Opinion
No. CR91-6217.
Decided October 4, 1991.
Michael C. Mota, Assistant Prosecuting Attorney, for the state.
Sharfman, Cohen, Schwab Novak and S. Scott Schwab, for defendant Andrew E. Peay.
I
This case is now before the court on defendant Peay's motion to suppress evidence filed on August 8, 1991. An evidentiary hearing was held on August 15, 1991, when testimony was taken from Deputy Kenneth Garrett and Detective Robert Leist, both of the Lucas County Sheriff's Department. After the hearing, both parties were instructed to file supporting briefs. The state of Ohio filed its memorandum of law on August 27, 1991. Defendant's reply was filed on September 10, 1991, and a supplemental reply was filed on September 12, 1991. After thorough consideration of the evidence and review of the supporting authorities, the court grants defendant's motion to suppress evidence.
II
Early Monday evening on May 6, 1991, the defendant, Andrew E. Peay, was driving home. About one-half mile from his residence off Corduroy Road in Jerusalem Township, Lucas County, Ohio, he was stopped by Deputy Garrett. The deputy had been on routine patrol when he spotted a black, 1987 Toyota pickup truck without a license plate. The truck, occupied by Peay and his passenger, Leslie Burnette, a codefendant in this case, had an expired thirty-day tag in the rear window. Garrett issued Peay a citation for this offense and for excessive windshield tint, both minor misdemeanors. According to the deputy, he then intended to impound the pickup for having no registration. After issuing the citations, the deputy placed both defendants in the rear of his patrol cruiser while he performed an inventory search of the truck. That search uncovered a loaded 9mm handgun and a quantity of marijuana. Garrett testified that he then searched and arrested the defendants.
Deputy Garrett also testified that he had received information from a confidential informant on the Saturday or Sunday before the stop that Peay was selling marijuana. Garrett also knew Peay and knew that he owned a firearm. On cross-examination, Garrett admitted his suspicions of Peay and his intent that "if I had the opportunity to stop him I would."
III
No one disputes that Deputy Garrett had authority to initially stop Peay's pickup truck. Failure to display a license plate is a violation of R.C. 4503.21, a minor misdemeanor. The parties disagree over the import of what the deputy did after he issued the citations.
Peay claims that he and Burnette were placed under arrest immediately when Garrett put them in the rear passenger seat of the police cruiser, which they could not leave. Ohio law does not normally allow an officer to arrest a suspect for a minor misdemeanor violation. R.C. 2935.26(A) states:
"Notwithstanding any other provision of the Revised Code, when a law enforcement officer is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the officer shall not arrest the person, but shall issue a citation, unless one of the following applies:
"(1) The offender requires medical care or is unable to provide for his own safety.
"(2) The offender cannot or will not offer satisfactory evidence of his identity.
"(3) The offender refuses to sign the citation.
"(4) The offender has previously been issued a citation for the commission of that misdemeanor and has failed to do one of the following:
"(a) Appear at the time and place stated in the citation;
"(b) Comply with division (C) of this section." (Emphasis added.)
Subdivision (C) deals with methods of responding to the citation in lieu of appearing at the time and place stated in the citation.
The state of Ohio has not averred, and at the hearing did not establish, any conditions allowing an arrest for a minor misdemeanor. Deputy Garrett lacked the authority to arrest Peay for minor misdemeanors. Consequently, there was no basis for any search incident to a lawful arrest. Furthermore, the statute has been interpreted to preclude arrest and to guarantee personal freedom given by the legislature where no such right existed before. State v. Slatter (1981), 66 Ohio St.2d 452, 458, 20 O.O.3d 383, 387, 423 N.E.2d 100, 104.
Garrett, however, testified that Peay was not under arrest until after he discovered the weapon and drugs in Peay's truck. The state relies on State v. Darrah (1980), 64 Ohio St.2d 22, 26, 18 O.O.3d 193, 195, 412 N.E.2d 1328, 1330, which sets forth the elements for an arrest:
"* * * An arrest occurs when the following four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested. * * *" (Emphasis added.)
The state contends that the first of these requisite elements, Deputy Garrett's intent to arrest Peay, was not present. As such, it argues no arrest was made before Garrett discovered contraband. According to Garrett, the pickup was to be towed for the minor misdemeanors and the search made was simply an "inventory" search.
Although the state was invited to cite authority for the basis of the "policy" which Deputy Garrett testified permitted towing a vehicle under these circumstances or any other authority for such an inventory search, none was cited.
Even if Deputy Garrett, in his own mind, did not intend to arrest Peay before finding the marijuana and weapons in the truck, there was no probable cause to search the Peay vehicle. Garrett acknowledged that both Peay and Burnette were cooperative. There were no furtive gestures, attempts to escape, or any other basis for probable cause to search the truck. There was no reason for Garrett to do anything other than follow the statute, which required him to simply issue the citations.
During his testimony, Deputy Garrett frankly explained his suspicions that Andrew Peay was selling marijuana. He had been told this by a confidential informant. Detective Robert Leist testified that he had also spoken to Garrett about Andrew Peay on May 5, 1991, the day before this incident. On cross-examination, Deputy Garrett admitted that he had no search warrant and that he had not sought one. Instead, Deputy Garrett waited for an opportunity to stop Andrew Peay.
The opportunity which presented itself, however, did not allow the deputy to search the pickup. The search cannot be justified as based upon probable cause or as incident to a lawful arrest. The motion to suppress must be granted.
Journal Entry
Defendant's motion to suppress evidence is GRANTED. Evidence of a 9mm handgun and quantity of marijuana is ORDERED suppressed. This matter is continued for further proceedings to Wednesday, October 9, 1991.
Reporter's Note: A nolle prosequi was entered in this case on October 11, 1991.
Judgment accordingly.