IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:17-cr-210

John Frazier Odoms, III

OPINION AND ORDER

This matter came before the court on June 4, 2018, for an

evidentiary hearing on defendant’s motion to suppress evidence

obtained during a search of defendant’s person following his arrest

on September 12, 2017, and a search of the vehicle which defendant

had entered immediately prior to his arrest.

Defendant alleged in his motion that on September 10, 2017,

local news sources reported the use of force by police officers

against Timothy Davis, an African-American. That evening, the

People’s Justice Project of Ohio engaged in a demonstration at

Columbus City Hall, protesting the police action and demanding an

investigation. Shortly thereafter, a video was released which

included comments made by a Columbus police officer who asked one

of the officers who arrested Mr. Davis why he didn’t “just choke

the [] life out of him?” In response to these videos, defendant,

who is also African-American, allegedly posted emotionally charged

comments on social media websites which advocated killing white

police officers and their families. Defendant alleges that

Columbus police officers decided to locate and detain him on an

outstanding arrest warrant based on his race and in retaliation for

his exercise of First Amendment rights in posting messages on

social media, and that the ensuing searches of his person and the

vehicle he was arrested from were therefore constitutionally
invalid.

I. Evidence Presented

Columbus Police Officer Joseph Houseberg, a patrol officer in

the Seventh Precinct, testified at the hearing that he learned that

defendant had used social media to make threats against white

police officers and their families. He was informed that these

posts urged the killing of all white officers and the rape of their

wives. Officer Houseberg was unaware of any reports that defendant

had personally threatened specific officers. Officer Houseberg

testified that after learning of defendant’s posts, he obtained a

LEADS report concerning defendant’s criminal history, which

included prior arrests for domestic violence, aggravated burglary,

burglary, and having a weapon while under disability, as well as a

past history of resisting arrest. The first page of the LEADS

report, Government’s Exhibit 2, stated that defendant was a “WANTED

PERSON-CAUTION” with the additional notations “ARMED AND

DANGEROUS,” “VIOLENT TENDENCIES” and “KNOWN TO ABUSE DRUGS.”

The LEADS report also indicated an outstanding warrant for

failure to appear in court in Delaware County on marijuana

possession and open container charges. Officer Houseberg testified

that he contacted the Delaware Police Department and verified that

the arrest warrant was still active and outstanding, and that the

Delaware agency wanted to enforce the warrant. Officer Houseberg

also learned that defendant’s Ohio driver’s license had been

suspended. He obtained a possible address for defendant. Officer

Houseberg testified that patrol units are among several units which

execute outstanding warrants. Although the defendant’s address was

outside Officer Houseberg’s assigned precinct, his supervisor

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authorized him to look for the defendant to arrest him on the

outstanding warrant.

On September 12, 2018, Officer Houseberg and Officer Brumfield

proceeded in a marked cruiser to a location near an address

connected to the defendant. Officer Pelligrini, who was in

civilian clothes in an unmarked cruiser, parked near the address

and monitored a vehicle parked outside which matched a photograph

of the vehicle posted by defendant on social media. Officer

Houseberg testified that while waiting, he watched a video on

social media of defendant making violent gestures. Officer

Pelligrini observed defendant leave the apartment. Defendant

entered the vehicle and started the car. Officer Brumfield then

drove to the address, parked the cruiser to the rear of the

defendant’s vehicle, and approached the vehicle to arrest the

defendant. In addition to Officer Houseberg’s testimony concerning

the arrest, the government introduced a DVD at the hearing which

contained audio and visual recordings from the officers’ body

cameras.

Officers Brumfield and Houseberg exited the cruiser and

approached defendant’s vehicle with their guns drawn. Officer

Brumfield went to the driver’s side door, and Officer Houseberg

went to the passenger side. They yelled at defendant to get out of

the car. Their voices were raised as they approached because the

car windows were closed. Officer Houseberg observed defendant

reach down to the floor of the vehicle with his left hand. The

officers warned defendant that they would break a window if he did

not unlock the vehicle. When defendant failed to unlock the

vehicle, Officer Houseberg broke the passenger window with his

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baton and unlocked the car.

Officer Houseberg further testified that Officer Brumfield

opened the driver’s side door. Defendant got out of the vehicle,

and Officer Brumfield handcuffed defendant with his arms behind his

back. The video does not reveal any use of force against defendant

that could be considered excessive or unreasonable. Defendant

asked why he was being arrested, and was told that there was a

warrant for his arrest. Officer Houseberg observed the black

handle of a firearm sticking out of defendant’s pocket. Officer

Brumfield asked defendant if he had a gun, and defendant responded

that he did. Officer Houseberg removed the gun from defendant’s

pocket and placed in on the top of the vehicle. Defendant was

placed under arrest on the warrant and for CCW (carrying a

concealed weapon). These events occurred over a period of less

than two minutes.

Defendant was searched and secured in the cruiser. Officer

Brumfield placed the gun in a bag to be collected as evidence. 

Defendant stated that the vehicle was not his car, and denied that

he was driving the car. One of the officers noted that defendant

was “tripping” about the car (or nervous about what a search of the

car might reveal). A tow truck was requested for the vehicle, and

Officer Houseberg started an inventory sheet in preparation for

impounding the vehicle. He testified that because defendant was a

suspended driver in control of a vehicle with the motor running,

and because defendant was arrested from the vehicle, the

circumstances satisfied city requirements for impounding vehicles,

as well as the directions of his supervisor regarding impounding

the vehicles of unlicensed drivers. The impound sheet was

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completed to note the damage to the window and to inventory the

contents of the vehicle. Officer Houseberg looked under the

driver’s side seat where defendant had reached with his left hand. 

He found a box under the middle portion of the driver’s seat which

contained small bundles of suspected heroin and cocaine in plastic

baggies.

Defendant was subsequently indicted in the instant case for

one count of being a felon in possession of a firearm, one count of

possession with intent to distribute cocaine base, and one count of

possession with intent to distribute heroin.

II. Validity of Arrest

The officers in this case initially approached defendant to

detain him on an active arrest warrant from Delaware County. This

warrant was listed in the LEADS report which was viewed by Officer

Houseberg prior to defendant’s arrest. Officer Houseberg also

called the agency in Delaware and confirmed that the warrant was

still active and that Delaware County was willing to extradite and

come and take custody of the defendant on this warrant.

Suggesting that Officer Houseberg did not verify that the

arrest warrant was still active until after the arrest, defense

counsel asked him about a September 12, 2017, entry in LEADS which

reported that the defendant was in custody and asked the Delaware

County agency to advise if their warrant was still good and if they

wanted to extradite the defendant. See Defendant’s Exhibit B. In

that same report, the Delaware County Police Department confirmed

that the warrant was good and that they would extradite the

defendant. However, Officer Houseberg testified that this request

for information was entered after defendant’s arrest by a clerk,

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and that the entry received in response was simply a subsequent

confirmation of the earlier information which he received by phone

prior to defendant’s arrest. The court finds that the testimony of

Officer Houseberg is credible. The evidence presented at the

hearing established that Officer Houseberg arrested defendant based

on a valid arrest warrant from Delaware County which he verified

prior to locating defendant.

Defendant also makes much of the fact that the outstanding

warrant was for the failure to appear in court on two minor

misdemeanor charges. However, that does not detract from the

validity of the warrant. Bench warrants serve the important

function of ensuring the appearance of defendants so that criminal

proceedings can proceed to a conclusion. The court finds that

defendant’s arrest was based on a valid and active warrant from

Delaware County.

III. Search of Defendant’s Person Incident to Arrest 

One exception to the warrant requirement is a search incident

to arrest. United States v. Smith, 549 F.3d 355, 359 (6th Cir.

2008). An officer may conduct a warrantless full search of an

arrestee’s person incident to a lawful custodial arrest. United

States v. Robinson, 414 U.S. 218, 234-35 (1973)(exception to the

Fourth Amendment warrant requirement is based on the need to disarm

the suspect in order to take him into custody and the need to

preserve evidence on his person for later use at trial); United

States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004). After

defendant exited the vehicle, Officer Houseberg observed the black

handle of a gun sticking out of defendant’s pocket. The firearm

was properly seized during a valid search of defendant’s person

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incident to arrest.

IV. Search of the Vehicle

The right to search a motor vehicle incident to arrest was

narrowed in Arizona v. Gant, 556 U.S. 332, 351 (2009). After Gant,

police may search a vehicle incident to a recent occupant’s arrest:

1) if the arrestee is within reaching distance of the passenger

compartment at the time of the search; 2) if it is reasonable to

believe the vehicle contains evidence of the offense of arrest; or

3) if some other exception to the warrant requirement applies.

The first exception in Gant follows Michigan v. Long, 463 U.S.

1032, 1049 (1983). In that case, the Supreme Court held that

police may engage in a protective search of a vehicle passenger

compartment after the defendant is removed from the vehicle when

the officer has a reasonable suspicion that the individual or a

passenger is dangerous and might access the vehicle to gain

immediate control of a weapon. See United States v. McCraney, 674

F.3d 614, 620 (6th Cir. 2012). This exception to the warrant

requirement is based on ensuring the safety of the officers. It

does not apply in this case, as defendant was placed under arrest

and secured in the cruiser at the time the vehicle was searched.

The second prong in Gant permits a search of the vehicle

incident to arrest if it is “reasonable to believe” that evidence

relevant to the offense of arrest will be found in the vehicle. 

This “reasonable to believe” standard may be less than probable

cause and more akin to the “reasonable suspicion” standard required

to justify a stop and frisk under Terry v. Ohio, 392 U.S. 1, 21-22

(1968). See United States v. Edwards, 769 F.3d 509, 514 (7th Cir.

2014); United States v. Rodgers, 656 F.3d 1023, 1028 n. 5 (9th Cir.

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2011); United States v. Vinton, 594 F.3d 14, 25 (D.C.Cir. 2010). 

A suspect can be arrested for multiple crimes, and “[w]hen that’s

the case, the police can search a vehicle incident to arrest if

they have reason to believe that the vehicle contains evidence of

any of the offenses of arrest. Nothing in Gant prohibits this.” 

Edwards, 769 F.3d at 515.

The Delaware County arrest warrant for failure to appear would

not justify the search of the vehicle under the second Gant

exception, as the officers could not expect to find any evidence

concerning defendant’s failure to appear in the vehicle. However,

Officer Houseberg testified that defendant was also arrested for

CCW based on the firearm seized from his pocket as he was being

secured outside the vehicle. Defendant was seen reaching down to

the area under the seat, and appeared nervous about what might be

found in the car, claiming that it was not his vehicle. Officer

Houseberg was also aware from the LEADS report that defendant could

be armed and dangerous and that he had a past history of weapons

offenses. The officers could reasonably believe that additional

weapons or ammunition relevant to the CCW offense might be found in

the vehicle. See United States v. Johnson, 627 F.3d 578, 584 (6th

Cir. 2010)(upholding the search of defendant’s vehicle after he had

been arrested for possession of a firearm because the police “could

have reasonably believed that ammunition or additional firearms

were in the car or in containers in the car, especially in the

passenger area searched by police that was formerly occupied by

Johnson”).

The drugs found in the vehicle were also discovered pursuant

to a valid inventory search. An inventory search is an exception

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to the warrant requirement of the Fourth Amendment. United States

v. Hockenberry, 730 F.3d 645, 658 (6th Cir. 2013)(citing Colorado

v. Bertine, 479 U.S. 367, 371 (1987)). Discretion as to

impoundment is permissible so long as that discretion is exercised

according to standard criteria and on the basis of something other

than suspicion of evidence of criminal activity. Hockenberry, 730

F.3d at 658. An impoundment decision is not rendered impermissible

simply because alternatives to impoundment may exist. Hockenberry,

730 F.3d at 658. Impoundment is permissible even though the

arrested driver was not offered an opportunity to make other

arrangements. Colorado v. Bertine, 479 U.S. 367 (1987). Although

an inventory search may not be undertaken for the purposes of

investigation, the mere fact that an officer suspects that

contraband may be found in a vehicle does not invalidate an

otherwise proper inventory search. Hockenberry, 730 F.3d at 659.

Officer Houseberg started an inventory sheet prior to

searching the vehicle. The decision to impound the vehicle was

made pursuant to standard procedures. Officer Houseberg testified

that because defendant was a suspended driver found in control of

a vehicle with the motor running, and because defendant was

arrested from the vehicle, the circumstances satisfied city

requirements for impounding vehicles, as well as the directives of

his supervisor regarding impounding the vehicles of unlicensed

drivers. The impound sheet was completed to note the damage to the

window and to inventory the contents of the vehicle. Logging any

property found in the vehicle was particularly important because

defendant stated that the vehicle was not his. The decision to

impound the vehicle was also reasonable due to the car’s broken

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window, which would have invited thieves to loot the car if it had

been left where it was. The drugs discovered during the course of

the inventory search are admissible as evidence.

V. Subjective Intent of the Officers

Generally, if an officer has probable cause to arrest based on

a valid arrest warrant, the resulting arrest is lawful irrespective

of the subjective motive of the officers. See Whren v. United

States, 517 U.S. 806, 813-15 (1996). See Mesa v. Prejean, 543 F.3d

264 (5th Cir. 2008)(if an officer has probable cause to arrest,

ordinarily there can be no inquiry into whether the officer was

also motivated by comments made by the arrestee). The

permissibility of a particular law enforcement practice is

ordinarily judged by balancing its intrusion on an individual’s

Fourth Amendment interests against its promotion of legitimate

governmental interests. Delaware v. Prouse, 440 U.S. 648, 654

(1979). However, where the arrest is based on probable cause,

there is typically no need to conduct an analysis balancing

governmental and individual interests under the Fourth Amendment. 

Whren, 517 U.S. at 816-17.

The Supreme Court in Whren stated that where probable cause

exists, an inquiry into the subjective motives of the officers or

a balancing analysis is only warranted in cases alleging selective

enforcement of the law based on an impermissible factor such as

race, or cases involving “searches or seizures conducted in an

extraordinary manner, unusually harmful to an individual’s privacy

or even physical interests” such as seizure by means of deadly

force, unannounced entry into a home, entry into a home without a

warrant, or physical penetration of the body. Id. at 813, 818.

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Defendant alleges that the officers were subjectively

motivated to locate and arrest him in retaliation for his exercise

of First Amendment rights and due to his race. He argues that this

case therefore presents circumstances under Whren which warrant an

inquiry into the subjective motives of the offices.

It is questionable that defendant’s posts, which called for

the killing of white police officers and the rape of their wives,

fall within the scope of the First Amendment. True threats are not

protected by the First Amendment. United States v. Coss, 677 F.3d

278, 289 (6th Cir. 2012); United States v. Hankins, 195 F. App’x

295, 301 (6th Cir. 2006)(the First Amendment does not protect

threats of violence). A true threat is a statement which the

speaker means to communicate as a serious expression of an intent

to commit an unlawful act of violence to a particular individual or

group. Virginia v. Black, 538 U.S. 343, 359 (2003); Hankins, 195

F. App’x at 301 (a true threat is a statement that an objective

rational observer would tend to interpret in its factual context as

a credible threat). The speaker need not actually intend to carry

out the threat. Black, 538 U.S. at 360. Rather, this First

Amendment exception is intended to protect individuals from the

fear of violence and the disruption that fear engenders, as well as

from the possibility that the threatened violation will occur;

intimidation is a type of true threat. Id. A statement need not

be communicated directly to the targeted individual in order to

constitute a true threat (comments on YouTube or Facebook can

qualify), and a statement can be a true threat even if the speaker

lacks the ability to make good on his promised aggression. United

States v. Houston, 683 F. App’x 434, 438 (6th Cir. 2017).

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Considering the fact that recent news reports have included

incidents of police officers being shot by ambush, and taking into

account the officers’ knowledge of defendant’s prior criminal

record, the officers could reasonably interpret defendant’s posted

comments as credible threats and serious expressions of an intent

to commit acts of violence against Columbus police officers and

their families.

Even assuming that defendant’s posts constituted protected

speech and that an examination of the officers’ subjective intent

is warranted, the court concludes that this case is not one

involving selective enforcement based on race or some other

protected constitutional interest. See Whren, 517 U.S. at 818. 

There is no evidence from which the court can reasonably infer that

the officers’ decision to execute the arrest warrant was motivated

by the defendant’s race or by a subjective intent to retaliate

against defendant for making the posts. Officer Houseberg agreed

that an arrest based on race or racial views would be improper. 

Officer Houseberg testified that defendant was arrested because he

had an outstanding warrant for his arrest.

Officer Houseberg testified that he was concerned about the

posts. Even if this court were to assume that the officers were

also motivated to investigate defendant as a person who might carry

out the threats of violence contained in those posts, this is not

the same thing as wanting to retaliate against defendant simply

because he made the posts. The record does not support defendant’s

allegations of retaliation. Based on Officer Houseberg’s knowledge

of defendant’s threats to kill white officers and rape their wives

and his familiarity with defendant’s prior criminal record, his

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concerns about the possibility that defendant might engage in

violent acts against police officers were justified. The decision

to arrest defendant on an active warrant so that the posts could be

investigated was not unreasonable under the Fourth Amendment.

Considering and balancing all of the circumstances in this

case and the interests of the parties, defendant’s arrest and the

ensuing searches were reasonable and valid under the Fourth

Amendment.

VI. Conclusion

In accordance with the foregoing, defendant’s motion to

suppress (Doc. 21) is denied.

Date: June 8, 2018 s/James L. Graham 

 James L. Graham

 United States District Judge

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