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State v. Rogers10/7/2005
e of a permissible Terry search when he placed his hands inside appellant's pockets. Our review of the videotape leads us to conclude that, with respect to this aspect of the search, appellant is correct. When appellant was first removed from the car, the investigating officers were authorized to conduct only a limited search for weapons. In conducting the more extensive search of appellant's pockets, they clearly exceeded the scope of their authority under Terry.
{ } According to appellant, the Terry violation invalidates the search entirely and, further, compels the conclusion that the evidence should have been suppressed. We disagree.
{ } We initially note that the improper portion of the search yielded no weapon or contraband. The first incriminating item to be found during the search was the gun, which we have already determined was properly discovered upon the unzipping of appellant's jacket. The cocaine was not discovered until after appellant was arrested for unlawful possession of a weapon, and was properly discovered pursuant to the search incident to that arrest. Thus, it does not appear that any evidence was obtained by unlawful means.
{ } Even assuming, arguendo, that the Terry violation tainted the entire search or, in the alternative, that the unzipping of appellant's jacket was improper, such would not conclude our analysis. Instead, we would have to consider whether the inevitable discovery exception applies to permit introduction of the evidence.
{ } Under the inevitable discovery exception to the exclusionary rule, illegally obtained evidence is admissible at trial if the state demonstrates within a reasonable probability that law enforcement officers would inevitably have discovered the evidence during the course of a lawful investigation. State v. Perkins (1985), 18 Ohio St.3d 193, 196.
{ } In the instant case, Gadberry testified that the reason he missed the gun when he patted appellant down from the rear was that the gun and the holster swung away from appellant's body when he leaned in toward the car. The trial court agreed with this explanation, and expressly found that the gun would likely have been found by a frontal pat down.
{ } On the basis of the foregoing, we find that the prosecution adequately demonstrated that had the officers conducted a thorough pat down search of appellant's person -- as we have already determined they were authorized to do under the circumstances -- they likely would have discovered appellant's gun. Under such circumstances, the unlawful search of appellant's pockets does not provide grounds for suppressing the weapon. Cf. U.S. v. Robinson (C.A.6, 1998), 149 F.3d 1185 (finding, upon application of the inevitable discovery doctrine, that the possibly unlawful recovery of drugs from defendant's pocket did not provide a basis for suppressing the gun and ammunition that inevitably would have been discovered had the lawful pat down continued.)
{ } For all of the foregoing reasons, appellant's assignment of error is found not well taken, and the judgment of the Huron County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Huron County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Peter M. Handwork, J. JUDGE
Mark L. Pietrykowski, J., William J. Skow, J. CONCUR.
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