[Cite as State v. Grubb, 186 Ohio App.3d 744, 2010-Ohio-1265.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

DEFIANCE COUNTY 

 

The STATE OF OHIO, 

 APPELLEE, CASE NO. 4-09-32 

 v. 

GRUBB, O P I N I O N 

 APPELLANT. 

 

Appeal from Defiance Municipal Court 

Trial Court No. CRB 0900239 

Judgment Reversed and Cause Remanded 

Date of Decision: March 29, 2010 

 

APPEARANCES: 

David A. Land, for appellee. 

James E. Hitchcock, for appellant. 
Case No. 4-09-32 

-2-

 ROGERS, Judge. 

{¶1} Defendant-appellant, Rachel Grubb, appeals the judgment of the 

Defiance Municipal Court overruling her motion to suppress drug paraphernalia 

obtained during a search related to a traffic stop. On appeal, Grubb contends that 

the trial court erred in overruling her motion to suppress because the search was 

unconstitutional pursuant to Arizona v. Gant (2009), 556 U.S. ___, 129 S.Ct. 1710, 

173 L.Ed.2d 485. Based upon the following, we reverse the judgment of the trial 

court. 

{¶2} In February 2009, Grubb was charged via complaint with one count 

of possession of drug paraphernalia in violation of R.C. 2925.14, a misdemeanor 

of the fourth degree. The charge stemmed from an incident during which a police 

officer pulled over a vehicle driven by Michael Grubb, Grubb’s husband, in which 

Grubb was riding, arrested Michael for driving with a suspended license, 

proceeded to search Grubb’s purse inside the vehicle, discovered several glass 

pipes inside the purse containing burnt residue and the odor of marijuana, and 

discovered a small amount of marijuana inside the passenger compartment of the 

vehicle.1

 Thereafter, Grubb entered a plea of not guilty to the complaint. 

{¶3} In March 2009, Grubb filed a motion to suppress the evidence seized 

as a result of the traffic stop, arguing that the search was unconstitutional because 

 

1

 The record also reflects that Michael Grubb was charged with driving under suspension and marijuana 

possession. 
Case No. 4-09-32 

-3-

the arresting officer’s statement was devoid of any suspicion that Grubb was 

armed and dangerous or presented any threat that would justify a search of the 

vehicle or her purse. 

{¶4} In April 2009, the trial court held a hearing on the motion to 

suppress,

2

 at which the following testimony was heard. 

{¶5} Deputy Benjamin Moser of the Defiance County Sheriff’s Office 

testified that on February 17, 2009, he was patrolling on State Route 2, south of 

State Route 249, in Defiance County, when he observed a westbound vehicle 

traveling in excess of the posted speed limit; that he conducted a registration check 

on the vehicle and discovered that the registered owner’s license was suspended; 

that he initiated a stop of the vehicle based on the speeding violation and identified 

the registered owner, Michael, as the vehicle’s operator based upon images from 

his in-car computer; that Michael’s wife, later identified as Grubb, was seated in 

the passenger seat of the vehicle; that he asked Michael to exit the vehicle, 

informed him that his license was under suspension, handcuffed him, placed him 

under arrest, and seated him in the back of his patrol car; and that he believed he 

asked Michael whether there was anything illegal in the vehicle, and he believed 

Michael indicated that there was not. 

 

2

 The suppression hearing was a joint hearing concerning both Grubb’s and Michael’s cases, and the trial 

court granted only Michael’s motion to suppress the evidence of marijuana discovered in the vehicle. 
Case No. 4-09-32 

-4-

{¶6} Deputy Moser continued that he checked his in-car computer and 

discovered that Grubb did not have a driver’s license; that he approached the 

vehicle, asked Grubb to exit the passenger seat and stand toward the front of the 

vehicle, and Grubb complied; that he observed a purse on the floorboard of the 

vehicle, opened it, and discovered several broken smoking pipes and one intact 

pipe; that there was residue on the pipes that smelled like marijuana; that Grubb 

stated that the pipes did not belong to her, but that the purse belonged to her; that 

he placed Grubb in handcuffs and proceeded to search the passenger compartment 

of the vehicle; that he discovered a small amount of marijuana under the passenger 

seat; that both Michael and Grubb denied ownership of the marijuana and pipes; 

and that Grubb was outside the vehicle at the time he searched her purse, and he 

had arrested her at the time he searched the remainder of the passenger 

compartment of the vehicle. 

{¶7} On cross-examination, Deputy Moser testified that the area in which 

he initiated the stop of the Grubbs’ vehicle was rural, but that he could not say 

whether it was a high-crime area; that when he initiated the stop, he did not 

observe that the Grubbs appeared “to be hiding anything, or moving stuff around 

in the car”; that Michael did not resist the pat-down of his person or his arrest and 

did not mention anything about a weapon; that he did not find any weapons on 

Michael’s person; that it took approximately 15 minutes for him to remove 
Case No. 4-09-32 

-5-

Michael from the vehicle, arrest him, and move him into the patrol car; that during 

the approximate 15-minute period during which he arrested and secured Michael, 

Grubb was sitting in the passenger seat of the vehicle and he did not see her 

making any furtive movements; that Grubb questioned why he had asked her to 

exit the vehicle, but had no “major attitude”; that Grubb made no unusual 

movements or threatening comments; that he did not believe that Grubb was going 

to shoot or hurt him; that he did not know whether he had any specific reason to 

suspect that she was armed, but that “when [he walks] up to a car [he suspects] 

that, you know, anybody could be armed with anything”; that he searched the car 

because he “was doing a search incident to arrest. [He] was looking for anything, 

you know, weapons, anything illegal, anything that shouldn’t be in the car”; that at 

the time he searched the vehicle, he had already placed Michael under arrest, and 

it would have been impossible for Michael to reach into the vehicle; and that he 

decided to “cut them a break” and not impound the vehicle. 

{¶8} In July 2009, the trial court overruled Grubb’s motion to suppress, 

finding that when Deputy Moser removed Grubb from the vehicle, she was not 

under arrest, and he proceeded to search the area where she had been seated for 

officer-safety purposes; that upon checking her immediate vicinity in the vehicle, 

Deputy Moser discovered her purse, which contained smoking pipes with 

marijuana residue; that the basic holding of Gant, 556 U.S. ___, 129 S.Ct.1710, 
Case No. 4-09-32 

-6-

173 L.Ed.2d 485, was that “[p]olice may search the passenger compartment of a 

vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that 

the arrestee might access the vehicle at the time of the search, or that the vehicle 

contains evidence of the offense of arrest”; that the facts at issue were 

distinguished from Gant because Michael was not the sole occupant of the vehicle 

and Grubb, not being under arrest initially, would have had access to her area in 

the vehicle; that for officer-safety purposes, Deputy Moser was permitted to search 

her area with the probability of then returning her to the vehicle to wait for a ride; 

and that upon discovering the drug paraphernalia in her purse, Deputy Moser 

acquired probable cause to place Grubb under arrest and had reason to search the 

vehicle to look for further evidence of her crime, possession of drug paraphernalia. 

{¶9} In August 2009, Grubb withdrew her plea of not guilty and entered a 

plea of no contest to “drug offenses,” for which the trial court determined she was 

guilty and sentenced her to a 30-day jail term, suspended in its entirety 

conditioned on no similar violations, and imposed a six-month driver’s-license 

suspension and a $250 fine. Thereafter, Grubb appealed her conviction and 

sentence. 

{¶10} In September 2009, this court dismissed Grubb’s appeal, finding that 

the trial court’s judgment entry of conviction was not a final, appealable order 

because its statement that Grubb entered a plea of no contest to “drug offenses” 
Case No. 4-09-32 

-7-

did not sufficiently state to what offense her plea and conviction related pursuant 

to Crim.R. 32(C); State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. Shortly 

thereafter, the trial court issued a second judgment entry to reflect that Grubb was 

convicted of possession of drug paraphernalia in violation of R.C. 2925.14. 

{¶11} It is from this judgment that Grubb appeals, presenting the following 

assignment of error for our review. 

The trial court erred when it overruled the defendant’s motion to 

suppress certain materials found in her husband’s car and in her 

purse. The search clearly violated Arizona v. Gant, [___ U.S. ___,] 

129 S.Ct. 1710, 173 L.Ed.2d 48509. 

Standard of Review 

{¶12} “Appellate review of a decision on a motion to suppress evidence 

presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13, 

2006-Ohio-601, ¶12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d 

1117, 1119. The trial court serves as the trier of fact and is the primary judge of 

the credibility of the witnesses and the weight to be given to the evidence 

presented. State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when 

an appellate court reviews a trial court’s ruling on a motion to suppress, it must 

accept the trial court’s findings of facts so long as they are supported by 

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio3665, ¶100, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate 
Case No. 4-09-32 

-8-

court must then review the application of the law to the facts de novo. Roberts, 

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. 

Search and Seizure 

{¶13} The Fourth Amendment to the United States Constitution and 

Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and 

seizures. Neither the Fourth Amendment to the United States Constitution nor 

Section 14, Article I of the Ohio Constitution explicitly provides that violations of 

its provisions against unlawful searches and seizures will result in the suppression 

of evidence obtained as a result of those violations, but the United States Supreme 

Court has held that the exclusion of evidence is an essential part of the Fourth 

Amendment. Mapp v. Ohio (1961), 367 U.S. 643, 649; Weeks v. United States

(1914), 232 U.S. 383, 394. The primary purpose of the exclusionary rule is to 

remove the incentive to violate the Fourth Amendment and thereby deter police 

from unlawful conduct. State v. Jones (2000), 88 Ohio St.3d 430, 434, overruled 

by State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931. 

{¶14} The United States Supreme Court has repeatedly emphasized the 

general rule that “ ‘searches conducted outside the judicial process, without prior 

approval by judge or magistrate, are per se unreasonable under the Fourth 

Amendment—subject only to a few specifically established and well-delineated 

exceptions.’ ” Gant, 556 U.S. ___, 129 S.Ct. at 1716, 173 L.Ed.2d 485, quoting 
Case No. 4-09-32 

-9-

Katz v. United States (1967), 389 U.S. 347, 357. In order for a law-enforcement 

officer to conduct a search of an automobile without first obtaining a warrant, the 

officer must typically possess probable cause, which means that “ ‘there is a fair 

probability that contraband or evidence of a crime will be found in a particular 

place.’ ” State v. Carlson (1995), 102 Ohio App.3d 585, 600, quoting Illinois v. 

Gates (1983), 462 U.S. 213, 214. However, even when probable cause is not 

present, many exceptions have been established for warrantless searches 

conducted under certain circumstances. See, e.g., exigent-circumstances 

exception, United States v. Edwards (1974), 415 U.S. 800; search-incident-toarrest exception, Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 

L.Ed.2d 685; New York v. Belton (1981), 453 U.S. 454; automobile exception, 

United States v. Ross (1982), 456 U.S. 798; State v. Mesa (1999), 87 Ohio St.3d 

105; inventory-search exception, Colorado v. Bertine (1987), 479 U.S. 367, 372; 

plain-view exception, Harris v. United States (1968), 390 U.S. 234; “plain feel” 

exception, State v. Evans (1993), 67 Ohio St.3d 405, 408; consensual-search 

exception, Florida v. Bostick (1991), 501 U.S. 429; “stop and frisk” exception, 

Terry v. Ohio (1968), 392 U.S. 1. 

{¶15} At a suppression hearing, the state bears the burden of establishing 

that a warrantless search and seizure falls within one of the exceptions to the 

warrant requirement, Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph two 
Case No. 4-09-32 

-10-

of the syllabus; State v. Kessler (1978), 53 Ohio St.2d 204, 207, and that it meets 

Fourth Amendment standards of reasonableness. Maumee v. Weisner (1999), 87 

Ohio St.3d 295, 297, citing 5 LaFave, Search and Seizure (3d Ed.1996), Section 

11.2(b). 

Automobile Searches Incident to Arrest 

{¶16} Even when probable cause to search an automobile is lacking, it has 

long been established that “[w]hen 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,” 

including any containers therein. State v. Murrell (2002), 94 Ohio St.3d 489, 764 

N.E.2d 986, at syllabus, following New York v. Belton (1981), 453 U.S. 454, 460, 

101 S.Ct. 2860, 69 L.Ed.2d 768. See also Gant, 556 U.S. ___, 129 S.Ct. at 1717, 

173 L.Ed.2d 485. In Belton, a single law-enforcement officer conducted a traffic 

stop of four men in a vehicle traveling in excess of the speed limit. The officer 

then discovered that none of the men owned the vehicle, smelled the odor of burnt 

marijuana, and observed an envelope on the vehicle floor marked “supergold,” a 

term associated with marijuana. Belton at 455-456. The officer discovered that 

the envelope contained marijuana, removed all four men from the vehicle, arrested 

them for marijuana possession, searched them, and, as the men stood by the side 

of the car, searched a jacket located in the passenger compartment and discovered 
Case No. 4-09-32 

-11-

cocaine. Id. at 456. The holding in Belton was based in large part on the 

recognition 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.’ ” Id. at 460, quoting Chimel, 395 

U.S. at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685. See also Gant at 1717. Thus, the 

underlying rationales of the exception were officer safety and preservation of 

evidence. Gant at 1712; Chimel at 763. 

{¶17} Despite these rationales behind the search-incident-to-arrest 

exception, many courts have broadly interpreted Belton to permit searches of 

automobiles incident to arrest even when there was no possibility that the arrestee 

could access her automobile to threaten officer safety or to destroy or conceal 

evidence, such as when she was already arrested and secured inside the patrol car. 

Gant at 1718; see, e.g., Murrell, 94 Ohio St.3d 489, 764 N.E.2d 986; State v. 

Gray, 2d Dist. No. 22688, 2009-Ohio-1411, ¶17 (finding that “an arrestee 

handcuffed in the backseat of a squad car changes nothing * * *”); State v. Clancy 

(Apr. 19, 2002), 2d Dist. No. 18844, 2002 WL 628124. Compare Murrell at 497-

498 (Moyer, C.J., dissenting) (observing that “[t]he 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 
Case No. 4-09-32 

-12-

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”). 

{¶18} In light of criticism of some courts’ broad application of Belton, 453 

U.S. 454, the United States Supreme Court recently revisited the issue of 

automobile searches incident to arrest in Gant, specifically addressing situations 

where the search is conducted after the scene is “secured.” In Gant, 556 U.S. ___, 

129 S.Ct. 1710, 173 L.Ed.2d 485, a defendant was arrested for driving with a 

suspended license. After he was arrested, handcuffed, and placed in the back seat 

of the locked patrol car, police officers proceeded to search Gant’s vehicle and 

discovered illegal drugs inside a jacket in the passenger compartment. Finding 

that the goals behind the exception, officer safety and preservation of evidence, 

were not served where the scene and vehicle’s sole occupant were already 

“secured,” the Supreme Court narrowed the breadth of automobile searches 

incident to arrest, as set forth in Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 

768, by requiring that the searches be restricted to the reaching distance of the 

passenger compartment of the vehicle when the individual is unsecured, or where 

the police have a reasonable belief that evidence of the crime for which the 

individual was arrested may be found in the vehicle. Gant at 1718-1719. 

{¶19} Despite its limitation on automobile searches incident to arrest, the 

Supreme Court emphasized in Gant that even if a search incident to arrest was not 
Case No. 4-09-32 

-13-

justified, the other established exceptions to the warrant requirement may 

nevertheless apply depending on the circumstances. For example, the court 

remarked that pursuant to Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct. 

3469, an officer may “search a vehicle’s passenger compartment when he has 

reasonable suspicion that an individual, whether or not the arrestee, is ‘dangerous’ 

and might access the vehicle to ‘gain immediate control of weapons.’ ” Gant, 556 

U.S. ___, 129 S.Ct. at 1721, 173 L.Ed.2d 485, quoting Long at 1049.

Application of Gant

{¶20} Since its release, a number of Ohio courts have applied Gant, 

including the Second Appellate District in State v. Gilbert, 184 Ohio App.3d 642, 

2009-Ohio-5528. In Gilbert, a police officer stopped a vehicle containing four 

occupants because the driver had committed a traffic violation. The officer 

discovered that the driver’s license had been suspended, arrested her, and removed 

her from the vehicle. Thereafter, the officer checked the status of the remaining 

three occupants, discovered that a female passenger had an outstanding warrant for 

her arrest, and arrested the female passenger and removed her from the vehicle. 

The remaining two occupants, including Gilbert, did not have any outstanding 

warrants; however, the officer removed them from the vehicle for officer-safety 

purposes so that other officers could search the vehicle incident to arrest. An 

officer was stationed to monitor the two occupants while the search of the vehicle 
Case No. 4-09-32 

-14-

was being conducted by several other officers. A pat-down search of the two 

occupants revealed nothing, and they were neither arrested nor handcuffed. 

During the search of the vehicle, an officer discovered marijuana seeds in the 

passenger compartment. Due to discovery of the seeds, an officer proceeded to 

search Gilbert more thoroughly and uncovered several bags of illegal substances 

in his shoe. 

{¶21} Thereafter, the Second District reversed Gilbert’s convictions for 

drug possession, finding that the search was unlawful. The court found that at the 

time the search occurred, multiple police officers were on the scene, and all 

vehicle occupants had been removed and were under police control. Thus, the 

court concluded, none of the occupants had access to the vehicle’s passenger 

compartment. Further, the court observed, there was no indication that the search 

was conducted to uncover evidence relevant to either of the crimes for which the 

driver and female passenger were arrested. Based upon these findings, the court 

concluded that although the search would have been permissible under the 

traditional interpretation of Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, 

it was unlawful under the new limitations in Gant, stating as follows: 

It is particularly significant that Belton searches authorize 

police officers to search not just the passenger compartment but 

every purse, briefcase, or other container within that space. A rule 

that gives police the power to conduct such a search whenever an 

individual is caught committing a traffic offense, when there is no 

basis for believing evidence of the offense might be found in the 
Case No. 4-09-32 

-15-

vehicle, creates a serious and recurring threat to the privacy of 

countless individuals. Indeed, the character of that threat implicates 

the central concern underlying the Fourth Amendment-the concern 

about giving police officers unbridled discretion to rummage at will 

among a person’s private effects. 

Gilbert, 2009-Ohio-5528, at ¶34, quoting Gant, 556 U.S. ___, 129 S.Ct. at 

1720, 173 L.Ed.2d 485. 

{¶22} In State v. Canter, 10th Dist. No. 09AP-47, 2009-Ohio-4837, the 

Tenth Appellate District also considered Gant. In Canter, a police officer stopped 

a vehicle containing two occupants for a traffic violation, arrested the driver for 

driving without a valid license, and secured the driver in the patrol car. Thereafter, 

the officer ordered the other occupant, Canter, from the vehicle, and, upon his 

attempting to exit with a small backpack, ordered Canter to return the backpack to 

the vehicle. The officer then searched the backpack and uncovered drugs and drug 

paraphernalia. The Tenth District observed that Gant did not provide guidance for 

situations where the driver of the vehicle was arrested and secured, but the vehicle 

contained other occupants who were not arrested and secured. The court found 

that since this type of situation did not yet “fit into a well-defined, clearly 

delineated exception, Katz tells us that the search was per se unreasonable until 

another well-defined, well-delineated exception can be found.” Canter, 2009-

Ohio-4837, at ¶6, citing Katz, 389 U.S. 347. Nevertheless, in this specific 

situation, the court concluded that the search did fit into another exception—the 
Case No. 4-09-32 

-16-

automobile exception—because the officers conducting the stop smelled the odor 

of marijuana emanating from the vehicle, and that due to the odor, the officers had 

probable cause to search for evidence of drug abuse. Canter, 2009-Ohio-4837, at 

¶7-8. We also note that prior to conducting the search, the police had already 

determined that they were going to impound the vehicle. Canter, 2009-Ohio-4837, 

at ¶3. 

Assignment of Error 

{¶23} In her sole assignment of error, Grubb contends that the trial court 

erred in overruling her motion to suppress evidence based on the alleged 

unconstitutionality of the search pursuant to Gant, 556 U.S. ___, 129 S.Ct. 1710, 

173 L.Ed.2d 485. Specifically, Grubb argues that the search of her purse and the 

passenger compartment of the vehicle was not justified by either the interests of 

officer safety or preservation of evidence. We agree. 

{¶24} The state argues that the case sub judice is distinguishable from 

Gilbert, because multiple police officers were present at the stop in Gilbert, as 

opposed to the sole police officer present during the stop of the Grubbs; because 

receiving backup assistance would have been difficult given the rural area; because 

Grubb was close enough to Deputy Moser to pose a threat to him; because she had 

not been restrained and was not being watched by a separate law-enforcement 

officer, allowing her access to the vehicle; and because this situation was more 
Case No. 4-09-32 

-17-

analogous to Belton than Gant because Belton involved one officer and four 

unsecured arrestees under suspicion of a drug offense, whereas Gant involved 

several officers and one secured arrestee with a license-suspension offense. 

{¶25} This situation is similar to Gant in that Michael’s arrest was for a 

license-suspension offense, and not for a drug offense; thus, the rationale that drug 

offenders are often armed was inapplicable as a justification for this search. 

Additionally, although the Grubbs’ vehicle contained two occupants, more than 

the single occupant in Gant, this was also far fewer than the four unsecured 

arrestees involved in Belton. 

{¶26} Here, Deputy Moser candidly testified that he could not say whether 

the rural area where he stopped the Grubbs was a high-crime area; that he did not 

observe the Grubbs making any furtive movements when he initiated the stop; that 

he found no indication that Michael had a weapon after conducting a pat-down; 

that at the time he searched Grubb’s purse, Michael was arrested, handcuffed, and 

locked in the patrol car; and that at that point, it would not have been possible for 

Michael to reach for a weapon in the vehicle. Deputy Moser offered no testimony 

that he believed that evidence of Michael’s offense of driving under suspension 

could be found in the vehicle, nor is any such evidence apparent from the record. 

Thus, under the rule of Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485, we 
Case No. 4-09-32 

-18-

cannot find that the search was lawful pursuant to the search-incident-to-arrest 

exception to the general-warrant requirement. 

{¶27} As the search-incident-to-arrest exception is inapplicable here, we 

must move on to determine whether another exception to the warrant requirement 

was present and justified the search of Grubb’s purse and the passenger 

compartment. Deputy Moser testified that during the approximate 15-minute 

period during which he arrested and secured Michael, he did not see Grubb 

making any furtive movements; that Grubb questioned why he asked her to exit 

the vehicle, but had no “major attitude”; that Grubb made no unusual movements 

or threatening comments; that he did not believe that Grubb was going to shoot or 

hurt him; that he did not know whether he had any specific reason to suspect that 

she was armed, but that “when [he walks] up to a car [he suspects] that, you know, 

anybody could be armed with anything”; and that he searched the car because he 

“was doing a search incident to arrest. [He] was looking for anything, you know, 

weapons, anything illegal, anything that shouldn’t be in the car.” We cannot find, 

based on this testimony, that Deputy Moser possessed reasonable suspicion that 

Grubb was “dangerous” and might access the vehicle to retrieve a weapon. See 

Gant, 556 U.S. ___, 129 S.Ct. at 1721, 173 L.Ed.2d 485; Long, 463 U.S. at 1049, 

103 S.Ct. 3469. Compare Arizona v. Johnson (2009), 129 S.Ct. 781 (finding that 

an officer’s pat-down of a vehicle’s passenger did not violate Fourth Amendment 
Case No. 4-09-32 

-19-

constraints where the traffic stop was executed in a neighborhood associated with 

gang activity; where the officer testified that the defendant’s behavior and 

clothing, namely a bandana in a local gang color and possession of a police 

scanner, caused her to question his gang affiliation; where the officer learned upon 

questioning the defendant that he had served time in prison and was from a town 

associated with gang activity; and where the officer testified that all of the 

foregoing factors caused her to suspect that the defendant possessed a weapon). 

Finally, as Deputy Moser testified that he had decided not to impound the vehicle, 

we cannot find that the search would have been justified under the inventory 

exception to the warrant requirement. The state has not argued that any other 

exception to the warrant requirement was applicable in this situation, nor is any 

apparent from the record. Thus, we find that the search of Grubb’s purse and 

subsequent search of the passenger compartment was unreasonable and that the 

trial court erred in overruling her motion to suppress. 

{¶28} Accordingly, we sustain Grubb’s assignment of error. 

{¶29} Having found error prejudicial to the appellant herein, in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment reversed 

and cause remanded 
Case No. 4-09-32 

-20-

 PRESTON, J., concurs. 

 SHAW, J., concurs in judgment only. 

__________________ 

SHAW, J., concurring in judgment only. 

{¶30} I do not concur in the portions of the majority opinion applying by 

analogy the Second District Court of Appeals decision in Gilbert to the present 

case. On the contrary, I believe that the number of police officers involved in the 

original stop and arrest is a crucial factor in these cases. In this case, we have a 

single police officer with two individuals in a stopped vehicle in a remote location 

at 2:00 a.m. The driver of the stopped vehicle has been removed from the vehicle, 

arrested, and placed in the cruiser. The female passenger remains alone and 

unchecked in the stopped vehicle for several minutes while the officer processes 

the driver. 

{¶31} The driver has informed the police officer that the female passenger 

does not have a driver’s license. As a result, the officer had to necessarily make a 

decision about whether to impound the vehicle and/or transport the passenger 

somewhere, or leave both car and passenger by the side of the road at the remote 

location at 2:00 a.m. Having secured the driver, the officer surely had the right to 

approach the passenger to verify her identity, her license status, and her ability to 

obtain separate transportation apart from the stopped vehicle or the police cruiser. 
Case No. 4-09-32 

-21-

{¶32} It is significant to me that the officer at this point would not know 

what the passenger’s reaction would be to the fact that the defendant has been 

arrested and that she will not be permitted to drive the car anywhere else. If the 

officer intended to transport the passenger in his cruiser, the cases cited by the 

majority would clearly support the officer’s right to search her purse first. 

However, even under the limited testimony presented in this case, it is my view 

that a prudent police officer would be justified in checking the passenger's purse 

for his own safety when approaching the passenger in order to make any of the 

foregoing decisions. And in any event, in deciding whether to impound the vehicle 

or merely secure it to be left on the side of the road, some examination of the 

vehicle could be in order for the same reason. 

{¶33} The only reason that I concur in the judgment reached in this case, 

despite the foregoing reservations, is that in this rather unique instance, none of 

these circumstances are testified to or otherwise explained in the record. On the 

contrary, the officer in this case specifically testified that he was not concerned for 

his safety at any time, that he had decided not to impound the vehicle, and we do 

not know from the record whether the passenger was transported by the police 

officer or left with the car at the scene of the stop - or whether the officer even 

contemplated making any of these decisions in conjunction with his search of the 

purse. 
Case No. 4-09-32 

-22-

{¶34} For these reasons, I concur in the judgment reached in this particular 

case. 

______________________