
    State v. Mericle.
    [Cite as State v. Meriele, 15 Ohio Misc. 202.]
    (Nos. 27546 and 27486 —
    Decided March 6, 1968.)
    Common Pleas Court of Montgomery County.
    
      Mr. Lee C. Falke, prosecuting attorney, and Mr. Skinner, for plaintiff.
    
      Mr. Maurice R. Katz and Messrs. Goldman, Bogin & Fox, for defendant.
   Brenton, J.

This cause is before the court for determination of defendant’s motion to suppress all evidence seized pursuant to a search of the person of the defendant, together with a motion to dismiss the indictment as to unlawful possession of marijuana.

The defendant is also charged with carrying a concealed weapon. The evidence sought to be suppressed is a knife and a packet of marijuana.

Defendant was operating a motorcycle on Union Road in Montgomery County at a time and place wheu a uniformed sheriff’s deputy in a marked patrol car stopped defendant and placed him under arrest for traveling left of center over double yellow lines on a grade in the roadway.

The evidence shows that defendant is a young man and was accompanied on the motorcycle by another young man together with another motorcycle with two young men. The defendant wore a leather jacket and that during the proceedings incident to the arrest defendant’s right hand went into a right hand pocket of the jacket whereupon the deputy requested defendant to hold fast and the deputy thereafter removed his right hand from the pocket and then placed defendant to his car and patted him down, which disclosed the knife in the jacket pocket. The packet of marijuana then came out the jacket pocket when defendant’s hand was removed therefrom.

The legality of the arrest is not in question. The questions presented are:

1. Was the search incident to the arrest?

2. If so, was it reasonable?

3. May the seized articles be used in prosecutions not connected with the crime for which the arrest was made?

It would appear obvious that there could be no ‘ ‘ fruits of the crime” to be searched for. Nevertheless this court adopts the view that the officer, upon an arrest for a traffic violation, may search the person for weapons to protect himself where the arrestee’s actions or conduct indicate a propensity to inflict bodily harm. Such circumstances thereby render the search incident to the arrest and reasonable. Indeed, our graveyards contain the testimonials of the officers who failed to exercise that degree of caution and prudence under similar circumstances.

In State v. Call, 8 Ohio App. 2d 277, relied upon by the defendant the court recognized the rule that the person, when arrested, may be himself searched and the area in the arrestee’s immediate control.

Crawford v. Bannon, 336 F. 2d 505, while not a traffic case, demonstrates the difference in thinking on the question of searching for weapons. There the defendant was arrested for armed robbery after he was observed going to the door of his car, open it and then go to the trunk and open it. The keys to his car were taken and he was removed in a patrol wagon. The officer unlocked the car and seized a revolver from the glove compartment. The court held the search incidental to the arrest and contemporaneous with it and the search was legal even though the defendant was gone and posed no danger.

State v. Terry, 5 Ohio App. 2d 122, makes out a strong case for the actions of the officer in this case, to wit: the search for weapons. In fact that was a stop and frisk case, whereas in this case there was a lawful arrest.

It appears from the evidence that the search and seizure herein made by the officer of the person of the defendant meets the federal minimal standards. The search was incidental to a valid arrest. Furthermore the officer had probable cause to initiate and complete the search. See Ker v. California, 374 U. S. 23 and Harris v. U. S., 331 U. S. 145.

If a search is being lawfully conducted within the limitations required by the courts, if an article is found on the person not connected with the crime for which the arrest is made, and the article is subject to lawful seizure, i. e., contraband, instrumentality of crime, or fruit of crime, it may be seized and used in a separate prosecution. Abel v. U. S., 362 U. S. 217; Harris v. U. S., supra.

The Supreme Court of Ohio has applied this rule in Williams v. Eckle, 173 Ohio St. 410. There an arrest was made for grand larceny. The defendant was searched and narcotics found on his person. The court upheld a prosecution for the unlawful possession of a narcotic drug.

In this case then, the marijuana and the knife, being contraband, were under the facts and circumstances presented, lawfully seized and they may not be suppressed. See DiMarco v. Greene (U. S. C. A.), 13 Ohio Misc. 63.

No evidence or argument was presented on defendant’s motion to dismiss the indictment.

Accordingly then, the motions of the defendant as filed January 16, 1968, are hereby overruled.  