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State v. Cordell

Court of Appeals of Ohio, Tenth District

July 11, 2013

State of Ohio, Plaintiff-Appellant,
v.
Darrian T. Cordell, Defendant-Appellee.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 11CR-04-1724

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellant.

W. Joseph Edwards, for appellee.

DECISION

CONNOR, J.

{¶ 1} Plaintiff-appellant, State of Ohio ("State"), appeals from an order of the Franklin County Court of Common Pleas granting a motion by defendant-appellee, Darrian T. Cordell ("appellee"), seeking suppression of evidence obtained at the time of his arrest.

{¶ 2} The Franklin County Grand Jury indicted appellee on various drug possession and firearms charges, all arising out of evidence obtained in connection with a traffic stop and search of his vehicle. Counsel for appellee filed a motion to suppress evidence on constitutional grounds. The State filed a memorandum contra, asserting that the evidence should not be suppressed because the good-faith exception to the exclusionary rule applied. Alternatively, the State argued that the evidence was properly obtained pursuant to a protective sweep of the vehicle's interior undertaken for the protection of the responding officer.

{¶ 3} The trial court held an oral hearing on the matter in which the arresting officer, Ohio State Highway Patrol Trooper Matthew Himes, was the only witness. Trooper Himes described the circumstances of the traffic stop that initiated the matter, and subsequent events leading to appellee's arrest. The events unfolded at approximately 2:00 a.m. on November 25, 2009. Trooper Himes stated that he observed appellee's vehicle on Sullivant Avenue in Columbus following less than a half car length of the vehicle ahead. Trooper Himes turned around and began following appellee's vehicle on Sullivant Avenue to make a traffic stop for following too closely. Appellee then made a left turn onto Westgate Avenue while driving at a high rate of speed. Westgate Avenue has speed bumps and Trooper Himes saw appellee go over two speed bumps at an excessive speed, thereafter coming to an abrupt stop in front of a private residence.

{¶ 4} As Trooper Himes pulled to the curb behind appellee he turned on his pursuit lights. As Trooper Himes opened his door to exit the patrol car, appellee unexpectedly exited his own vehicle. The sole passenger in appellee's vehicle remained in the car. Trooper Himes abandoned his usual procedure of approaching the stopped vehicle to interview the driver while standing beside the vehicle, because appellee's behavior alerted Trooper Himes that an unusual and possibly unsafe situation could develop. Trooper Himes then had appellee walk back toward the patrol car, where he undertook his initial verbal exchange with appellee, asking for a driver's license. Appellee stated he did not have his I.D. with him, appeared extremely nervous, avoided eye contact with Trooper Himes, and was "moving around a lot." (Tr. 7.) Appellee did give his correct name, and stated that he was on his way to his aunt's house in the area.

{¶ 5} At this time, Trooper Himes placed appellee in the back of the patrol car and initiated a check of appellee's identification and verification of the existence of a valid driver's license. While seated in the backseat of the patrol car, appellee remained nervous. He volunteered that his abrupt stop was not in front of his aunt's house, but claimed that he stopped suddenly because he realized that he had turned on the wrong street. Appellee acknowledged that he had seen Trooper Himes make a U-turn on Sullivant Avenue and anticipated a traffic stop. He altered his previous version of his destination and now claimed that he had been going to a "chick's house." (Tr. 8.)

{¶ 6} Trooper Himes called for another law enforcement unit to come assist him at the scene. He removed appellee's passenger from the vehicle and placed him in the backseat of the patrol car with appellee. Trooper Himes explained that, based on appellee's demeanor and conflicting stories, he planned to undertake a protective search of the passenger compartment of appellee's vehicle. Appellee denied having anything illegal in the vehicle.

{¶ 7} The driver's side door to appellee's vehicle was still open and Trooper Himes knelt down to look in front of the driver's seat, observing a Smith & Wesson semiautomatic pistol underneath the driver's seat. Trooper Himes stated that the gun was also visible through a downward view from outside the front windshield, and that he would likely have observed the gun if he had approached the vehicle with appellee still inside. Trooper Himes took a photograph without initially disturbing the gun in order to record its position, and then neutralized the weapon by removing a magazine containing 12 live rounds and removing a live round from the chamber. Further search of the vehicle revealed a small quantity of Oxycodone and a larger quantity of crack cocaine in the glove compartment, as well as another 9 mm handgun under the passenger seat.

{¶ 8} The trial court concluded the hearing by rendering a verbal decision granting suppression. The court followed by a written decision and judgment entry. The court explicitly noted in its written decision that appellee was not under arrest at the time of the vehicle search. The court held, however, that pursuant to Arizona v. Gant, 556 U.S. 332 (2009), the search of the passenger compartment violated appellee's Fourth Amendment rights against unreasonable search and seizure. The trial court invoked the exclusionary rule and granted appellee's motion to suppress the evidence devolving from the search.

{¶ 9} The State has timely appealed and brings the following two assignments of error for our review:

[I.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT RELIED ON ARIZONA V. GANT [556 U.S. 332 (2009)] TO INVALIDATE A SEARCH PROPERLY CONDUCTED UNDER THE PROTECTIVE-SEARCH ...

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