The State of Ohio, Appellee, v. Murrell, Appellant, 94 Ohio St. 3d 489

Alice Robie Resnick, J. This case requires us to consider the allowable scope of an automobile search incident to the arrest of an occupant of the vehicle. For the reasons that follow, we overrule this court’s decision in State v. Brown (1992), 63 Ohio St.3d 349, 588 N.E.2d 113, and therefore affirm the judgment of the court of appeals.

I Facts and Procedural History On September 15, 1999, a Cincinnati police officer stopped an automobile driven by defendant-appellant, Marvin Murrell, on a street with a posted speed limit of thirty-five miles per hour after the officer’s laser device registered appellant’s speed at forty-nine miles per hour. The officer ran a check on appellant’s license, which showed that there was an outstanding warrant for appellant’s arrest for failure to pay child support. The officer arrested appellant, handcuffed him, and placed him in the back seat of the police car.

The officer then proceeded to search appellant’s vehicle. On the floorboard in front of the driver’s seat, the officer found a small cloth bag. He opened it and found crack cocaine and powdered cocaine. The officer then also arrested appellant for drug possession. Appellant was indicted on two counts of possession of cocaine. He filed a motion to suppress the results of the search, and the trial court held a hearing on the motion on November 19, 1999. The arresting officer provided the only-testimony at the hearing, giving his account of the stop and arrest.

The officer testified that the traffic stop was a routine one, that he never felt that he was in any danger during the course of the stop, that he never sought appellant’s permission to search the vehicle, and that he would not have impounded the car (and therefore no inventory search of the vehicle would have occurred) if he had not found the cocaine. On February 10, 2000, the trial court granted the motion to suppress in a handwritten entry that gave no reasons for the ruling.

The trial court apparently relied on this court’s decision in Brown, 63 Ohio St.3d 349, 588 N.E.2d 113, in which this court held at the syllabus that “[a] police officer may not open a small, closed container found inside an automobile’s glove compartment solely as a search incident to the driver’s arrest for a traffic violation, after the officer has the suspect — and sole occupant of the vehicle — under control in the police cruiser. (New York v. Belton [1981], 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, distinguished; the Fourth Amendment to the United States Constitution and

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Section 14 of the Ohio Constitution, applied.)” The state appealed pursuant to R.C. 2945.67, certifying that the appeal was not taken for the purpose of delay and that the trial court’s ruling rendered the state’s proof so weak that any reasonable possibility of effective prosecution was destroyed. See Crim.R. 12(K) (formerly Crim.R. 12[J]). The court of appeals reversed the judgment of the trial court, distinguishing the situation before it from that in Brown.

The court of appeals focused on the fact that Brown’s syllabus specifically mentioned arrest for a “traffic violation,” and found that Brown did not apply because appellant was not arrested for a traffic violation but for nonpayment of child support. While acknowledging that the officer did not have probable cause to believe that there was contraband in the vehicle, the court of appeals upheld the search pursuant to the United States Supreme Court’s Belton decision. The cause is now before this court pursuant to the allowance of a discretionary appeal.

II Search of Automobile Incident to Arrest of Occupant In Belton, 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775, the United States Supreme Court articulated a specific rule for automobile searches within the “search incident to arrest” exception to the warrant requirement of the Fourth Amendment to the United States Constitution.

The Belton court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnotes omitted.) Earlier, the Supreme Court in Chimel v.

California (1969), 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694, a case not involving a motor vehicle, had held that when a police officer makes a lawful custodial arrest, a warrantless search of the person arrested and of the immediate surrounding area is justified to discover any weapons that the arrestee might seek to use and to prevent the concealment or destruction of evidence. The Supreme Court viewed its holding in Belton as the establishment of a bright-line rule that extended the principles of Chimel to arrest situations involving motor vehicles.

The Supreme Court in Belton, in explaining why searching a closed container found in the passenger area of the vehicle is also permissible, further illuminated its reasoning, stating that “[i]t follows [from Chimel ] that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. * * * Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” 453 U.S. at 460-461, 101 S.Ct. at 2864, 69 L.Ed.2d at 775.

In support of its decision to apply a bright-line rule, the Belton court stated that “as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments ‘can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.’ LaFave, ‘Case-By-Case Adjudication’ versus ‘Standardized Procedures’: The Robinson Dilemma, 1974 S.Ct.

Rev. 127, 142. “In short, ‘[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ Duna way v. New York [1979], 442 U.S. 200, 213-214 [99 S.Ct. 2248, 2257, 60 L.Ed.2d 824, 836].” 453 U.S. at 458, 101 S.Ct. at 2863, 69 L.Ed.2d at 773-774.

The Belton court then reviewed cases from other courts that had encountered the issue before it, and observed that “[w]hile the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.

Our reading of the cases suggests the generalization 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 in order to grab a weapon or evidentiary [item].’ Chimel, 395 U.S. at 763 [89 S.Ct. at 2040, 23 L.Ed.2d at 694]. In order to establish the workable rule this category of cases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization.” 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 774-775.

With this court’s decision in Brown, 63 Ohio St.3d 349, 588 N.E.2d 113, Ohio follows a different rule on automobile searches incident to an arrest than was established in Belton. The Brown opinion actually set forth two separate rationales for not following Belton.

Although the syllabus in Brown and the text of the opinion (see id. at 351-352, 588 N.E.2d at 115) assert that the court “distinguishe[s]” the situation in that case from the situation in Belton, this court in Brown also stated, “If Belton does stand for the proposition that a police officer may conduct a detailed search of an automobile solely because he has arrested one of its occupants, on any charge, we decline to adopt its rule.” (Emphasis sic.) Id. at 352, 588 N.E.2d at 115.

The Brown opinion then included a footnote to the effect that if the two cases were not distinguishable, the decision to decline to adopt Belton’s rule was based on

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Article I of the Ohio Constitution: “ ‘Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution.’ ” Id. at fn. 3, quoting California v. Greenwood (1988), 486 U.S. 35, 43, 108 S.Ct. 1625, 1630, 100 L.Ed.2d 30, 39. See, also, Brown at 352, 588 N.E.2d at 115 (stating that the warrantless search of the automobile violated the Ohio Constitution).

A close reading of both Belton and Brown reveals that, although the Brown opinion attempted to distinguish that case from Belton based on the differing facts of the two cases, the attempt was unfounded. While it appears clear that there was probable cause for the search in Belton, while there was not in Brown (the point upon which the opinion in Brown relied to distinguish the two, id. at 351-352, 588 N.E.2d at 115), the United States Supreme Court in Belton deliberately chose not to analyze the situation before it under the automobile exception to the warrant requirement, which is based on probable cause.

Id., 453 U.S. at 462-463, 101 S.Ct. at 2865, 69 L.Ed.2d at 776, fn. 6 (“Because of this disposition of the case, there is no need here to consider whether the search and seizure were permissible under the so-called ‘automobile exception.’ ”). Instead, the Belton court purposely determined to craft a bright-line rule of sufficient scope to encompass the facts of Broum, as well as those of the case sub judice.

Given these considerations, it becomes apparent that this court’s statement in Brown, 63 Ohio St.3d at 352, 588 N.E.2d at 115, that “the warrantless search of Brown’s automobile was unreasonable and violated the Fourth Amendment to the United States Constitution and

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Article I of the Ohio Constitution” was, at most, only partially supportable. Since Belton should not have been distinguished, the United States Supreme Court’s decision in Belton as to the Fourth Amendment was binding on this court, and this court should have held that the Fourth Amendment'was not violated by the search in Broum. Therefore, the only possibly justifiable rationale behind this court’s decision in Broum is the alternative reasoning set forth in that case — that the search was inconsistent with

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Article I of the Ohio Constitution. Ill State v. Brown Reassessed The resolution of the case before us thus turns on a consideration of this court’s decision in Broum, which can accurately be said to have relied on

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Article I to decline to give full effect to Belton. Within that consideration, and depending on its outcome, a further issue potentially could arise in the circumstances here, based on the court of appeals’ decision to distinguish Brown — if Brown should be reaffirmed, what should its scope be? The Fourth Amendment and

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Article I contain virtually identical language, with both prohibiting unreasonable searches and seizures and both imposing a warrant requirement. See State v. Robinette (1997), 80 Ohio St.3d 234, 238, 685 N.E.2d 762, 766-767. For that reason, this court observed in Robinette that, for some time, it “has interpreted

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Article I of the Ohio Constitution as affording the same protection as the Fourth Amendment.” Id. at 238, 685 N.E.2d at 767. See, also, State v. Orr (2001), 91 Ohio St.3d 389, 391, 745 N. E.2d 1036, 1038-1039. In making that point, this court in Robinette cited a number of cases, including State v. Geraldo (1981), 68 Ohio St.2d 120, 125-126, 22 O.O.3d 366, 369-370, 429 N.E.2d 141, 145-146 (reach of

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Article I is coextensive with that of Fourth Amendment); and State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271, 1273, fn. 1 (this court has interpreted

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Article I to protect the same interests and in a manner consistent with the Fourth Amendment). After reviewing the cases, this court in Robinette, 80 Ohio St.3d at 239, 685 N.E.2d at 767, determined that “we should harmonize our

interpretation of

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Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to find otherwise.” This court in Robinette obviously left open the possibility that, depending on the circumstances, this court may decide to give independent effect to

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Article I in the appropriate case. In actually relying on

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Article I to find that the evidence was inadmissible on the facts before it, the Brown court did not cite any authorities, including those cited in Robinette that appear inconsistent, for its decision to interpret

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Article I more stringently than the Fourth Amendment. Also, Robinette, decided more than five years after Brown, did not cite Brown in its consideration of when

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Article I might be interpreted differently from the Fourth Amendment. As several of the briefs in this case indicate, most jurisdictions, unlike Ohio in Brown, follow the Belton rule regarding automobile searches incident to a lawful arrest, even where the arrestee has been handcuffed and placed in a police vehicle at the time of the search. See, e.g., State v. Fernon (2000), 133 Md.App. 41, 57-58, 754 A.2d 463, 472; United States v. Doward (C.A.1, 1994), 41 F.3d 789, 791-792, fn. 1; United States v. White (C.A.6, 1989), 871 F.2d 41, 44. Included within the group of states that follow Belton are states with specific constitutional provisions that, like Ohio’s

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Article I, essentially mirror the Fourth Amendment. See, e.g., State v. Charpentier (1998), 131 Idaho 649, 962 P.2d 1033; State v. Fry (1986), 131 Wis.2d 153, 171-172, 388 N.W.2d 565, 573. While a few states, such as Ohio in Brown, have rejected Belton in part, most states have chosen to fully embrace Belton’s bright-line rule. In light of the standard set forth in Robinette, we take this opportunity to review the propriety of this court’s decision in Brown. To the 'extent that Brown apparently found persuasive reasons not to harmonize

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Article I with the Fourth Amendment in the situation before it, we believe that the time has come to reassess Brown and the assumptions upon which that decision was based. As a starting point, it is critical to recognize that Belton’s rule applies only when there is already a lawful custodial arrest. Concerns about a possible lack of probable cause to conduct a search in a Belton situation are eased by the fact that probable cause must have been present to arrest the occupant of the vehicle in the first place.

In addition, as the Belton holding explicitly states, a Belton search must be “contemporaneous” with the arrest, occurring at or very near the time of the arrest. Id., 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775. Furthermore, on its face, Belton’s rule applies only if an arrest is “custodial.” Id. The United States Supreme Court, in Knowles v.

Iowa (1998), 525 U.S. 113, 118-119, 119 S.Ct. 484, 488, 142 L.Ed.2d 492, 497-498, found that a “search incident to citation,” in which a police officer searched a vehicle incident to the issuance of a citation in lieu of an arrest in a routine traffic stop, violated the Fourth Amendment when there was no prior arrest to justify the search. Belton does not authorize indiscriminate fishing expeditions; only motor vehicles very recently occupied by those who have already been lawfully arrested are subject to a Belton search.

The Belton court reached a calculated conclusion that a search of the motor vehicle incident to arrest in this situation is a reasonable one, justified principally by concerns for officer safety and preserving evidence, and the advantages of having a bright-line rule in such situations.

We find it significant that Justice Stewart, who wrote the majority opinion in Belton, also wrote the majority opinion in Chimel, which established strict limitations on the “search incident to arrest” exception, and which reversed the conviction at issue in that case as based on a search the Chimel court determined to be unreasonable. See 395 U.S. at 768, 89 S.Ct. at 2043, 23 L.Ed.2d at 697.

Obviously, Justice Stewart and the other justices in the majority in Belton believed that the specific concerns at issue in that case justified extension of the Chimel rule to cases involving an arrest of the occupant of a motor vehicle. Both Chimel and Belton are seminal Fourth Amendment decisions that contribute to a comprehensive jurisprudence regulating what is acceptable police conduct and what is not in warrantless searches incident to an arrest. We believe that the same considerations that led the Belton court to establish its bright-line rule justify the adoption today of that rule by this court.

We now conclude that Brown was erroneously decided, and that this court in Brown failed to appreciate the practical advantages underlying Belton’s bright-line rule. The case before us and Brown do not present persuasive reasons to depart from the principle that

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Article I and the Fourth Amendment should be harmonized whenever possible. For all the foregoing reasons, we conclude that in the circumstances before us we should harmonize the Fourth Amendment and

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Article I of the Ohio Constitution. We thus overrule Brown and its syllabus paragraph. Consistent with Belton, we hold that when 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. Under our holding, the warrantless search of appellant’s vehicle did not violate the Fourth Amendment or

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Article I. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Douglas, F.E. Sweeney, Cook and Lundberg Stratton, JJ., concur. Moyer, C.J., and Pfeifer, J., dissent. . The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in them persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” .

Section 14,

Article I of the Ohio Constitution provides: “The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.” . The United States Supreme Court recently reiterated its commitment to Belton’s bright-line rale in Florida v. Thomas (2001), 532 U.S. 774, 121 S.Ct. 1905, 150 L.Ed.2d 1.

In that case, the Supreme Court granted certiorari “to consider whether [the Belton ] rule is limited to situations in which the officer initiates contact with the occupant of a vehicle while that person remains inside the vehicle.” Id. at-, 121 S.Ct. at 1908, 150 L.Ed.2d at 5. However, the court never reached that issue on the merits, holding that the case did not involve a final judgment or decree from the court below and that the case did not fit any category that would nevertheless allow it to be treated as final for jurisdictional purposes, and so dismissed the writ for want of jurisdiction.

Id. at-, 121 S.Ct. at 1909-1910, 150 L.Ed.2d at 6. The specific issue in Thomas is not relevant to the case sub judice.