Youngstown Daily Legal News

Officer had right to search truck after man reached for weapon multiple times, court rules

JESSICA SHAMBAUGH
Special to the Legal News
Published: April 17, 2014

In a recent 10th District Court of Appeals opinion, the three-judge appellate panel affirmed a man’s convictions for possession of morphine and oxycodone and theft of a prescription pad.

Gregg Bly appealed his conviction and sentence from the Franklin County Court of Common Pleas and asserted that the trial court should have granted his motion to suppress evidence against him.

“Because the trial court did not err in denying appellant’s motion to suppress, we affirm,” Judge Betsy Luper Schuster wrote for the court.

Case summary states that in December 2012, Bly was charged with possession of morphine, possession of oxycodone and one count of acquiring by theft an uncompleted pre-printed prescription blank used for writing a prescription.

Bly pleaded not guilty to all charges and filed a motion to suppress all evidence found against him during a warrantless seizure of his person and search of his vehicle.

At a suppression hearing, the state presented testimony from Columbus police officers Joseph Burkey and John Narewski.

The officers stated that they were patrolling an area near Livingston Avenue and James Road when they saw Bly’s truck backed into a parking space in a Walgreens parking lot far from the store’s entrance.

They noted that another car was parked beside the truck so that their driver’s side windows were facing each other.

The officers then saw a man lean into Bly’s truck and exchange what they believed to be folded-up cash.

They decided to investigate, pulled into the parking lot and approached Bly and the second man separately.

Burkey testified that when he approached the truck, Bly told him that he had a concealed carry permit and a weapon in his center console.

Bly offered to retrieve the weapon and Burkey asked him not to.

As Burkey asked Bly a few questions, he noticed that Bly was shaking and nervous and that there were torn up plastic baggies on the passenger floorboard.

Bly again offered to retrieve his weapon and Burkey repeated his request to leave it in the console.

After further conversation, Bly reached toward the center console and for the third time Burkey told him not to retrieve the weapon and asked him to step out of the vehicle.

When Burkey opened the center console to secure the weapon he found unlabeled pill bottles and clear baggies, both of which contained pills.

Bly was then taken into custody and subsequently charged.

The trial court found that the officers had a reasonable suspicion to approach Bly and that Bly’s repeated attempts to retrieve his weapon gave Burkey the right to remove him from the truck and check the center console for the weapon.

It therefore denied Bly’s motion to suppress and he pleaded no contest.

After his conviction and sentencing, Bly appealed to the 10th District and again argued that the search and seizure were unreasonable.

“Appellant first argues the initial investigatory stop was an unlawful seizure because the officers lacked reasonable suspicion. Here, however, the police officers properly stopped and briefly detained appellant without probably cause because the officers had reasonable suspicion, based on specific, articulable facts, that criminal activity was afoot,” Judge Schuster stated.

The judges found that Burkey had been with the Columbus Police Department for more than 10 years and had experienced hundreds of narcotics-related arrests in the past five or six years in the part of town in which he saw Bly.

They further determined that Burkey testified that he frequently saw cars park with their driver’s windows facing each other and exchange cash as part of a drug transaction.

“Taken together, these facts are specific, articulable facts justifying Officer Burkey’s belief, from the totality of the circumstances, that a narcotics transaction was occurring, and thus the initial investigatory stop was reasonable,” Judge Shuster wrote.

The appellate panel held that Burkey’s search of the center console was also justified because Bly had reached for his weapon three times, giving Burkey reason to fear for his safety.

“Based on the foregoing reasons, the trial court did not err in denying appellant’s motion to suppress.”

Judges John Connor and Amy O’Grady concurred.

The case is cited State v. Bly, 2014-Ohio-1261.

[Back]