Quoted:
Not to mention the "It's a pretty good-size gun" remark.  Gimme a break...

Quoted:
concealed in a holster.

wearing on his hip

State v. Potts
Not Reported in N.E.2d
Ohio App. 11 Dist.,1998.
Sept. 25, 1998

This is an accelerated calendar appeal from the Warren Municipal Court. Appellant, Robert A. Potts, brings this appeal from his conviction and sentence on one count of carrying a concealed weapon in violation of R.C. 2923.12.
On March 2, 1996, appellant was stopped by Ohio Highway Patrol Trooper Marvin Hill ("Trooper Hill") for speeding. After appellant pulled his vehicle to the side of the roadway, Trooper Hill approached it on the passenger side to avoid being struck by a passing motorist. Appellant was alone in his vehicle. When Trooper Hill approached appellant's vehicle, he observed what appeared to him to be the handle of a knife protruding from beside the bucket seat in which appellant was sitting. The blade of the knife appeared to be wedged between the bucket seat and the console that separated the two front seats.
As he customarily did, Trooper Hill asked appellant if there were any weapons in the vehicle. Appellant responded that there were, pulled the sheathed knife out from between his seat and the console, and handed it to Trooper Hill, who then asked appellant if there were any other weapons in the vehicle. Appellant responded, "no," but as he reached for the knife, Trooper Hill noticed a second knife in the pocket attached to the back of the passenger seat. The pocket in which the second knife was found was made of netting so Trooper Hill could clearly see that it contained a large, sheathed buck knife, which he confiscated along with the first knife. Trooper Hill asked appellant to exit the vehicle, "placed him under arrest," and escorted appellant to his cruiser. He then proceeded to search appellant's vehicle, including the glove compartment, the trunk and a locked box contained therein. He also searched the closed console compartment between the buckets seats in which he found a sheathed, "L-shaped" knife, which was also confiscated. All three knives were secured in the trunk of the cruiser.
As he had intended during the entire stop, Trooper Hill issued appellant a release form for the knifes and a summons [FN1] citing appellant for speeding and carrying a concealed weapon, and allowed appellant to leave in his vehicle. A formal complaint was filed on March 5, 1996, charging appellant with one count of carrying a concealed weapon "to wit: three (3) knives with holsters." Appellant filed a motion to suppress as evidence the three knives, claiming the placement of the first two knives did not give rise to any cognizable crime and, thus, the search which revealed the third knife was unlawful.


FN1. .These documents do not appear in the record before this court.


At the suppression hearing held on October 24, 1996, only Trooper Hill testified, giving the foregoing explanation of the events of March 2, 1996. The trial court overruled the motion. On January 13, 1997, appellant changed his initial guilty plea to one of no contest with respect to the charges of carrying a concealed weapon and speeding [FN2] as a result of the plea bargain reached with the state. Appellant was found guilty, fined $50 and sentenced to sixty days in jail. The jail term was suspended, and appellant was placed on probation for one year. The second knife, the buck knife found in the netting behind the passenger seat, was returned to appellant, but the others were ordered to be destroyed. [FN3]


FN2. .Appellant does not challenge his speeding conviction in this appeal.



FN3. .The record does not indicate whether the two knives have been destroyed pursuant to the court's order. We do note that no stay of execution of sentence has been entered in this case even though the destruction of the knives should have been suspended pending the outcome of this appeal.


*2 Appellant filed a timely notice of appeal, and raises the following assignment of error:
"The trial court erred in overruling appellant's motion to suppress evidence discovered as a result of a warrantless search initiated without consent of appellant and without probable cause of commission of a crime." [FN4]


FN4. Appellee did not file a brief in this matter.

In his sole assignment of error, appellant asserts that the trial court erred in overruling his motion to suppress all evidence relating to the charge of carrying a concealed weapon. The primary question here is [red]whether a knife may simultaneously be concealed for purposes of R.C. 2923.12, and in plain view for search and seizure purposes. For the following reasons, we answer this question in the negative.[/red]
A police officer may seize an item as being in plain view if "it was 'immediately apparent' that the item was incriminating." State v. Waddy (1992), 63 Ohio St.3d 424, 442, 588 N.E.2d 819, quoting Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564. "The 'immediately apparent' requirement is satisfied when police have probable cause to associate an object with criminal activity." State v. Halcayszak (1986), 25 Ohio St.3d 301, paragraph three of the syllabus.
Thus, the issue becomes whether the incriminating nature of the knives could have been immediately apparent at the same time that they were concealed. A close review of the Ohio cases addressing the issue of whether a weapon is concealed under R.C. 2923.12 reveals that [red]there is no support for the conclusion that a weapon may be in plain view and concealed at the same time.[/red] Ohio's cases that have held that a partially concealed weapon could give rise to liability under R.C. 2923.12, rely heavily on State v. Coker (1984), 15 Ohio App.3d 97, 98. In reaching its conclusion, the Coker court cited State v. Pettit (1969), 20 Ohio App.2d 170, 252 N.E.2d 325, for the proposition that "a weapon need not be totally hidden from observation in order to render it concealed within the meaning of the statute." Coker at 98, 472 N.E.2d 747.
[red]For the definition of concealment, the Pettit court cited Shipley v. State (Md.App.1966), 243 Md. 262, for the following definition of concealment:
"[A] weapon is concealed if it is so situated as not to be discernable by ordinary observation by those near enough to see it if it were not concealed who would come into contact with the possessor in the usual associations of life, but that absolute invisibility is not required; since ordinary observation does not extend to a search unusually careful, thorough or detailed, made because of suspicion that contraband which is not visible by ordinary observation may in actuality be present."[/red] See, also, Pettit at 173- 174.
*3 [red]Thus, the Shipley case supports the conclusion that a weapon is concealed only when it cannot be detected through ordinary observation.[/red] In Shipley, police officers stopped the appellant's vehicle. While one officer was speaking with the appellant outside of the automobile, another officer looked inside appellant's vehicle and observed a knife partially protruding from underneath the seat where the appellant had been sitting. The court reasoned that the knife would not have been visible through ordinary observation at night when the appellant was seated in the vehicle because his legs would have shielded the knife from the view of an onlooker. Shipley at 589. Thus, the weapon was not visible initially, but emerged into sight only when the occupants of the vehicle exited.
The Pettit court relied upon the Shipley test for determining whether a knife was concealed. In Pettit, appellant was arrested pursuant to a warrant, and his vehicle was searched incident to a lawful arrest. Id. at 172. When conducting the search, the officer found a knife with a six-inch blade "[o]n the left side of the front seat, in a sheath partly under the front seat[.]" Id. Thus, the knife was not found upon the officer's approach to the vehicle, but rather, was found in the search incident to a lawful arrest. Therefore, the court properly determined that the knife was not visible through ordinary observation. Again, the issue was not whether the weapon was in plain view when it was determined to be concealed. In summary, in both Shipley and Pettit, the weapon was hidden from the officer's view initially and was discovered only upon a further search or movement of the appellant.
Coker, unlike Pettit and Shipley, addressed the issue of "whether a weapon, which is in plain view for the purposes of executing a search of a motor vehicle, may be concealed as contemplated by the prohibition of R.C. 2923.12(A)." Coker at 98. In Coker, two officers effectuated a routine traffic stop, and after observing the driver leaning over with his hands below the seat, one of the officers ordered the two occupants to exit the vehicle. "When they got out of the car, [one officer] observed a sawed-off shotgun lying next to the passenger's seat. The shotgun was located between the passenger's seat and the transmission hump, with the butt of the gun protruding above the seat." Id. at 97. Thus, the officers did not make the plain view seizure until after the officers had ordered the occupants from the vehicle.
*4 The common thread of Shipley, Pettit, and Coker is that in each case the weapon was discovered only after the driver and/or passengers had exited the vehicle. These three cases did not involve an officer making a plain view seizure at the same time that the weapon was allegedly concealed. This factual distinction is amplified by the cogent analysis of Judge Edward Mahoney's concurring opinion in Coker:
"I have great difficulty in believing that an object may be concealed and in plain view at the same time. I can readily believe, however, that a concealed object can come into plain view by a change of position of a person or another object. Conversely, the positioning of a body or other object may be used to conceal an object from the view of a person who would be in a position to see it if it were not otherwise concealed. Here the butt of the shotgun came into view when the defendant exited the car." Coker at 100
In summary, Shipley, Pettit, and Coker do not stand for the proposition that a weapon may be both in plain view and concealed at the same time. The facts of those cases only support the rule that a concealed weapon may emerge into plain view for seizure purposes by the movement of a person or an object.
Applying this analysis to the case at bar, Trooper Hill testified that "[w]hen I initially walked up [to appellant's vehicle], I saw something that appeared to be sticking out that I thought was probably a knife." Thus, Trooper Hill noticed the knife beside appellant's seat immediately upon approaching appellant's vehicle. When appellant handed the knife to Trooper Hill, he noticed the presence of the second knife behind the passenger seat "in plain view." Thus, neither the knife found beside appellant nor the knife discovered behind the passenger seat came into view upon the movement of appellant or any person or object in the vehicle. Therefore, the knives could not have been concealed when Trooper Hill approached the vehicle because the knives were in plain view.
In order to arrest appellant, Trooper Hill must have had probable cause that the weapons were concealed at some point. Plainly, from the fact that he observed two knives from simply standing beside appellant's automobile, he could not have had probable cause to believe that the knives were concealed. Because the officer here had no probable cause to believe that appellant had committed the offense of carrying a concealed weapon, he did not have the authority to arrest appellant, and then to search incident to a lawful arrest. Thus, the subsequent search of the vehicle that led to the discovery of the third knife was also improper, and the evidence of the third knife must also be suppressed. Appellant's assignment of error is well-taken.
Appellant's assignment of error is with merit. The judgment of the Warren Municipal court is reversed, and judgment is entered for appellant on the charge of carrying a concealed weapon.

Quoted:
It is the consensus ([red]even though they won't openly admit it[/red]) of the majority of law enforcement that a civilian with a gun, permit or not, is a threat to officer and public safety.

Quoted:
What kind of holster was he using that it completely encased the handgun?  

Quoted:
OK this DA was packing a gun in a holster for the world to see down mainstreet and he had no Cancealed carry permit in the first place..

Sounds like he got what he deserved for being a total fricken idiot !!!

Why stick up for this moron ? He gives  normal gunowners a black eye and reinforces the sheeples impression that all gunowners are nut cases..

[rolleyes]

Quoted:
Why stick up for this moron ? He gives  normal gunowners a black eye and reinforces the sheeples impression that all gunowners are nut cases..

Quoted:
The guy was an ass for testing the limits.  He is getting what he deserves.