[Cite as State v. Murphy, 2014-Ohio-5002.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-14-13 

 v. 

JENNIFER L. MURPHY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 13-CR-0159 

Judgment Affirmed 

Date of Decision: November 10, 2014 

 

APPEARANCES: 

 

Kent D. Nord for Appellant 

Angela M. Boes for Appellee 
Case No. 13-14-13 

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WILLAMOWSKI, P.J.

{¶1} Defendant-appellant, Jennifer L. Murphy (“Murphy”), brings this 

appeal from the judgment of the Court of Common Pleas in Seneca County, Ohio, 

denying her Motion to Suppress and Exclude (“motion to suppress”), finding her 

guilty of possession of cocaine, aggravated possession of drugs, permitting drug 

abuse, and endangering children, and sentencing her to a total of twenty months in 

the Ohio Department of Rehabilitation and Correction, upon her entering a plea of 

no contest to those charges. For the reasons that follow, we affirm the trial court’s 

judgment. 

{¶2} All facts relevant to this appeal are undisputed pursuant to Stipulations 

filed by the parties in the trial court. On August 12, 2013, a search warrant was 

issued for Murphy’s residence, and “any persons, cell phones, vehicles on the 

property and vehicles registered to persons or under the control of persons found 

inside the residence at the time the warrant is executed.” (R. at 33, Stipulations, 

Ex. 1.) Among other things, the warrant authorized the executing officers to 

search for “[a]ny illegally possessed drugs or controlled substances,” “drug 

paraphernalia,” “money, money obtained by drug sales, records of drug sales, 

items used to prepare drugs for sale or shipment, container, safes,” and “any other 

items or instrumentalities used to facilitate drug use, drug trafficking or the crime 

under investigation.” (Id.) The trial court summarized the events surrounding the 

execution of the search warrant as follows: 
Case No. 13-14-13 

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Once entrance was gained into the apartment, officers found a 

female (Jennifer Murphy) lying on the living room couch with a 

child * * * and another child * * * lying in a seat on the living room 

floor. As they continued on through the residence, officers 

confronted another female (Jillian Murphy) in a Northeast bedroom. 

At that time, the officers secured all of the adults found inside the 

apartment. 

After the residence was secured, the officers entered the residence 

pursuant to the search warrant and identified the adult females as 

Jennifer Lynn Murphy and Jillian Nicole Murphy. They also 

identified the children * * *. The officers explained who they were, 

why they were at the apartment, and the authority they had to be 

there. As Detective Boyer walked through the apartment, the 

defendant indicated to several officers including Detective Boyer 

that she needed to go to the bathroom really bad. Detective Boyer 

advised the defendant that she needed to wait. 

Upon Detective Boyer’s request, officers searched the bathroom area 

for contraband and found nothing. Once the bathroom area was 

searched, detective Boyer allowed Jennifer to go to the bathroom but 

explained that she needed to be searched prior to entering the 

bathroom. After failed attempts to make contact with a female 

officer and upon asking Lieutenant Aaron Russell, Lt. Russell agreed 

to assist by searching the defendant and the other adult female. 

While Lt. Russell was removing the handcuffs from the defendant he 

asked numerous times if the defendant had anything on her person 

and she said no. Detective Boyer briefly left the apartment. 

Lieutenant Russell’s supplementary report states that Detective 

Boyer attempted to locate a female officer or deputy [but he] was 

unable to do so. Lieutenant Russell removed the defendant’s 

handcuffs and inquired if she had any drugs or anything else on her 

that should concern him. She stated that she did not. Lt. Russell 

conducted a visual inspection of her pants and found that she had no 

pockets and nothing was observed in her waist band. As he and the 

defendant began to walk towards the bedroom the defendant placed 

her right hand in the left side of her bra and Lieutenant Russell heard 

cellophane crinkling. Lt. Russell grabbed the defendant’s wrist and 

told her to stop moving as other officers secured her hands behind 

her back. He asked the defendant what was in the left side of her bra 
Case No. 13-14-13 

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and she stated nothing. Lieutenant Russell grabbed the elastic band 

at the bottom of her bra on her left flank and pulled the bra away 

from her body. In doing so, two items fell from the defendant’s bra 

through her shirt and onto the floor. 

(R. at 34, J. Entry at 2-3, Apr. 8, 2014.) The items were identified as containing 

US currency, a baggie of white powder, and a baggie of unknown blue pills. (R. at 

33, Stipulations, Ex. 5, 6.) 

{¶3} Based on the results of the search and additional evidence obtained by 

the police, Murphy was arrested and charged with four counts: (I) possession of 

cocaine, (II) aggravated possession of drugs, (III) permitting drug abuse, and (IV) 

endangering children. On February 24, 2014, Murphy filed her motion to 

suppress, requesting suppression of evidence found on her person during the 

search, as well as testimony of all police officers and agents of the State of Ohio 

and “all tangible evidence and test results procured by all said officers.” (R. at 23, 

Mot. Suppress.) In the alternative, Murphy asked for a dismissal of the charges 

contained in counts I and II of the Indictment. As the basis for her suppression 

motion, Murphy alleged violations of the Ohio Constitution, Article 1, Section 14, 

as well as violations of the Fourth and Fourteenth Amendments to the U.S. 

Constitution, which protect people from unreasonable searches and seizures. She 

additionally alleged a violation of R.C. 2933.32, which is entitled “Conduct of 

body cavity search or strip search; conditions; methods; reports; offense.” Under 

this provision, Murphy claimed a violation of law by the police officers, which she 
Case No. 13-14-13 

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claimed “should require the exclusion of the fruits of [this] illegal action.” (R. at 

23 at 4.) 

{¶4} During the scheduled hearing on the motion, the parties agreed to 

stipulate to the facts and agreed that the matter would be decided on the pleadings. 

The parties filed Stipulations on April 3, 2014, and the trial court issued its 

Judgment Entry on April 8, 2014, denying Murphy’s motion to suppress. 

Following the trial court’s denial of the motion to suppress, Murphy entered a plea 

of no contest with consent to a finding of guilty. Subsequently, the trial court 

found Murphy guilty of all counts and sentenced her to a total of twenty months in 

prison. 

{¶5} Murphy now appeals the trial court’s denial of her motion to suppress 

raising two assignments of error for our review. 

ASSIGNMENT OF ERROR I 

The trial court erred when it denied Appellant’s Motion to 

Suppress and Exclude the search of Appellant’s person in 

violation of Article I, Section 14 of the Ohio Constitution, the 

Fourth Amendment to the United States Constitution and 14th 

Amendments [sic] to the United States Constitution, and under 

Ohio Revised Code Section 2933.32. 

ASSIGNMENT OF ERROR II 

The trial court erred when it ruled that the search of Appellant 

was not a strip search as defined by Ohio Revised Code Section 

2933.32. 
Case No. 13-14-13 

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{¶6} An appellate review of the trial court’s decision on a motion to 

suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio 

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio 

App.3d 46, 51, 735 N.E.2d 953 (3d Dist.1999). We will accept the trial court’s 

factual findings if they are supported by competent, credible evidence because the 

“evaluation of evidence and the credibility of witnesses” at the suppression 

hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582 

N.E.2d 972 (1992); Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio App.3d 

at 51. But we must independently determine, without deference to the trial court, 

whether these factual findings satisfy the legal standard as a matter of law because 

“the application of the law to the trial court’s findings of fact is subject to a de 

novo standard of review.” Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio 

App.3d at 52. 

{¶7} Because this case does not involve any disputed facts, the only 

question before us is whether the trial court properly applied the law. We review 

this issue de novo and we start by addressing the second assignment of error. 

Second Assignment of Error— 

Strip Search under R.C. 2933.32 

{¶8} In the second assignment of error Murphy asserts that Lieutenant 

Russell’s act of grabbing the elastic band at the bottom of her bra and pulling it 
Case No. 13-14-13 

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away from her body constituted a strip search as defined in R.C. 2933.32. This 

statute states, in relevant parts: 

(A) As used in this section: 

* * * 

(2) “Strip search” means an inspection of the genitalia, buttocks, 

breasts, or undergarments of a person that is preceded by the 

removal or rearrangement of some or all of the person’s clothing 

that directly covers the person’s genitalia, buttocks, breasts, or 

undergarments and that is conducted visually, manually, by means of 

any instrument, apparatus, or object, or in any other manner while 

the person is detained or arrested for the alleged commission of a 

misdemeanor or traffic offense.1

 * * * 

(Emphasis added.) R.C. 2933.32. 

{¶9} The language of the statute cannot be construed to apply to Murphy’s 

situation so as to find that a strip search occurred. It is clear from the stipulated 

facts that no inspection of Murphy’s breasts, undergarments, or other body parts 

listed in the statute occurred after Lieutenant Russell had rearranged the elastic 

band at the bottom of her bra and pulled it away from her body. Therefore, there 

is no statutorily proscribed “inspection of the genitalia, buttocks, breasts, or 

undergarments of a person that is preceded by the removal or rearrangement of 

some or all of the person’s clothing.” (Emphasis added.) R.C. 2933.32(A)(2). 

 

1

 We note that under its express language the statute appears to apply “while the person is detained or 

arrested for the alleged commission of a misdemeanor or traffic offense.” (Emphasis added.) R.C. 

2933.32. Murphy did not allege that she was being detained for the alleged commission of a misdemeanor 

or a traffic offense, and the subsequent charges of drug possession were felonies. 
Case No. 13-14-13 

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{¶10} Therefore, the trial court did not err in finding that no strip search, as 

defined in R.C. 2933.32, had occurred in this case. The second assignment of 

error is overruled. 

First Assignment of Error—Denial of Motion to Suppress 

{¶11} Murphy argues that the search performed by Lieutenant Russell was 

illegal, resulting in violation of the Ohio and the U.S. Constitutions and therefore, 

its results should be suppressed. Here, she relies on further subsections of R.C. 

2933.32, which prohibit strip searches “except [as] authorized therein.” See State 

v. Wesley, 5th Dist. Stark No. 1999CA00226, 2000 WL 329938, *3 (Mar. 27, 

2000). Those subsections of R.C. 2933.32 state: 

(B)(1) Except as authorized by this division, no law enforcement 

officer, other employee of a law enforcement agency, physician, or 

registered nurse or licensed practical nurse shall conduct or cause to 

be conducted a body cavity search or a strip search. 

* * * 

(6) A body cavity search or strip search shall be conducted by a 

person or persons who are of the same sex as the person who is being 

searched and the search shall be conducted in a manner and in a 

location that permits only the person or persons who are physically 

conducting the search and the person who is being searched to 

observe the search. 

(Emphasis added.) R.C. 2933.32. 

{¶12} Murphy argues that a strip search performed by Lieutenant Russell, 

who was a person of opposite gender, and in a public area, violated R.C. 

2933.32(B)(6) and as such, resulted in unreasonable search and seizure, in 
Case No. 13-14-13 

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violation of the Ohio and the U.S. Constitutions. Because we already found that 

no strip search occurred, the premise of Murphy’s argument in the first assignment 

of error fails. 

{¶13} Furthermore, Ohio law does not mandate suppression of the evidence 

for violation of state law only. State v. Wurth, 3d Dist. Putnam No. 12-05-17, 

2006-Ohio-608, ¶ 7. The Ohio Supreme Court has held that “the exclusionary rule 

will not ordinarily be applied to evidence which is the product of police conduct 

violative of state law but not violative of constitutional rights.” City of Kettering 

v. Hollen, 64 Ohio St.2d 232, 235, 416 N.E.2d 598 (1980). “Only searches that 

are unreasonable in a constitutional sense mandate the suppression of evidence.” 

State v. Klemm, 41 Ohio App.3d 382, 383, 536 N.E.2d 14 (1st Dist.1987). 

Therefore, in Wesley, the Fifth District Court of Appeals found a violation of R.C. 

2933.32(B)(6), but then held that 

this violation was statutory in nature and not constitutional, and 

therefore, we find the exclusionary rule inapplicable. We reached a 

similar conclusion in State v. Rucker (Mar. 20, 1995), Stark App. 

No.1994 CA 00224, unreported. In Rucker, we stated: 

Although R.C. 2933.32 was violated, suppression of evidence is 

not among the remedies provided within the statute. The 

exclusionary rule is invoked only for violations of constitutional 

nature and will not be applied to statutory violations falling short 

of constitutional violations, absent a legislative mandate 

requiring the application of the exclusionary rule. City of 

Kettering v. Hollen (1980), 64 Ohio St.2d 232, 234-235, 416 

N.E.2d 598.Id. at 2. 

2000 WL 329938, at *4-5 (Mar. 27, 2000). 
Case No. 13-14-13 

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{¶14} There is no legislative mandate requiring the application of the 

exclusionary rule for a violation of R.C. 2933.32(B)(6). The remedies provided 

for a violation of this section of the Revised Code are spelled out as follows: 

(D)(3) If a person is subjected to a body cavity search or strip search 

in violation of this section, any person may commence a civil action

to recover compensatory damages for any injury, death, or loss to 

person or property or any indignity arising from the violation. In the 

civil action, the court may award punitive damages to the plaintiffs if 

they prevail in the action, and it may award reasonable attorney’s 

fees to the parties who prevail in the action. 

* * * 

(E)(1) Whoever violates division (B) of this section is guilty of 

conducting an unauthorized search, a misdemeanor of the first 

degree. 

R.C. 2933.32. As the statutory language explains, violation of R.C. 2933.32, if 

established, allows the person subjected to a strip search to “commence a civil 

action.” R.C. 2933.32(D)(3). The statute does not warrant suppression. 

{¶15} In sum, no strip search was conducted on Murphy and she did not 

establish a violation of state law that would result in the search being 

unconstitutional so as to require the application of the exclusionary rule. Murphy 

does not allege that any constitutional violations otherwise occurred2

 when 

Lieutenant Russell grabbed the elastic band at the bottom of her bra and pulled it 

away from her body. The first assignment of error is thus overruled. 

 

2

 Although in the trial court, Murphy raised an issue of probable cause for “this search of her person in a 

non-private area of her residence” (R. at 23, Mot. Suppress at 3), she does not assign an error to the trial 

court’s finding that in general, the search of her person was within the permissible scope of the search 

warrant (see R. at 34, J. Entry at 4, Apr.8, 2014). 
Case No. 13-14-13 

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Conclusion

{¶16} Having reviewed the arguments, the briefs, and the record in this 

case, we find no error prejudicial to Appellant in the particulars assigned and 

argued. The judgment of the Court of Common Pleas in Seneca County, Ohio is 

therefore affirmed. 

Judgment Affirmed 

ROGERS and SHAW, J.J., concur. 

/jlr