[T]he trial court’s decision to overrule appellant’s motion to suppress on the basis of these facts was supported by the applicable law. Accordingly, appellant’s first assignment of error is found not well- taken.

State v. Howe

2021 – Ohio – 1676

Sixth District

Fulton County, Ohio

May 14, 2021

On Thursday October 17, 2019, at approximately 4:00 a.m., Deputy Joshua Rodriguez of the Fulton County Sheriff’s Office was informed by a Deputy Pennington that a woman named Ms. Jennifer Howe was sitting on the sidewalk on the west side of the Country Corral gas station, 7910 State Route 109, Delta, Fulton County, Ohio.

Ms. Howe and her felony-filled purse was sitting outside of the Country Corral gas station at 7910 State Route 109, Delta, in Fulton County, Ohio.

Deputy Rodriguez believed that Deputy Pennington received this information from Delta Police Department Sergeant Walker, who had gone to the Country Corral to use the facilities and to make a purchase. It was Deputy Rodriguez’s further understanding that Sgt. Walker was informed by store clerks that a woman had been in the Country Corral’s bathroom for quite some time, and that the clerks were concerned about the woman’s welfare. Dep. Rodriguez did not know how Dep. Pennington or Sgt. Walker had come to identify the woman at issue as Ms. Howe.

Upon receiving Ms. Howe’s name, and prior to making contact with her, Dep. Rodriguez ran her name through his patrol car’s computer system, which is connected to a law enforcement database, and discovered that she had active warrants for her arrest. Dep. Rodriguez was also able to see a driver’s license photo of Ms. Howe, so he knew who he was looking for when he responded to the Country Corral.

After checking his patrol car’s computer system, and within five minutes of receiving the information from Dep. Pennington, Dep. Rodriguez arrived at the Country Corral. Upon his arrival, Dep. Rodriguez saw a blonde female sitting alone on the sidewalk, on the west side of the property. The woman had with her a duffle bag and a purse.   Soon Dep. Rodriguez will learn the purse is filled with felonious contraband. When Dep. Rodriguez saw the woman’s face, he recognized her as being Ms. Howe from the driver’s license photo. Dep. Rodriguez approached Ms. Howe and asked her if she was okay. She indicated that she was. During the course of this “casual conversation”, Ms. Howe provided her name and verified her information for Dep. Rodriguez. Dep. Rodriguez then double-checked the information with dispatch, who verified that Ms. Howe had outstanding warrants. At that point, Dep. Rodriguez arrested Ms. Howe.

Dep. Rodriguez conducted a pat down for weapons and Ms. Howe was placed in the back of his patrol car. At that point, Dep. Rodriguez and Dep. Pennington — who had recently arrived on the scene — searched Ms. Howe’s bags. As the search was being conducted, Ms. Howe stated that she had marijuana and instruments that are used to smoke marijuana in a baggie that she thought was in the zipper portion of her purse. When the deputies looked there and nothing was found, Ms. Howe provided that they might be inside of the purse. As law enforcement professionals can often explain, marijuana consumers often forget the location of their pipes and weed.

The deputies looked inside of the purse and found a tin containing a substance that they suspected was methamphetamine. Ms. Howe confirmed that the substance was crystal methamphetamine but claimed that it belonged to her boyfriend. Dep. Rodriguez initially testified that Ms. Howe had been Mirandized prior to making the statement identifying the substance found as crystal meth and before claiming that it belonged to her boyfriend.  But he later made clear that he could not recall exactly when he provided Ms. Howe with Miranda warnings. He further made clear that, regardless of Ms. Howe’s statements and whether they were provided prior to Ms. Howe being Mirandized, he would have searched Ms. Howe’s purse and duffle bag incident to the arrest on the warrants, as required by the department’s policy.

Ms. Howe filed Motion to Suppress the methamphetamine and the trial judge denied the motion stating that Dep. Rodriguez did not violate the Fourth Amendment when he searched Ms. Howe’s backpack and purse incident to arrest.  Ms. Howe, in doubt that the trial judge was correct, appealed to the Sixth District Appellate Court.  The Sixth District evaluated the deputy’s actions and affirmed the trial judge.

The appellate court determined the search was lawful based primarily on two cases; a U.S. Supreme Court case and a Supreme Court of Ohio case.

In 2009 the U.S. Supreme Court held “[A] law enforcement officer who has made a lawful arrest may conduct a warrantless search of the arrestee’s person and of the area within the arrestee’s immediate control, which includes “the area from within which he might gain possession of a weapon or destructible evidence.” Arizona v. Gant, 556 U.S. 332, 339 (2009).  For more on the Gant case see Law Enforcement Gant Search Vehicles Incident to Arrest.

In 2015 the Supreme Court of Ohio held “[T]he right to search incident to arrest exists even if the item is no longer accessible to the arrestee at the time of the search[;] [a]s 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, 144 Ohio St.3d 429 (2015).

Based on the aforementioned cases the Sixth District Appellate Court held “[T]he trial court’s decision to overrule appellant’s motion to suppress on the basis of these facts was supported by the applicable law. Accordingly, appellant’s first assignment of error is found not well- taken.”.  This is legalese meaning that the search by Dep. Rodriguez was lawful!

Information for this article was obtained from State v. Howe, 2021 – Ohio – 1676.  The case was issued by the Sixth District Appellate Court and is binding in Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood Counties.

Lessons Learned:

  1. The Search Incident to Arrest Doctrine was established on December 11, 1973 when the U.S. Supreme Court in S. v. Robinson, 414 U.S. 218 (1973) held “It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.”. Id at 236.
  1. The Search Incident to Arrest Doctrine would later be extended to containers on June 20, 1983 in Illinois v. Lafayette, 462 U.S. 640 (1983) when the U.S. Supreme Court held “[I]t is not unreasonable for police, as a part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.”. Id at 649. When the court applies the word ‘possession’ it means both actual and constructive possession.  For more on constructive possession see Why was Mickey’s Mouse Felonious?, Why was Ms. Batdorf’s Batman Bag Felonious?, Can a Firearm Left in a Laundry Basket Nestled Under Dirty Clothes by a Teenager be Constructively Possessed by the Dad?,   Did Josh Constructively Possess the Bag of Meth Under his Buttocks?
  1. Howe’s defense team made an issue as to the timing of her Miranda warning being read and when she made incriminating statements. Since the methamphetamine was found incident to arrest there was not a need to interrogate Ms. Howe and made the defense team Miranda timing argument null and void.
  1. Howe also argued that the methamphetamine was her boyfriend’s and not her own, as she was simply being benevolent by carrying his felony for him. Unfortunately for Ms. Howe, the unidentified boyfriend was unavailable to come forward during any of the many court proceedings to claim lawful ownership of the methamphetamine.  So Ms. Howe’s benevolence led to her own felony conviction.
  1. Deputy Rodriguez and Deputy Pennington should be commended for their diligent work to assure Ms. Howe was not in danger, conducted a warrant check prior to making contact and following the Fulton County Sheriff’s Office Standard Operating Procedures that resulted in a positive appellate decision. Well done!

Does your agency train on the Search Incident to Arrest Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.