State v. Murrell

[This decision has been published in Ohio Official Reports at 94 Ohio St.3d 489.]

THE STATE OF OHIO, APPELLEE, v. MURRELL, APPELLANT.

[Cite as State v. Murrell, 2002-Ohio-1483.]

Criminal law—Search and seizure—When police officer has made a lawful

custodial arrest of the occupant of an automobile, the officer may, as a

contemporaneous incident of that arrest, search the passenger

compartment of that automobile.

(No. 00-1757—Submitted October 17, 2001 at the Greene County Session—

Decided April 3, 2002.)

APPEAL from the Court of Appeals for Hamilton County, No. C-000103.

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SYLLABUS OF THE COURT

When a police officer has made a lawful custodial arrest of the occupant of an

automobile, the officer may, as a contemporaneous incident of that arrest,

search the passenger compartment of that automobile. (New York v. Belton

[1981], 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775,

followed; State v. Brown [1992], 63 Ohio St.3d 349, 588 N.E.2d 113,

syllabus, overruled; Fourth Amendment to the United States Constitution

and Section 14, Article I of the Ohio Constitution, harmonized.)

__________________

ALICE ROBIE RESNICK, J.

{¶ 1} This case requires us to consider the allowable scope of an automobile

search incident to the arrest of an occupant of the vehicle. For the reasons that

follow, we overrule this court’s decision in State v. Brown (1992), 63 Ohio St.3d

349, 588 N.E.2d 113, and therefore affirm the judgment of the court of appeals.

SUPREME COURT OF OHIO

I

Facts and Procedural History

{¶ 2} On September 15, 1999, a Cincinnati police officer stopped an

automobile driven by defendant-appellant, Marvin Murrell, on a street with a posted

speed limit of thirty-five miles per hour after the officer’s laser device registered

appellant’s speed at forty-nine miles per hour. The officer ran a check on

appellant’s license, which showed that there was an outstanding warrant for

appellant’s arrest for failure to pay child support. The officer arrested appellant,

handcuffed him, and placed him in the back seat of the police car.

{¶ 3} The officer then proceeded to search appellant’s vehicle. On the

floorboard in front of the driver’s seat, the officer found a small cloth bag. He

opened it and found crack cocaine and powdered cocaine. The officer then also

arrested appellant for drug possession.

{¶ 4} Appellant was indicted on two counts of possession of cocaine. He

filed a motion to suppress the results of the search, and the trial court held a hearing

on the motion on November 19, 1999. The arresting officer provided the only

testimony at the hearing, giving his account of the stop and arrest. The officer

testified that the traffic stop was a routine one, that he never felt that he was in any

danger during the course of the stop, that he never sought appellant’s permission to

search the vehicle, and that he would not have impounded the car (and therefore no

inventory search of the vehicle would have occurred) if he had not found the

cocaine.

{¶ 5} On February 10, 2000, the trial court granted the motion to suppress

in a handwritten entry that gave no reasons for the ruling. The trial court apparently

relied on this court’s decision in Brown, 63 Ohio St.3d 349, 588 N.E.2d 113, in

which this court held at the syllabus that “[a] police officer may not open a small,

closed container found inside an automobile’s glove compartment solely as a search

incident to the driver’s arrest for a traffic violation, after the officer has the

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suspect—and sole occupant of the vehicle—under control in the police cruiser.

(New York v. Belton [1981], 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768,

distinguished; the Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution, applied.)”

{¶ 6} The state appealed pursuant to R.C. 2945.67, certifying that the appeal

was not taken for the purpose of delay and that the trial court’s ruling rendered the

state’s proof so weak that any reasonable possibility of effective prosecution was

destroyed. See Crim.R. 12(K) (formerly Crim.R. 12[J]).

{¶ 7} The court of appeals reversed the judgment of the trial court,

distinguishing the situation before it from that in Brown. The court of appeals

focused on the fact that Brown’s syllabus specifically mentioned arrest for a “traffic

violation,” and found that Brown did not apply because appellant was not arrested

for a traffic violation but for nonpayment of child support. While acknowledging

that the officer did not have probable cause to believe that there was contraband in

the vehicle, the court of appeals upheld the search pursuant to the United States

Supreme Court’s Belton decision.

{¶ 8} The cause is now before this court pursuant to the allowance of a

discretionary appeal.

II

Search of Automobile Incident to Arrest of Occupant

{¶ 9} In Belton, 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775, the

United States Supreme Court articulated a specific rule for automobile searches

within the “search incident to arrest” exception to the warrant requirement of the

Fourth Amendment to the United States Constitution.1 The Belton court held that

1. The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

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“when a policeman has made a lawful custodial arrest of the occupant of an

automobile, he may, as a contemporaneous incident of that arrest, search the

passenger compartment of that automobile.” (Footnotes omitted.) Earlier, the

Supreme Court in Chimel v. California (1969), 395 U.S. 752, 762-763, 89 S.Ct.

2034, 2040, 23 L.Ed.2d 685, 694, a case not involving a motor vehicle, had held

that when a police officer makes a lawful custodial arrest, a warrantless search of

the person arrested and of the immediate surrounding area is justified to discover

any weapons that the arrestee might seek to use and to prevent the concealment or

destruction of evidence.

{¶ 10} The Supreme Court viewed its holding in Belton as the establishment

of a bright-line rule that extended the principles of Chimel to arrest situations

involving motor vehicles. The Supreme Court in Belton, in explaining why

searching a closed container found in the passenger area of the vehicle is also

permissible, further illuminated its reasoning, stating that “[i]t follows [from

Chimel] that the police may also examine the contents of any containers found

within the passenger compartment, for if the passenger compartment is within reach

of the arrestee, so also will containers in it be within his reach. * * * Such a

container may, of course, be searched whether it is open or closed, since the

justification for the search is not that the arrestee has no privacy interest in the

container, but that the lawful custodial arrest justifies the infringement of any

privacy interest the arrestee may have.” 453 U.S. at 460-461, 101 S.Ct. at 2864, 69

L.Ed.2d at 775.

{¶ 11} In support of its decision to apply a bright-line rule, the Belton court

stated that “as one commentator has pointed out, the protection of the Fourth and

Fourteenth Amendments ‘can only be realized if the police are acting under a set of

rules which, in most instances, makes it possible to reach a correct determination

beforehand as to whether an invasion of privacy is justified in the interest of law

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enforcement.’ LaFave, ‘Case-By-Case Adjudication’ versus ‘Standardized

Procedures’: The Robinson Dilemma, 1974 S.Ct.Rev. 127, 142.

“* * *

“In short, ‘[a] single, familiar standard is essential to guide police officers,

who have only limited time and expertise to reflect on and balance the social and

individual interests involved in the specific circumstances they confront.’

Dunaway v. New York [1979], 442 U.S. 200, 213-214 [99 S.Ct. 2248, 2257, 60

L.Ed.2d 824, 836].” 453 U.S. at 458, 101 S.Ct. at 2863, 69 L.Ed.2d at 773-774.

{¶ 12} The Belton court then reviewed cases from other courts that had

encountered the issue before it, and observed that “[w]hile the Chimel case

established that a search incident to an arrest may not stray beyond the area within

the immediate control of the arrestee, courts have found no workable definition of

‘the area within the immediate control of the arrestee’ when that area arguably

includes the interior of an automobile and the arrestee is its recent occupant. Our

reading of the cases suggests the generalization that articles inside the relatively

narrow compass of the passenger compartment of an automobile are in fact

generally, even if not inevitably, within ‘the area into which an arrestee might reach

in order to grab a weapon or evidentiary [item].’ Chimel, 395 U.S. at 763 [89 S.Ct.

at 2040, 23 L.Ed.2d at 694]. In order to establish the workable rule this category

of cases requires, we read Chimel’s definition of the limits of the area that may be

searched in light of that generalization.” 453 U.S. at 460, 101 S.Ct. at 2864, 69

L.Ed.2d at 774-775.

{¶ 13} With this court’s decision in Brown, 63 Ohio St.3d 349, 588 N.E.2d

113, Ohio follows a different rule on automobile searches incident to an arrest than

was established in Belton. The Brown opinion actually set forth two separate

rationales for not following Belton. Although the syllabus in Brown and the text of

the opinion (see id. at 351-352, 588 N.E.2d at 115) assert that the court

“distinguishe[s]” the situation in that case from the situation in Belton, this court in

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Brown also stated, “If Belton does stand for the proposition that a police officer

may conduct a detailed search of an automobile solely because he has arrested one

of its occupants, on any charge, we decline to adopt its rule.” (Emphasis sic.) Id.

at 352, 588 N.E.2d at 115. The Brown opinion then included a footnote to the effect

that if the two cases were not distinguishable, the decision to decline to adopt

Belton’s rule was based on Section 14, Article I of the Ohio Constitution2: “

‘Individual States may surely construe their own constitutions as imposing more

stringent constraints on police conduct than does the Federal Constitution.’ ” Id. at

fn. 3, quoting California v. Greenwood (1988), 486 U.S. 35, 43, 108 S.Ct. 1625,

1630, 100 L.Ed.2d 30, 39. See, also, Brown at 352, 588 N.E.2d at 115 (stating that

the warrantless search of the automobile violated the Ohio Constitution).

{¶ 14} A close reading of both Belton and Brown reveals that, although the

Brown opinion attempted to distinguish that case from Belton based on the differing

facts of the two cases, the attempt was unfounded. While it appears clear that there

was probable cause for the search in Belton, while there was not in Brown (the point

upon which the opinion in Brown relied to distinguish the two, id. at 351-352, 588

N.E.2d at 115), the United States Supreme Court in Belton deliberately chose not

to analyze the situation before it under the automobile exception to the warrant

requirement, which is based on probable cause. Id., 453 U.S. at 462-463, 101 S.Ct.

at 2865, 69 L.Ed.2d at 776, fn. 6 (“Because of this disposition of the case, there is

no need here to consider whether the search and seizure were permissible under the

so-called ‘automobile exception.’ ”). Instead, the Belton court purposely

determined to craft a bright-line rule of sufficient scope to encompass the facts of

Brown, as well as those of the case sub judice.

2. Section 14, Article I of the Ohio Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and possessions,

against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but

upon probable cause, supported by oath or affirmation, particularly describing the place to be

searched, and the person and things to be seized.”

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{¶ 15} Given these considerations, it becomes apparent that this court’s

statement in Brown, 63 Ohio St.3d at 352, 588 N.E.2d at 115, that “the warrantless

search of Brown’s automobile was unreasonable and violated the Fourth

Amendment to the United States Constitution and Section 14, Article I of the Ohio

Constitution” was, at most, only partially supportable. Since Belton should not

have been distinguished, the United States Supreme Court’s decision in Belton as

to the Fourth Amendment was binding on this court, and this court should have held

that the Fourth Amendment was not violated by the search in Brown. Therefore,

the only possibly justifiable rationale behind this court’s decision in Brown is the

alternative reasoning set forth in that case—that the search was inconsistent with

Section 14, Article I of the Ohio Constitution.

III

State v. Brown Reassessed

{¶ 16} The resolution of the case before us thus turns on a consideration of

this court’s decision in Brown, which can accurately be said to have relied on

Section 14, Article I to decline to give full effect to Belton. Within that

consideration, and depending on its outcome, a further issue potentially could arise

in the circumstances here, based on the court of appeals’ decision to distinguish

Brown—if Brown should be reaffirmed, what should its scope be?

{¶ 17} The Fourth Amendment and Section 14, Article I contain virtually

identical language, with both prohibiting unreasonable searches and seizures and

both imposing a warrant requirement. See State v. Robinette (1997), 80 Ohio St.3d

234, 238, 685 N.E.2d 762, 766-767. For that reason, this court observed in

Robinette that, for some time, it “has interpreted Section 14, Article I of the Ohio

Constitution as affording the same protection as the Fourth Amendment.” Id. at

238, 685 N.E.2d at 767. See, also, State v. Orr (2001), 91 Ohio St.3d 389, 391, 745

N.E.2d 1036, 1038-1039. In making that point, this court in Robinette cited a

number of cases, including State v. Geraldo (1981), 68 Ohio St.2d 120, 125-126,

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22 O.O.3d 366, 369-370, 429 N.E.2d 141, 145-146 (reach of Section 14, Article I

is coextensive with that of Fourth Amendment); and State v. Andrews (1991), 57

Ohio St.3d 86, 87, 565 N.E.2d 1271, 1273, fn. 1 (this court has interpreted Section

14, Article I to protect the same interests and in a manner consistent with the Fourth

Amendment).

{¶ 18} After reviewing the cases, this court in Robinette, 80 Ohio St.3d at

239, 685 N.E.2d at 767, determined that “we should harmonize our interpretation

of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, unless

there are persuasive reasons to find otherwise.” This court in Robinette obviously

left open the possibility that, depending on the circumstances, this court may decide

to give independent effect to Section 14, Article I in the appropriate case.

{¶ 19} In actually relying on Section 14, Article I to find that the evidence

was inadmissible on the facts before it, the Brown court did not cite any authorities,

including those cited in Robinette that appear inconsistent, for its decision to

interpret Section 14, Article I more stringently than the Fourth Amendment. Also,

Robinette, decided more than five years after Brown, did not cite Brown in its

consideration of when Section 14, Article I might be interpreted differently from

the Fourth Amendment.

{¶ 20} As several of the briefs in this case indicate, most jurisdictions,

unlike Ohio in Brown, follow the Belton rule regarding automobile searches

incident to a lawful arrest, even where the arrestee has been handcuffed and placed

in a police vehicle at the time of the search. See, e.g., State v. Fernon (2000), 133

Md.App. 41, 57-58, 754 A.2d 463, 472; United States v. Doward (C.A.1, 1994), 41

F.3d 789, 791-792, fn. 1; United States v. White (C.A.6, 1989), 871 F.2d 41, 44.

Included within the group of states that follow Belton are states with specific

constitutional provisions that, like Ohio’s Section 14, Article I, essentially mirror

the Fourth Amendment. See, e.g., State v. Charpentier (1998), 131 Idaho 649, 962

P.2d 1033; State v. Fry (1986), 131 Wis.2d 153, 171-172, 388 N.W.2d 565, 573.

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While a few states, such as Ohio in Brown, have rejected Belton in part, most states

have chosen to fully embrace Belton’s bright-line rule.

{¶ 21} In light of the standard set forth in Robinette, we take this

opportunity to review the propriety of this court’s decision in Brown. To the extent

that Brown apparently found persuasive reasons not to harmonize Section 14,

Article I with the Fourth Amendment in the situation before it, we believe that the

time has come to reassess Brown and the assumptions upon which that decision was

based.

{¶ 22} As a starting point, it is critical to recognize that Belton’s rule applies

only when there is already a lawful custodial arrest. Concerns about a possible lack

of probable cause to conduct a search in a Belton situation are eased by the fact that

probable cause must have been present to arrest the occupant of the vehicle in the

first place. In addition, as the Belton holding explicitly states, a Belton search must

be “contemporaneous” with the arrest, occurring at or very near the time of the

arrest. Id., 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775. Furthermore, on

its face, Belton’s rule applies only if an arrest is “custodial.” Id. The United States

Supreme Court, in Knowles v. Iowa (1998), 525 U.S. 113, 118-119, 119 S.Ct. 484,

488, 142 L.Ed.2d 492, 497-498, found that a “search incident to citation,” in which

a police officer searched a vehicle incident to the issuance of a citation in lieu of an

arrest in a routine traffic stop, violated the Fourth Amendment when there was no

prior arrest to justify the search.3 Belton does not authorize indiscriminate fishing

3. The United States Supreme Court recently reiterated its commitment to Belton’s bright-line rule

in Florida v. Thomas (2001), 532 U.S. 774, 121 S.Ct. 1905, 150 L.Ed.2d 1. In that case, the Supreme

Court granted certiorari “to consider whether [the Belton] rule is limited to situations in which the

officer initiates contact with the occupant of a vehicle while that person remains inside the vehicle.”

Id. at ___, 121 S.Ct. at 1908, 150 L.Ed.2d at 5. However, the court never reached that issue on the

merits, holding that the case did not involve a final judgment or decree from the court below and

that the case did not fit any category that would nevertheless allow it to be treated as final for

jurisdictional purposes, and so dismissed the writ for want of jurisdiction. Id. at ___, 121 S.Ct. at

1909-1910, 150 L.Ed.2d at 6. The specific issue in Thomas is not relevant to the case sub judice.

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expeditions; only motor vehicles very recently occupied by those who have already

been lawfully arrested are subject to a Belton search.

{¶ 23} The Belton court reached a calculated conclusion that a search of the

motor vehicle incident to arrest in this situation is a reasonable one, justified

principally by concerns for officer safety and preserving evidence, and the

advantages of having a bright-line rule in such situations. We find it significant

that Justice Stewart, who wrote the majority opinion in Belton, also wrote the

majority opinion in Chimel, which established strict limitations on the “search

incident to arrest” exception, and which reversed the conviction at issue in that case

as based on a search the Chimel court determined to be unreasonable. See 395 U.S.

at 768, 89 S.Ct. at 2043, 23 L.Ed.2d at 697. Obviously, Justice Stewart and the

other justices in the majority in Belton believed that the specific concerns at issue

in that case justified extension of the Chimel rule to cases involving an arrest of the

occupant of a motor vehicle. Both Chimel and Belton are seminal Fourth

Amendment decisions that contribute to a comprehensive jurisprudence regulating

what is acceptable police conduct and what is not in warrantless searches incident

to an arrest.

{¶ 24} We believe that the same considerations that led the Belton court to

establish its bright-line rule justify the adoption today of that rule by this court. We

now conclude that Brown was erroneously decided, and that this court in Brown

failed to appreciate the practical advantages underlying Belton’s bright-line rule.

The case before us and Brown do not present persuasive reasons to depart from the

principle that Section 14, Article I and the Fourth Amendment should be

harmonized whenever possible.

{¶ 25} For all the foregoing reasons, we conclude that in the circumstances

before us we should harmonize the Fourth Amendment and Section 14, Article I of

the Ohio Constitution. We thus overrule Brown and its syllabus paragraph.

Consistent with Belton, we hold that when a police officer has made a lawful

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custodial arrest of the occupant of an automobile, the officer may, as a

contemporaneous incident of that arrest, search the passenger compartment of that

automobile. Under our holding, the warrantless search of appellant’s vehicle did

not violate the Fourth Amendment or Section 14, Article I.

{¶ 26} Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.

MOYER, C.J., and PFEIFER, J., dissent.

__________________

MOYER, C.J., dissenting.

{¶ 27} I respectfully dissent from the majority’s conclusion that this court

must overrule State v. Brown (1992), 63 Ohio St.3d 349, 588 N.E.2d 113, for the

sole purpose of aligning our jurisprudence with that of the United States Supreme

Court. For the reasons that follow, I conclude that the trial court was correct in

granting the motion to suppress based upon this court’s decision in Brown.

{¶ 28} The overarching question, which the majority fails to satisfactorily

answer, is why this court needs to reverse itself by overruling Brown, and in doing

so, adopt the United States Supreme Court’s bright-line rule announced in Belton.

“ ‘[S]tare decisis is a principle of policy and not a mechanical formula of adherence

to the latest decision.’ ” Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio

St.3d 244, 257, 617 N.E.2d 1052 (Moyer, C.J., dissenting, quoting Helvering v.

Hallock [1940], 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604). However, this

court has also observed that “ ‘any departure from the doctrine of stare decisis

demands special justification.’ ” Wampler v. Higgins (2001), 93 Ohio St.3d 111,

120, 752 N.E.2d 962, quoting Patterson v. McLean Credit Union (1989), 491 U.S.

164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132. The majority offers no special

justification for overruling the unanimous decision in Brown.

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{¶ 29} The majority relies on the United States Supreme Court’s holding in

New York v. Belton (1981), 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, as

justification to overrule Brown. In Belton, the court discerned a need for a bright-

line rule and held that “when a policeman has made a lawful custodial arrest of the

occupant of an automobile, he may, as a contemporaneous incident of that arrest,

search the passenger compartment of that automobile.” (Footnote omitted.) Id. at

460, 101 S.Ct. 2860, 69 L.Ed.2d 768. The court thereby concluded that such a

search was reasonable under the Fourth Amendment.

{¶ 30} The Belton court derived its bright-line rule from its decision in

Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

However, Chimel involved a search incident to an arrest in a residence, not an

automobile. The Chimel court held that, in a residential setting, once an arrest is

made, police officers may search the arrestee and the area within the arrestee’s

immediate control. Id. at 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685. The court

concluded that a search of the immediate area after the arrest was justified “ ‘by the

need to seize weapons and other things which might be used to assault an officer or

effect an escape, as well as by the need to prevent the destruction of evidence of

the crime—things which might easily happen where the weapon or evidence is on

the accused’s person or under his immediate control.’ ” Id. at 764, 89 S.Ct. 2034,

23 L.Ed.2d 685. Thus, the justification for the search in Chimel was specifically

based on well-established exceptions to the search warrant requirement of the

Fourth Amendment, which are designed to protect the safety of the arresting officer

and to prevent the destruction of crime evidence.

{¶ 31} In Belton, the United States Supreme Court sought to create a bright-

line rule for the search of a motor vehicle by applying the rule in Chimel, allowing

for a search of the area within the immediate reach of the arrestee, to the facts in

Belton. Unfortunately, in applying Chimel to Belton, the court stretched the

underlying justification supporting Chimel beyond its rationale.

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{¶ 32} The Supreme Court applied the rationale of Chimel to a case where

the occupants of a motor vehicle were ordered out of the car and arrested. When a

police officer arrests a vehicle occupant, the arrestee is generally removed from the

automobile. At that point, there is no longer any danger to the officer from anything

in the passenger compartment of the vehicle and it is not possible for the arrestee

to destroy evidence that may be in the vehicle. In Brown, we observed that the

search of the passenger compartment of a vehicle after the occupant had already

been arrested could not be justified by the same motivations as Chimel because

“[t]he contents of the automobile were no longer within the arrestee’s immediate

control.” Brown, 63 Ohio St.3d at 353, 588 N.E.2d 113.

{¶ 33} The majority concedes this point by stating that “only motor vehicles

very recently occupied by those who have already been lawfully arrested are subject

to a Belton search.” The majority acknowledges that the occupant must first be

removed from the automobile and placed under arrest before the police officer may

search the automobile. Therefore, since the occupant is already under arrest and

separated from the vehicle, the Chimel justifications for the search, i.e., police

officer safety and the protection of evidence, disappear.

{¶ 34} The absence of the Chimel justifications are apparent in the facts of

Belton. In Belton, a police officer stopped a motor vehicle for speeding. The officer

had probable cause to suspect that there was marijuana in the vehicle and therefore

he ordered all four men out of the vehicle, placed them all under arrest, patted them

down, and “split them up into four separate areas of the Thruway * * * so they

would not be in physical touching area of each other.” Id. at 456, 101 S.Ct. 2860,

69 L.Ed.2d 768. It was not until the police officer completed this procedure of

securing the arrestees that he searched the passenger compartment of the vehicle.

The facts clearly demonstrate that at the point of the vehicle search, the police

officer was not in danger and any evidence in the vehicle was secure.

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{¶ 35} The facts of both Brown and the case at bar illustrate the obvious

absence of the Chimel justifications supporting the search of the passenger

compartment of an automobile after the occupants have been arrested. In Brown,

the police officer arrested the vehicle occupant and “placed him in custody in the

patrol car” before searching the arrestee’s automobile. Brown, 63 Ohio St.3d at

349, 588 N.E.2d 113. Similarly, in the case sub judice the majority acknowledges

that the police officer “arrested appellant, handcuffed him, and placed him in the

back seat of the police car.” Only after Murrell was secured did the police officer

proceed to search the appellant’s vehicle.

{¶ 36} The majority states that the Belton court “reached a calculated

conclusion that a search of the motor vehicle incident to arrest in this situation is a

reasonable one, justified principally by concerns for officer safety and preserving

evidence, and the advantages of having a bright-line rule in such situations.”

{¶ 37} Since the traditional justifications of officer safety and preservation

of evidence found in Chimel do not apply to Belton, and by extension do not apply

to the case at bar, the only valid justification for the Supreme Court’s holding in

Belton is the need for a bright-line test.

{¶ 38} The Belton court stated that, without a bright-line rule, police

officers would be overwhelmed in attempting to decide whether probable cause

exists to search the passenger compartment of an automobile after the occupant is

arrested. Id., 453 U.S. at 458, 101 S.Ct. 2860, 69 L.Ed.2d 768. In order to alleviate

this supposed confusion, the court reasoned that “ ‘[a] custodial arrest of a suspect

based on probable cause is a reasonable intrusion under the Fourth Amendment;

that intrusion being lawful, a search incident to the arrest requires no additional

justification.’ ” Id. at 461, 101 S.Ct. 2860, 69 L.Ed.2d 768, quoting United States

v. Robinson (1973), 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427.

{¶ 39} There is nothing in the record before us to support a conclusion that

since our decision in Brown, law enforcement officers have encountered particular

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difficulty in knowing when to search the passenger compartment of a vehicle

incident to an occupant’s arrest.

{¶ 40} The majority, stating no special justification for adopting the Belton

bright-line rule, contends that “[c]oncerns about a possible lack of probable cause

to conduct a search in a Belton situation are eased by the fact that probable cause

must have been present to arrest the occupant of the vehicle in the first place.”

(Emphasis sic.) In my view, we need a more persuasive reason to justify the

automobile search.

{¶ 41} It is well settled that a state supreme court may interpret its state

constitution to provide greater individual rights than those provided in the federal

Constitution. PruneYard Shopping Ctr. v. Robins (1980), 447 U.S. 74, 81, 100

S.Ct. 2035, 64 L.Ed.2d 741. We did that in Brown when we unanimously held that

the warrantless search of Brown’s vehicle was unreasonable and violated Section

14, Article I of the Ohio Constitution.

{¶ 42} In the time since Brown was decided, nothing has changed to warrant

the majority’s sudden compulsion to overrule Brown. The only reason given by the

majority to demonstrate that the time is now ripe to overrule Brown is this court’s

decision in State v. Robinette (1997), 80 Ohio St.3d 234, 685 N.E.2d 762. In

Robinette we acknowledged the similarity in language between the Fourth

Amendment and Section 14, Article I, and therefore indicated that the two should

be harmonized. Id. at 766-767, 685 N.E.2d 762. However, as the majority correctly

observes, “Robinette obviously left open the possibility that, depending on the

circumstances, this court may decide to give independent effect to Section 14,

Article I in the appropriate case.” The case at bar is an appropriate case for this

court to give independent effect to Section 14, Article I.

{¶ 43} In Brown, this court unanimously rejected Belton in stating that

“[w]e do not believe that the certainty generated by a bright-line test justifies a rule

that automatically allows police officers to search every nook and cranny of an

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SUPREME COURT OF OHIO

automobile just because the driver is arrested for a traffic violation.” Brown, 63

Ohio St.3d at 352, 588 N.E.2d 113. Moreover, the facts in Belton were significantly

different from those in Brown and the case at bar. In Belton the police officer had

probable cause to search the vehicle after the arrest because the arrest was based on

probable cause that there was marijuana in the vehicle. The vehicle search therefore

flowed directly from the arrest.

{¶ 44} However, in Brown, the arrest was for driving under the influence of

alcohol. The probable cause that the officer possessed to make the arrest had no

connection to the contents of the vehicle. In the case at bar, the connection is even

more difficult to make. Murrel was arrested for failure to pay child support. There

was no connection between the reason for the arrest and the contents of the

automobile.

{¶ 45} Because Robinette does not prevent this court from giving

independent effect to Section 14, Article I, Brown should continue to control.

Moreover, since the determinative facts here are closer to Brown than they are to

Belton, we should follow our own jurisprudence as reflected in Brown.

{¶ 46} The unanimous opinion of this court in Brown, that the sole

justification of the need for a bright-line rule is not enough to warrant “an extensive

search based on facts that could never support a warrant because of the lack of

probable cause,” should not be altered. Brown, 63 Ohio St.3d at 352, 588 N.E.2d

113.

{¶ 47} I would reverse the judgment of the court of appeals and reinstate

the judgment of the trial court.

PFEIFER, J., concurs in the foregoing dissenting opinion.

__________________

PFEIFER, J., dissenting.

{¶ 48} This court’s holding in State v. Brown (1992), 63 Ohio St.3d 349,

588 N.E.2d 113, should control this case. The Brown opinion is measured and wise,

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January Term, 2002

and allows for the search of the interior of an automobile incident to a driver’s arrest

when necessary. Under Brown, police officers can search an automobile if there is

probable cause to suspect that the vehicle contains contraband, if there is a

suspicious item in plain view, or if an officer is searching for weapons within the

immediate control of the suspect. These are all reasonable exceptions to the Fourth

Amendment prohibition against warrantless searches. The majority’s holding

today seems inclined to skirt the Fourth Amendment rather than work within it. I

dissent and also join the dissent of Chief Justice Moyer.

__________________

Michael K. Allen, Hamilton County Prosecuting Attorney, and Scott A.

Rubenstein, Assistant Prosecuting Attorney, for appellee.

Arenstein & Gallagher and Hal R. Arenstein, for appellant.

Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,

Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio

Prosecuting Attorneys Association.

H. Fred Hoefle, urging reversal for amicus curiae Greater Cincinnati

Criminal Defense Lawyers Association.

Kravitz & Kravitz and Max Kravitz, urging reversal for amicus curiae Ohio

Association of Criminal Defense Lawyers.

__________________

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