State v. Mathews

Corrigan, J.

The appellant, state of Ohio, maintains that the search of Wanda Mathews’ purse was “incident” to her lawful arrest for being in a policy house; and, alternatively, that the search was made pursuant to the “stop and frisk” procedures enunciated in Terry v. Ohio (1968), 392 U. S. 1.

The right of police officers to search a suspect pursuant to a lawful arrest has been a long-recognized ex *74 ception to the Fourth Amendment warrant requirement. Preston v. United States (1964), 376 U. S. 364; Draper v. United States (1959), 358 U. S. 307; Jones v. United States (1958), 357 U. S. 493; Carroll v. United States (1925), 267 U. S. 132.

There have been, however, divergent tests for determining the reasonablness of warrantless searches incident to lawful arrests.

In a line of cases beginning with Agnello v. United States (1925), 269 U. S. 20, and culminating in United States v. Rabinowits (1950), 339 U. S. 56, the United States Supreme Court based its holdings on a determination of the reasonableness of the search under the circumstances in each ease.

In a second line of cases Deginning with Trupiano v. United States (1948), 334 U. S. 699, and culminating in Chimel v. California (1969), 395 U. S. 752, the court recognized the importance of the Fourth Amendment protection afforded by a prior requirement that officers procure a warrant before a magistrate, based upon probable cause. Chimel overrules Rabinowits in that it requires a determination not as to the reasonableness of the search, but whether it was reasonable not to have procured a warrant under the circumstances of a particular case.

Specifically, Chimel held that it is reasonable not to have procured a warrant only where the search is incident to a lawful arrest and the search is limited to the arrestee’s person and the area within the immediate control of the arrestee, in order to discover and remove weapons and to seize evidence to prevent its destruction or concealment.

More recently, in United States v. Robinson (1973), 414 U. S. 218, the court expanded the limitations set forth in Chimel. The majority held that a full search of the person incident to a lawful custodial arrest is not only an exception to the warrant requirement of the Fourth Amendment but is also a “reasonable” search under that amendment. ■

The court elaborated that the full custodial search *75 was not limited—as in the ease of a stop-and-frisk search incident to an investigative stop based on less than probable cause to arrest—to conducting a frisk of outer clothing only, and removing such weapons an officer may reasonably believe a suspect has in his possession, even though the arrest was for a traffic violation. Rather, since a custodial arrest based upon probable cause is a reasonable ku trusión under the Fourth Amendment, the authority to search, based upon the need to disarm and discover evidence, does not depend on what a court might later decide was the possibility in a particular arrest situation that weapons or evidence would, in fact, be found on the person. The court stated further that the Fourth Amendment was not violated by the search in that case notwithstanding the fact that the officer had no reason to suspect that the defendant was armed and no further evidence of the crime in question could have been obtained by a search.

Applying the Robinson decision to the present case, it is apparent that, if appellee Wanda Mathews’ arrest was lawful, then the search of the purse clutched under her arm, and under her immediate control, was not unreasonable.

The crime for which appellee Wanda Mathews was arrested, as stated by the arresting police officer, was for being in a policy house. The provisions of R. C. 2915.02 and 2915.03 cover gambling and operating a gambling house, respectively, and prohibit, among other things, the knowing possession of gambling tools, facilitation of gambling operations, and permitting the use of premises for the use of gambling. The premises in which the arrest was made was the apartment of the defendant and her husband. Defendant was charged with possession of policy slips and this charge was later nolled.

Violation of these ■ sections constitutes a misdemeanor of the first degree for a first offense.

Police officers in Ohio, under R. C. 2935.03, have authority to arrest and detain persons found violating the laws of this state, or ordinances of municipal corporations, until a warrant can be obtained. This language, “found *76 violating,” has been interpreted to authorize a warrant-less arrest for misdemeanor only where the offense has been committed in the officer’s presence. State v. Lewis (1893), 50 Ohio St. 179. See, also, Carroll v. United States, supra (267 U. S. 132).

In the present case, the record at the suppression hearing establishes that, when Detective Fulton entered apartment No. 2, which belonged to Wanda Mathews and her husband, he observed numerous books of policy slips, charts for bets, and an adding machine. Just before that, when he detained the woman who had climbed out of the apartment window with policy slips in her hand, she told him she had just placed a bet. Clearly, the officer observed the commission of a misdemeanor by Wanda Mathews.

The appellee argues that her occupancy of the bathroom in no way connected her with the gambling operation. Subsequent testimony adduced at the hearing established that the apartment was rented under a fictitious name but that the light bill for the apartment was addressed either to the appellee or her husband.

The crime in question being one of possession of gambling equipment and the permissive use of premises for gambling, the occupants of the premises are clearly the parties subject to the proscriptions of the statutes. The mere fact that the appellee was in another room at the time does not enable her to escape liability for arrest.

Detective Fulton’s entry into the bathroom was not a search of the apartment. The toilet flushing alerted him to the presence of another occupant of the apartment. His entry into the bathroom did not result in the production of any other evidence. Rather, it was necessary to the actual or constructive seizure or detention of the appellee, thus effecting an arrest. Jenkins v. United States (C. A. 10, 1947), 161 F. 2d 99; Alter v. Paul (1955), 101 Ohio App. 139.

The only search complained of in this case was that of the appellee’s purse. This custodial search was incident to appellee’s lawful arrest under the rule announced in United States v. Robinson, supra (414 U. S. 218).

*77 The only other possible constitutional infringement arising out of this arrest was the original entry of Detective Falzone and the uniformed officers into the apartment. When Detective Fulton entered, the door was open and the other officers were inside. The appellee testified that she was in the bathroom at the time that the officers entered the apartment. Evidence at the suppression hearing was only that Detective Fulton walked in the open door and observed gambling equipment. Detective Fulton’s observations outside and the information received over the police radio broadcast gave him reasonable grounds to investigate the activities at the apartment. Upon entering the front door, he observed the commission of a misdemeanor. Under the circumstances, he had authority to arrest the occupants of the apartment and to conduct a custodial search incident to a lawful arrest.

The judgment of the Court of Appeals is, therefore, reversed and the cause remanded to the trial court for further proceedings in accordance with this opinion.

Judgment reversed.

0’Neill, C. J., Herbert, Celebrezze, W. Brown and P. Brown, JJ., concur.