’s other belongings and transported him to jail. Eversole

indicated that Frazee was booked at the Montgomery County Jail without incident.

{¶ 7} Upon hearing Eversole’s testimony, the trial court granted Frazee’s motion

to suppress the heroin on grounds that the warrantless search of the coat did not qualify

as a search incident to arrest. In so holding, the trial court relied on Frazee’s argument

that the coat was not on Frazee’s person and not within his control at the time it was

searched. The State now appeals from this decision, raising the following single

assignment of error for review.

BECAUSE THE HEROIN IN FRAZEE’S JACKET WAS FOUND DURING A

SEARCH INCIDENT TO A LAWFUL ARREST AND WOULD HAVE

INEVITABLY BEEN DISCOVERED DURING ROUTINE JAIL BOOKING

PROCEDURES, THE TRIAL COURT ERRED IN FAILING TO ADMIT THE

EVIDENCE.

{¶ 8} Under its sole assignment of error, the State argues that the trial court erred

in suppressing the heroin found in Frazee’s coat pocket because it was discovered during -5-

a search incident to a lawful arrest. Specifically, the State argues that the search incident

to arrest exception applies despite the fact that Frazee did not have control over the coat

while it was being searched, as the State maintains it only matters that the coat was in

Frazee’s control at the time of his arrest. The State also argues that even if the search

of Frazee’s coat does not qualify as a search incident to arrest, the heroin would have

been inevitably discovered by law enforcement during a routine inventory search of the

coat when Frazee was booked into jail.

Standard of Review

{¶ 9} 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); State v. Knisley, 2d Dist. Montgomery No. 22897,

,

¶ 30. Accordingly, when we review suppression decisions, we must 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.”

Search Incident to Arrest

{¶ 10} Under the Fourth Amendment, a search absent a warrant is per se

unreasonable, “subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States,

,

,

-6-

(1967). One such exception is for searches incident to a lawful arrest. Chimel v.

California,

,

,

(1969). The search

incident to arrest exception to the warrant requirement “derives from interests in officer

safety and evidence preservation that are typically implicated in arrest situations.”

(Citations omitted.) Arizona v. Gant,

,

,

(2009). Pursuant to this exception, an officer making a lawful arrest may conduct a

warrantless search of the arrestee’s person and of the area “within his immediate control.”

.

{¶ 11} The area within a person’s immediate control includes “the area from within

which he might gain possession of a weapon or destructible evidence.”

The

Supreme Court of Ohio recently stated that “the right to search incident to arrest exists

even if the item is no longer accessible to the arrestee at the time of the search. * * * As

long as the arrestee has the item within his immediate control near the time of the arrest,

the item can be searched.” State v. Adams, Slip Opinion No.

, ___

N.E.3d ___, ¶ 183, citing United States v. Romero,

(6th Cir. 2006) and

Northrop v. Trippett,

(6th Cir. 2001).

{¶ 12} The recent decision in Adams partially involves the search of a jacket that

yielded evidence of a homicide. The search occurred in 1985 when three officers went

to the homicide victim’s duplex to search her second-floor apartment. The occupant of

the first floor apartment, Bennie Adams, allowed the officers inside the common area of

the duplex to conduct a search. When the officers discovered that the victim’s apartment

was locked, they knocked on Adams’ apartment door and asked to use his phone so they

could call the owner of the duplex and request a key to the victim’s apartment. In -7-

response, Adams allowed the officers inside his apartment. While one of the officers

was using the phone, the other officer asked Adams if anything suspicious had been

happening lately and whether he was alone. Just after Adams told the officers that he

was alone in the apartment, the officers heard a loud bump that sounded like a door hitting

a wall. Two of the officers then went to a back bedroom to investigate and found a man

named Horace Landers hiding behind a door. Id. at ¶13-18.

{¶ 13} The officers recognized Landers as having an outstanding misdemeanor

warrant and immediately arrested and handcuffed him. Because Landers did not have

on a shirt, and it was cold outside, one of the officers grabbed a jacket for him off the floor.

The jacket was about three or four feet away from where the officers had found Landers.

As one of the officers searched the jacket for weapons, Landers told the officer that the

jacket belonged to Adams. Meanwhile, the officer searching the jacket felt a hard object

in the pocket and pulled it out. The object was the ATM card of the homicide victim.

Also in the pocket of the jacket was Adams’ welfare card. The officers immediately

arrested Adams, and after further investigation, they found more evidence pointing to

Adams as the killer; however, the homicide investigation went cold in 1986. Id. at ¶ 19-

25, 63. It was not until 2007, when the case was reopened and DNA evidence was

obtained, that Adams was charged and convicted of aggravated murder. Id. at ¶ 65-73.

In appealing his conviction to the Supreme Court of Ohio, Adams disputed the legality of

the search that resulted in the discovery of the victim’s ATM card. Id. at ¶179.

{¶ 14} Adams argued that the search of the jacket pocket could not be justified by

concerns regarding officer safety, given that Landers was already handcuffed and unable

to reach the jacket. However, in response, the Supreme Court indicated that “the right -8-

to search incident to arrest exists even if the item is no longer accessible to the arrestee

at the time of the search. * * * As long as the arrestee has the item within his immediate

control near the time of the arrest, the item can be searched.” (Citations omitted.)

Adams, Slip Opinion No.

, ___ N.E.3d ___ at ¶ 183.

{¶ 15} Adams also argued that the United States Supreme Court’s decision in

Gant,

,

,

, should apply. In Gant, police

officers conducted a warrantless search of a vehicle incident to arrest after the occupant

was handcuffed and locked in a patrol car, and the officers discovered cocaine.

. “The United States Supreme Court held that the search was unreasonable and that

police 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 another Fourth

Amendment exception applies).” Adams at ¶185, citing

.

{¶ 16} The Supreme Court of Ohio indicated that it did not have to determine

whether the search of Adams’ jacket was proper under Gant, because the search

predated Gant, and “Gant does not apply retroactively to a pre-Gant search that was

undertaken in good-faith reliance on the binding precedents at the time.” Id. at ¶ 186,

citing Davis v. United States, ___ U.S. ___,

,

(2011). Therefore, the Supreme Court held that the controlling case was New York v.

Belton,

,

,

(1981), which permitted the

warrantless search of a jacket in a vehicle after the occupants had all been removed.

Adams at ¶ 186, citing

. Accordingly, the court held that “[u]nder

Belton, the search of Adams’s jacket pocket in conjunction with the arrest of Landers was

constitutional.” Adams at ¶ 186. -9-

{¶ 17} While Adams declined to fully address the application of Gant, the court

indicated that the search of Adams’ jacket incident to Lander’s arrest would likely be

proper under Gant since the jacket was within Adams’ reach. Adams, Slip Opinion No.

, ___ N.E.3d ___ at ¶ 186. However, we note that in Adams, the jacket

searched was just within the immediate area of the arrestee at the time of the arrest as

opposed to being worn on the arrestee’s person as in the present case. We stress that

Gant does not address the search of a person; rather, Gant involved the search of the

area from which the defendant was arrested, specifically, the defendant’s vehicle.

. In Adams, the court did not discuss whether the holding in Gant should be

extended to cases that do not involve the search of a vehicle incident to arrest. Because

the holding in Gant is narrowly confined to the search of a vehicle incident to arrest, we

decline to extend it to the search in the present case, as this case involves the search of

an item that was on Frazee’s person.

{¶ 18} In so holding, we will follow the principle recently cited by the Supreme

Court of Ohio stating that “the right to search incident to arrest exists even if the item is

no longer accessible to the arrestee at the time of the search. * * * As long as the arrestee

has the item within his immediate control near the time of the arrest, the item can be

searched.” (Citations omitted.) Adams at ¶ 183; see, e.g., State v. Sharpe, 7th Dist.

Harrison No. 99 CA 510,

, *5 (June 30, 2000) (search of arrestee’s

backpack that he was wearing on his shoulder at the time of his arrest was a lawful search

incident to arrest even though the arresting officer searched the backpack after it had

been removed from arrestee’s possession and while the arrestee was in the cruiser);

State v. Washington, 10th Dist. Franklin No. 00AP-663,

, *3 (May 1, -10-

2001) (search of purse after arrestee was arrested and placed in a police cruiser was

lawful search incident to arrest because arrestee had control of purse at the time of her

arrest); compare State v. Myers,

,

(2d

Dist. 1997) (search of defendant’s purse after she was arrested and handcuffed was not

a lawful search incident to arrest because at the time of the defendant’s arrest the purse

was laying on the table and not on her person nor within the area of her immediate

control).

{¶ 19} A search that is conducted pursuant to a search incident to arrest may

extend to the personal effects of an arrestee. State v. Smith,

, 2009-

Ohio-6426,

, citing State v. Mathews,

,

(1976). This includes containers found on the arrestee’s person. United

States v. Robinson,

,

,

(1973)

(upholding search of closed cigarette package on arrestee’s person); State v. Jones,

,

(2d Dist. 1996) (opening packages removed from

arrestee’s ankles to inspect their contents was a proper search incident to a lawful arrest).

{¶ 20} In this case, it is undisputed that Frazee was lawfully arrested pursuant to

a warrant for his arrest. It is also undisputed that Frazee was wearing the coat that the

heroin was found in at the time he was stopped and detained by Eversole. After Eversole

advised Frazee that he was under arrest, Eversole permitted Frazee to remove the coat

and place it on the cruiser immediately before Eversole handcuffed Frazee and searched

his person. Therefore, the record clearly establishes that the jacket was worn by Frazee

at the time of his arrest, and thus was in Frazee’s “immediate control near the time of his

arrest.” See Adams, Slip Opinion No.

, ___ N.E.3d ___ at ¶ 183; Sharpe -11-

at *5 (“the mere fact that a backpack was momentarily placed on the hood of the police

cruiser prior to the actual search is inconsequential, as the backpack was only placed a

few feet away from appellee and the search occurred within moments of the point in time

it was removed from appellee’s shoulder”). In following Adams and similar precedents,

we find that the search of Frazee’s coat and its contents falls under the scope of a search

incident to arrest, as the search incident to arrest exception applies even when an item is

not accessible to the arrestee at the time of the search, and the item only needs to be in

the arrestee’s immediate control near the time of his arrest, such as the case here.

Inventory Search and Inevitable Discovery Doctrine

{¶ 21} Even if the search of Frazee’s coat and its contents did not qualify as a

search incident to arrest, we agree with the State’s argument that the heroin would still

be admissible because it would have been inevitably discovered by law enforcement

during a routine inventory search when Frazee was booked into jail. Under the inevitable

discovery doctrine, evidence obtained unconstitutionally is admissible if it “would have

been ultimately or inevitably discovered during the course of a lawful investigation.”

State v. Perkins,

,

(1985). “[T]he burden is on

the prosecution to demonstrate, within a reasonable probability, that law enforcement

would have discovered the evidence in question apart from the unlawful conduct.” State

v. Coston,

,

,

(10th Dist.),

citing

.

{¶ 22} Frazee contends the State cannot rely on the inevitable discovery doctrine

because the State failed to present evidence establishing that Frazee’s coat would have -12-

been subject to an inventory search, as Eversole failed to testify regarding the inventory

procedure.

{¶ 23} We note that “it is reasonable for police to search any container or article

on a defendant’s person * * * in accordance with established inventory procedures.”

Smith,

,

,

, citing Illinois v.

Lafayette,

,

,

(1983). In State v. Combs, 2d

Dist. Montgomery No. 22346,

, the officers who appeared at a

suppression hearing failed to testify regarding the procedure used for inventory searches

of an arrested person and their personal effects. Id. at ¶ 6. Nevertheless, despite this

lack of testimony, we held that:

[I]t is sufficiently clear that inventory searches of arrested persons and the

personalty that they intend to bring with them into the county jail are a

customary and typical procedure in Montgomery County. Furthermore, for

obvious reasons of safety, the police are not obligated to return an item of

personalty to a lawfully arrested individual sitting in a police cruiser without

having first inspected it. A wallet can hide any number of items that could

be hazardous to police, such as a small pocket-knife or razor blade.

Finally, even had the search of the wallet been conducted at the county jail

by jail employees, the search inevitably would have revealed that the wallet

contained contraband. Thus, the search was a valid administrative

inventory search pursuant to Illinois v. Lafayette (1983),

,

.

Combs at ¶ 6. -13-

{¶ 24} In this case, the record indicates that Frazee requested to bring his coat

with him to the Montgomery County Jail. Because it is customary and typical in

Montgomery County for the arrestee and their personal effects to be subject to an

inventory search, the heroin inside Frazee’s coat would have been inevitably discovered

when he was booked into jail. In following Combs, we find the inevitable discovery

doctrine applies even without specific testimony from Eversole discussing the inventory

procedure.

Conclusion

{¶ 25} The trial court erred in suppressing the heroin found inside Frazee’s coat

pocket, as the heroin was lawfully discovered through a search incident to arrest, and

also would have been inevitably discovered during an inventory search. Accordingly, the

State’s sole assignment of error is sustained and the judgment of the trial court is reversed

and remanded for further proceedings.

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

FROELICH, P.J., concurs in judgment.

DONOVAN, J., concurring: {¶ 26} In my view, the majority embraces too expansive a view of the search

incident to arrest exception by utilizing broad language which is unnecessary. I would

not rely upon the Adams case, as the suspect therein was initially only in the immediate

area of the jacket, it was not on his person when the police encountered him. I also

conclude it is wrong to rely upon an inevitable discovery exception which is wholly

undeveloped on this record. -14-

{¶ 27} Under Robinson, officers may presume that a particular arrestee – even one

arrested for a nonviolent traffic offense – is armed.

,

,

. But officers may not presume that this arrestee can access items safely

reduced to law enforcement’s exclusive possession and control – that is an entirely

different presumption, which the Supreme Court has never approved. See United States

v. Chadwick,

,

,

(1977) (“Once law

enforcement officers have reduced luggage or other personal property not immediately

associated with the person of the arrestee to their exclusive control, and there is no longer

any danger that the arrestee might gain access to the property to seize a weapon or

destroy evidence, a search of that property is no longer an incident of the arrest.”),

abrogated on other grounds by California v. Acevedo,

,

,

(1991).

{¶ 28} The Supreme Court has always described Robinson searches – that is,

searches of the person incident to arrest – in extremely narrow terms. Robinson clearly

permits a search “of an arrestee’s pockets,” but leaves open the question of what other

“physical items” might be searchable under this exception.

{¶ 29} However, the coat searched in this case is a personal item which was on

Frazee’s person immediately prior to his physical arrest. It lay on the hood of the cruiser

which did not alter its status as a personal effect. Since it was taken into custody as part

of Frazee’s person, his ability to reach the coat while he was in the cruiser is irrelevant.

Furthermore, Gant does not restrict the lawful search of Frazee’s coat merely because

the coat was not within his immediate reach.

{¶ 30} Lastly, it would appear the trial court went astray in adopting flawed legal -15-

analysis as proposed by Frazee in his post-hearing brief. The conclusion that “Deputy

Eversole acquiesced to the search incident to arrest exception” is without legal and factual

support in this record.

{¶ 31} Finally, for reasons distinguishable from those upon which the majority

relies, I would reverse.

..........

Copies mailed to:

Mathias H. Heck, Jr. Dylan Smearcheck James M. Calhoun, II Hon. Dennis J. Langer