COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68688 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION SEAN B. MARTIN : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 25, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-280675 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID C. SHELDON, Assistant 1200 Ontario Street 8th Floor - Courts Tower Cleveland, Ohio 44113 For Defendant-Appellant: TIMOTHY R. STERKEL 4425 Mayfield Road Cleveland, Ohio 44121 - 2 - O'DONNELL, J.: Sean B. Martin appeals the decision of the trial court finding him guilty of two counts of trafficking in drugs and one count of possession of criminal tools. The incidents leading to Martin's arrest and convictions began on March 21, 1992 when East Cleveland police stopped Martin for operating his automobile with an unsecured rear license plate. Officer Ernest Stanford approached the vehicle and asked Martin for his operator's license, but Martin did not produce it explaining that he did not have the license on his person. Stanford then arrested Martin for operating a motor vehicle without his operator's license on his person. Before placing Martin in the police car, Stanford searched him, felt a hard object in Martin's coat, and discovered three baggies containing 147 rocks of crack cocaine and two fifty dollar bills. Officer Stanford then placed Martin under arrest for trafficking in drugs. An inventory search of the vehicle prior to impound revealed a pager which, along with the two fifty dollar bills, formed the basis of the criminal tools indictment. The Grand Jury returned indictments against Martin on two counts of drug trafficking and one count of possession of criminal tools, and when Martin posted bond, he provided the court with his home address. The court scheduled arraignment on July 21, 1992, and sent notice to the address provided by Martin. - 3 - Martin, however, failed to appear at the scheduled arraignment, and thus, the court issued a bond forfeiture and a capias for his arrest for his failure to appear. More than two years later, on November 14, 1994, police arrested Martin on the outstanding capias, and the court subsequently conducted arraignment and scheduled the case for trial. Before trial, defense counsel filed a motion to suppress physical evidence and on the day of trial made an oral motion to dismiss the indictment alleging denial of speedy trial. The court held hearings on both motions. At the hearing on the motion to dismiss for lack of speedy trial, the state presented evidence that the Clerk of Court issued a summons to Martin to appear at arraignment at the address Martin provided when he posted bond. The Clerk later received the return receipt card indicating that summons had been received and containing a signature of Sean Martin. Martin testified that he did not attend his arraignment because he never received that notice and did not sign the return receipt, but he admitted he did reside at that address at the time the Clerk sent the summons. At the hearing on the motion to suppress, the state presented evidence that at the time of this incident, East Cleveland police procedure required police officers to arrest and secure further information when a driver did not have an operator's license on his person. - 4 - Following the hearings, the court overruled both motions, proceeded with a bench trial, and subsequently found Martin guilty on all counts. Martin now appeals and assigns two errors for our review. The first assignment of error states: MR. MARTIN'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND HIS STATUTORY SPEEDY TRIAL RIGHTS UNDER OHIO REVISED CODE SECTION 2945.71 WERE VIOLATED WHEN THE TRIAL COURT DENIED HIS MOTION TO DISMISS. Martin urges that the state denied him his right to a speedy trial because it brought him to trial more then 1050 days after his arrest, well beyond the 270 days allowed by R.C. 2945.71. The state contends it did not deny Martin's speedy trial rights because the issuance of the capias tolled the running of the speedy trial statute. The essence of the state's argument is that because Martin received notice of arraignment and failed to appear, he cannot claim denial of speedy trial rights since he caused any delay in prosecution of the case by his own neglect or improper act. The issue for our determination, then, is whether or not the state violated Martin's constitutional right to a speedy trial. In Ohio, R.C. 2945.71 defines speedy trial and requires, in pertinent part: (C) A person against whom a charge of felony is pending: *** - 5 - (2) Shall be brought to trial within two hundred seventy days after his arrest. ***. However, R.C. 2945.72 details statutory circumstances under which this time may be extended: The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: *** (D) Any period of delay occasioned by the neglect or improper act of the accused; ***. In State v. Bauer (1980), 61 Ohio St.2d 83, the Ohio Supreme Court explained the reason for extending the time when occasioned by defendant's neglect when it stated that the defendant "will not be permitted to enjoy the protection of [speedy trial] statutes, as to a time period prior to his failure to appear, when by his actions he has waived their benefits. Id. at 84. Furthermore, this court has stated: More specifically, where an accused actively absents himself from a trial, *** he is generally not entitled to the constitutional protection of the Speedy Trial Clause. State v. Haynes (1982), 8 Ohio App.3d 119, 121. In this case, Martin provided his address to the court at the time he posted bond, the Clerk's office sent a summons to that address, and the return receipt shows signature by Sean Martin. The trial court, after hearing the evidence, chose not to believe Martin's testimony that he did not receive the summons and determined that the notice was signed by the defendant. Thus, Martin had notice and failed to appear and voluntarily - 6 - absented himself from appearance at arraignment. This failure constitutes delay by the neglect or improper act of the defendant and extends the time within which an accused must be brought to trial under R.C. 2945.72. Accordingly, we conclude the trial court properly denied the motion to dismiss for lack of a speedy trial and the first assignment of error is, therefore, overruled. The second assignment of error states: THE TRIAL COURT ERRED IN DENYING MR. MARTIN'S MOTION TO SUPPRESS PHYSICAL EVIDENCE WHEN THE EVIDENCE SEIZED WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Martin believes the drug evidence should have been suppressed because the police seized the evidence illegally. He contends the search was not incident to a lawful arrest because the police did not arrest him until after the search and discovery of the evidence. The state argues that the search of Martin did not deprive him of his constitutional rights because it was incident to the lawful arrest for operating a motor vehicle without possessing an operator's license on his person, even though the search occurred before the officer advised Martin he was under arrest for that charge. - 7 - The issue presented for our review is whether or not a search conducted before advising a suspect he is under arrest may constitute a search incident to a lawful arrest. It is well settled that when a person is placed in custody by the lawful action of an officer, it is not unreasonable to search him, and that this search is valid as incident to a lawful arrest. See United States v. Giordenello (1958), 357 U.S. 480; United States v. Draper (1959), 358 U.S. 307. The United States Supreme Court has explained further that such a search is not limited to a search for weapons, and in United States v. Robinson (1973), 414 U.S. 218, 235, held: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment. In State v. Ferman (1979) 58 Ohio St. 2d 216, the Ohio Supreme Court followed Robinson stating: [Robinson] makes clear that where a person is placed under custodial arrest for a traffic violation, that person may be subjected to a full search for weapons and contraband. (Emphasis in original.) Id. at 219. With this standard in mind, however, we are cognizant of the fact that the fruits of the search should not be the basis of the - 8 - probable cause to arrest. As this court stated in State v. Farndon (1984), 22 Ohio App.3d 31 at 34: If the police conduct a warrantless search of a person and find evidence of crime during the search and then place the individual searched under arrest, this search may not be justified as being incident to the subsequent arrest if the arrest is based upon the fruits of the prior search. In this case, East Cleveland police stopped Martin for operating a vehicle with an unsecured rear license plate. Thereafter, Officer Stanford discovered Martin had no operator's license on his person. Furthermore, because evidence was presented that at the time of the incident, East Cleveland police policy required officers to arrest a driver who is stopped without an operator's license on his person, Officer Stanford had probable cause to arrest Martin before the search of his person and the seizure of drug evidence. In addition, the fact that Officer Stanford searched Martin before advising him he was under arrest is not of consequence to this matter because the United States Supreme Court explained in Rawlings v. Kentucky (1980), 448 U.S. 98, that the sequence of search and arrest is unimportant: Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa. (Citations omitted.) Id. at 111. Thus, the lawful arrest need not occur before the search in order for the exception to apply. - 9 - Therefore, we conclude the trial court did not err in denying the motion to suppress because Martin did not have an operator's license on his person and the police had probable cause to arrest him for that offense. Officer Stanford's search of Martin and seizure of the cocaine, therefore, was not unreasonable since it was incident to the lawful arrest for no operator's permit. Accordingly, this assignment of error is overruled. Judgment Affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .