[Cite as State v. Smith, 2013-Ohio-2208.] 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: May 31, 2013 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, 

Assistant Prosecuting Attorney, for Plaintiff-Appellant, 

Kory Jackson, for Defendant-Appellee. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellant, 

 vs. 

SIEARRA SMITH, 

 Defendant-Appellee. 

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: 

: 

: 

: 

APPEAL NO. C-110727

TRIAL NO. B-1102515 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

CUNNINGHAM, Judge. 

{¶1} The state appeals from the trial court’s order granting defendant-appellee 

Siearra Smith’s motion to suppress a revolver found in her purse after the warrantless 

search of her vehicle. Police had stopped Smith for driving with a suspended driver’s 

license and other minor traffic infractions. During the stop, an experienced police officer 

observed Smith make furtive movements to secret what he believed to be a weapon in her 

purse. The officers removed Smith from her vehicle and searched it for weapons, finding a 

loaded revolver in her purse. Because a full custodial arrest had not been effected, and 

Smith could have reentered her vehicle at the conclusion of the investigation where 

she could have regained immediate control of the revolver, the officers had a 

reasonable basis to search the vehicle. We must reverse. 

{¶2} Smith was driving her vehicle westbound on Waycross Road in the city of 

Forest Park, Ohio. She had a single passenger with her, Troy Willis. Forest Park Police 

Officer Eric Wetterich observed Smith and, as was the custom of his department, entered 

her license-plate number into his in-car computer. The computer search revealed that 

Smith, the vehicle owner, was driving with a suspended driver’s license. Officer Wetterich, 

an experienced police officer with nine years’ service, followed Smith and observed her 

commit several turn-signal violations. Smith pulled into a fast-food restaurant and 

stopped at the drive-thru service lane. Officer Wetterich pulled in behind Smith. Smith’s 

vehicle then “suddenly pulled away” from the drive-thru and entered a parking spot on the 

restaurant lot. 

{¶3} Officer Wetterich parked his cruiser behind Smith’s vehicle. He observed 

her “reach[ing] back to the right, into the middle console area of the vehicle.” Smith 

“appeared to be looking or digging or hiding something at this point.” Her motions were 

“a little bit frantic.” Concerned that Smith may have been reaching for, or secreting, a 

weapon, when Smith attempted to exit from the vehicle, Officer Wetterich activated the 

cruiser lights, and called for backup. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶4} He approached Smith and expressed his concerns regarding her 

movements in the car. She appeared nervous. Smith explained that she was merely 

getting her wallet out of her purse. Officer Wetterich told her that he was going to search 

the vehicle for everyone’s safety. She denied having a weapon. 

{¶5} After the arrival of Forest Park Police Officer Fredrick Smith, Willis and 

Smith were asked to leave the vehicle. It was determined that Willis also had a suspended 

driver’s license. Willis was placed in Officer Smith’s cruiser but was not handcuffed. 

Smith stood next to the cruiser parked some distance from her vehicle. She was not 

frisked or handcuffed. 

{¶6} Officer Wetterich began his search and immediately spotted a digital scale 

in plain sight in the driver’s side door pocket. He next spotted Smith’s purse. It was 

located in the area of the rear seat where he had seen Smith make her furtive motions. He 

unzipped the purse and spotted a loaded revolver on top of the purse contents. Smith 

denied knowing that the revolver was in her purse. 

{¶7} Smith was indicted for carrying a concealed weapon, and for improper 

handling of a firearm in a vehicle, both punishable as fourth-degree felonies. She moved 

to suppress the revolver as the fruit of an unreasonable search. At the conclusion of a 

hearing on the motion, the trial court carefully and fully stated the facts upon which 

its decision was based. The trial court concluded that Officer Wetterich had made a 

valid traffic stop and that his legitimate concern for his safety would have permitted 

a simple frisk of Smith and Willis for weapons. But, the court concluded that once 

Smith was out of her vehicle and was no longer within reach of her purse, there was 

no danger to the officers’ safety and their subsequent search of the vehicle was 

unreasonable. The court granted the motion to suppress, and the state timely 

appealed pursuant to R.C. 2945.67 and Crim.R. 12(K). 

{¶8} In its sole assignment of error, the state argues that the trial court 

erred in granting Smith’s motion to suppress. We agree. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶9} Our review of the trial court’s detailed findings of fact and legal 

conclusions entails a two-step process. See In re A.J.S., 120 Ohio St.3d 185, 2008-

Ohio-5307, 897 N.E.2d 629, ¶ 49 et seq. First, we accept the trial court’s findings of 

historical fact if they are supported by competent, credible evidence. See State v. 

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Then this court 

must make an independent determination, without deference to the trial court’s legal 

conclusions, whether those facts meet the applicable constitutional standards as a matter 

of law. See id.; see also State v. Deters, 128 Ohio App.3d 329, 334-335, 714 N.E.2d 

972 (1st Dist.1998). 

{¶10} The Fourth Amendment to the United States Constitution prohibits 

warrantless searches and seizures. Accord Ohio Constitution, Article I, Section 14. 

Unless one of the few well-delineated exceptions applies, warrantless searches are

per se unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 

19 L.Ed.2d 576 (1967). 

{¶11} In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L. Ed. 2d 1201 

(1983), the United States Supreme Court recognized one exception to the warrant 

requirement for the limited protective search of an automobile during a lawful traffic 

stop. See Arizona v. Gant, 556 U.S. 332, 347, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) 

(the Michigan v. Long rule remains an “established exception to the warrant 

requirement”). The exception derives from the recognition that “investigative 

detentions involving suspects in vehicles are especially fraught with danger to police 

officers.” Long at 1047. Thus, the search of the passenger compartment of an 

automobile to uncover weapons, limited to those areas in which a weapon may be 

placed or hidden, is permissible, as long as the investigating police officer possesses 

an articulable and objectively reasonable belief that the suspect is potentially 

dangerous and that she may gain immediate control of a weapon. See id. at 1048-

1049; see also State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988); State v. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Huth, 153 Ohio App.3d 102, 2005-Ohio-4303, 836 N.E.2d 623, ¶ 13 (1st Dist.). We 

determine the existence of a reasonable suspicion that a suspect was dangerous and 

that a weapon was present by evaluating the totality of the circumstances, 

considering those circumstances through the eyes of a reasonable and prudent police 

officer. See Bobo at paragraph two of the syllabus. 

{¶12} In this case, the resolution of the state’s assignment of error depends 

upon the trial court’s legal conclusion that Officer Wetterich lacked a reasonable and 

articulable suspicion to search Smith’s vehicle once she had been removed from the 

vehicle. Smith argues that once outside of her vehicle and standing next to the police 

cruiser, she lacked the ability to gain immediate control of the revolver. Thus she 

maintains that the officers had engaged in an unconstitutional, free-ranging search 

for evidence of crime simply because she had been caught committing a traffic 

offense. See Gant at 345 (a police officer’s unbridled discretion to rummage at will 

among a person’s private effects implicates a central concern of the Fourth 

Amendment). 

{¶13} It is beyond cavil that Officer Wetterich possessed authority to stop 

Smith’s vehicle. See Dayton v. Erickson, 76 Ohio St.3d 3, 9, 665 N.E.2d 1091 (1996). 

Officer Wetterich, an experienced officer, was patrolling alone when he encountered 

Smith. She was driving with a suspended license, and he had observed her make 

several turns without using her turn signals. He observed her speed away from the 

drive-thru window and then abruptly pull into a parking spot after his cruiser 

followed her. 

{¶14} When Officer Wetterich’s cruiser pulled in behind Smith’s parked 

vehicle, he observed her reaching over her right shoulder and making furtive motions 

as if she were trying to obtain or secret something in her purse. The trial court’s 

findings that Smith’s actions caused Officer Wetterich reasonable concern for his 

safety are well supported in the record. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶15} In response to this concern, Officer Wetterich and Officer Smith 

removed Smith and her passenger from the vehicle. Willis was frisked and placed in 

a police cruiser, but was not handcuffed. Smith was asked to stand near Officer 

Smith’s cruiser but was not frisked or handcuffed. Until this point of the encounter, 

the trial court concluded that the scope of the officers’ intrusion into Smith’s liberty 

was reasonable and justified by concern for their safety. But once Smith had been 

removed from the vehicle, the purse, and any weapon contained within it, was no 

longer within her immediate reach. Thus the trial court concluded that Smith no 

longer posed a danger to the officers, and any justification to search further for 

weapons was lost. 

{¶16} But the lawfulness of Officer Wetterich’s subsequent search of Smith’s 

vehicle and purse was not limited by the fact that Smith and Willis had been removed 

from the vehicle. A subsequent search for weapons in a vehicle is justified by an 

officer’s particularly vulnerable position during a traffic stop. Where a full custodial 

arrest has not been effected, the individual may be permitted to reenter her vehicle at 

the conclusion of the investigation where she could regain immediate control of a 

weapon. See Long, 463 U.S. at 1049-1052, 103 S.Ct. 3469, 77 L.Ed.2d 1201; accord 

Gant, 556 U.S. 332, at 352, 129 S.Ct. 1710, 173 L.Ed.2d 485 (Scalia, J., concurring) 

(“the possibility of access to weapons in the vehicle always exists [if an arrest has not 

been made], since the driver or passenger will be allowed to return to the vehicle 

when the interrogation is completed”). 

{¶17} This court has long held that if vehicle occupants would be permitted 

to return to the vehicle, an officer acts reasonably when, out of a concern for his 

safety, the vehicle is searched for weapons prior to allowing its occupants to reenter. 

See State v. Sieg, 1st Dist. No. C-940953, 1995 Ohio App. LEXIS 2814 (July 5, 1995) 

(it was not unreasonable for investigating officer to look under the driver’s seat of the 

suspect’s vehicle to determine whether weapons were present); see also State v. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Caulton, 1st Dist. No. C-080034, 2008-Ohio-6090, ¶ 10 (“even where a suspect is 

out of his car, a Terry search may extend to areas in the car that would be readily 

accessible to a suspect upon his return to the car”); State v. Walker, 2d Dist. No. 

24542, 2012-Ohio-847, ¶ 28 and 31; State v. Morlock, 3d Dist. No. 1-12-21, 2013-

Ohio-641, ¶ 14; State v. Wade, 9th Dist. No. 26275, 2012-Ohio-4255, ¶ 20; State v. 

Broughton, 2012-Ohio-2526, 969 N.E.2d 810, ¶ 23 (10th Dist.). 

{¶18} Under the totality of the circumstances, we hold that Officer 

Wetterich possessed a reasonable basis to search Smith’s vehicle and to look into her 

purse in order to determine whether, for the officers’ safety, any weapons were 

present. After he had stopped her vehicle, Officer Wetterich had observed Smith 

making furtive movements in her purse. At the time of the search, Smith was not 

under arrest. And though Officer Wetterich indicated Smith would not be permitted 

to drive the vehicle away, it was likely that she would have returned to the vehicle to 

recover her purse and thus gain immediate control of a weapon had the search not 

uncovered the revolver. See Morlock at ¶ 14. 

{¶19} Since at the time of the search Smith was not under arrest and 

secured in handcuffs inside a police cruiser without the possibility of leaving police 

custody, the rule of Arizona v. Gant, proscribing the warrantless search of an 

automobile if the suspect is already in police custody, is not at issue here. See 

Broughton at ¶ 36. There was sufficient justification for a warrantless search at its 

inception and at each subsequent stage of the inquiry. See Long, 463 U.S. at 1048-

1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201; see also State v. Ruehlmann, 1st Dist. No. C100784, 2011-Ohio-6717, ¶ 12. And the scope of the search was “strictly 

circumscribed” by the exigencies which justified its initiation. Terry v. Ohio, 392 

U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We sustain the state’s 

assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶20} Therefore, the judgment of the trial court granting Smith’s motion to 

suppress the revolver seized during the search of her vehicle is reversed. The cause is 

remanded to the trial court for further proceedings consistent with law and this 

opinion. 

Judgment reversed and cause remanded. 

HILDEBRANDT, P.J., andFISCHER, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.