United States of America v. Craig Montgomery

*The Honorab le Thomas B . Russell, United States District Judge from
the Western District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0243P (6th Cir.)
File Name: 04a0243p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRAIG MONTGOMERY,
Defendant-Appellant.
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No. 02-4234
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 02-00056—S. Arthur Spiegel, District Judge.
Argued: April 26, 2004
Decided and Filed: July 27, 2004
Before: BOGGS, Chief Judge; KENNEDY, Circuit Judge;
RUSSELL, District Judge.*
_________________
COUNSEL
ARGUED: Richard W. Smith-Monahan, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for
2 United States v. Montgomery No. 02-4234
Appellant. Timothy D. Oakley, UNITED STATES
ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF:
Richard W. Smith-Monahan, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.
Timothy D. Oakley, UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. Defendant Craig Montgomery
(“defendant”) appeals the district court’s denial of his motion
to suppress the crack cocaine that law enforcement officers
seized during a search of his person, following a traffic stop
of the vehicle in which he was a passenger. Preserving his
right to appeal the validity of that search, defendant pleaded
guilty to one count of possession with the intent to distribute
over five grams of crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii). For the following reasons, we
AFFIRM the district court’s denial of defendant’s suppression
motion.
I. Background
At approximately 8:00 p.m. on April 16, 2002, Trooper
Brian Workman (“Workman”), of the Ohio State Highway
Patrol, lawfully stopped a vehicle in Scioto County, Ohio, for
a speeding violation. Workman learned that the driver of the
vehicle, Meyah McCrory (“McCrory”), had been operating
the vehicle on a suspended license. According to Workman,
the vehicle’s passengers appeared very nervous. Trooper
Terry Mikesh (“Mikesh”), also of the Ohio State Highway
Patrol, arrived at the scene to offer assistance. After
requesting driver McCrory to exit the vehicle, Workman
advised her that she had been driving on a suspended license,
and placed her in the back of his patrol car. While checking
the other occupants’ identifications, Mikesh, with the use of

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No. 02-4234 United States v. Montgomery 3
a flashlight, observed a stem, approximately one-inch long,
on the driver’s floorboard near the center console. Based
upon her training in and experience with the detection of
narcotics, Mikesh was confident from her visual inspection
that it was marijuana. Rand Simpson Jr. (“Simpson”), the
right front passenger, reached for the stem, and Mikesh yelled
at him to put it down. Mikesh showed Workman the
marijuana stem. As Workman testified, he was able to
observe the stem, which was large and still had vegetation
attached to it, from outside of the vehicle, and he believed it
to be marijuana based upon his narcotics-detection training.
Mikesh advised the occupants that the troopers were going
to search the vehicle based upon their observation of
marijuana in the vehicle, and that the occupants were in
“investigative custody” pending the completion of the search.
Mikesh also advised them of their Miranda rights. Workman
testified that, at that point, no one was under arrest. Rather,
according to Workman, they were in “investigative custody”
and received Miranda warnings based upon the troopers’
discovery of marijuana in the vehicle. Workman observed
Jamaal Richardson (“Richardson”), the left rear passenger,
shove a blue object underneath the back seat’s armrest.
The troopers ordered the occupants, including defendant,
the right rear passenger, out of the vehicle. Workman and
Mikesh performed “protective pat-downs for weapons,” and,
with each occupant’s consent, examined the contents of his
pockets. The troopers then placed the occupants in another
patrol car, which had subsequently arrived at the scene, to
prevent them from fleeing the scene or from standing on the
dangerous roadside. Upon searching the vehicle’s interior,
the troopers recovered the large marijuana stem on the
driver’s side, marijuana seeds, and a blue digital scale, which
Richardson had hidden underneath the backseat armrest and
which had residue in the form of green leafy material and
white powder on it. Workman identified the white and green
residue on the scale as cocaine and marijuana, respectively.
4 United States v. Montgomery No. 02-4234
1In this suppression motion, defendant also challenged the
adm issibility of any incriminating statem ents that he made to the troopers
following their seizure of the crack cocaine on the ground that such
admissions violated his Fifth Amendme nt Miranda rights; the district
court denied this challenge. By failing to present any argument on it in
his brief, de fendant has ab andoned this Fifth Amendment issue on appeal.
See Som mer v. Da vis, 317 F.3d 686, 691 (6th Cir. 2003) (holding that
plaintiffs abandoned an issue on appea l by not presenting any argument
on it in their briefs).
After searching the vehicle, the troopers asked defendant to
exit the patrol car. Workman, with the intent of checking
defendant for any narcotics or paraphernalia, again patted
defendant down and then ordered him to remove his shoes.
A bag containing crack cocaine lay in one of defendant’s
shoes. According to Workman, defendant was then placed
under custodial arrest. Mikesh advised defendant of his
Miranda rights for the second time. Subsequent field and
laboratory tests revealed that the large stem was, in fact,
marijuana.
Defendant filed a motion to suppress the crack cocaine
found in his shoe.1 The district court held that the troopers’
search of defendant’s shoes did not violate the Fourth
Amendment because it was a search incident to a lawful
arrest. In particular, the court found that the troopers had
arrested defendant at the time that they placed him in the back
of the patrol car, and that they had probable cause to arrest
defendant based upon: 1) the marijuana in plain view;
2) passenger Simpson’s attempt to conceal the marijuana
from the troopers; 3) passenger Richardson’s concealment of
something under the armrest; and 4) the apparent nervousness
of all of the occupants.
II. Analysis
We review the district court’s legal conclusions in a
suppression hearing de novo, and its factual findings for clear
error. United States v. Smith, 263 F.3d 571, 581-82 (6th Cir.

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No. 02-4234 United States v. Montgomery 5
2001); see United States v. Forest, 355 F.3d 942, 952 (6th
Cir. 2004) (holding that whether the facts establish probable
cause to justify an arrest is a question of law that we review
de novo); United States v. Avery, 137 F.3d 343, 348 (6th Cir.
1997) (holding that whether the facts establish an
unconstitutional seizure is a question of law that we review de
novo). When considering the denial of a suppression motion,
we must view the evidence in the light most favorable to the
government. United States v. Wellman, Jr., 185 F.3d 651,
654-55 (6th Cir. 1999). “We may affirm a decision of the
district court if correct for any reason, including one not
considered below.” United States Postal Serv. v. Nat’l Ass’n
of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir.
2003).
Defendant does not contest that Workman had probable
cause to stop the vehicle in which defendant was a passenger
for a speeding violation. Defendant also does not dispute that
the troopers had probable cause to search the vehicle. In
addition, the troopers were clearly justified in ordering
defendant out of the vehicle pursuant to either the routine
traffic stop or the lawful vehicle search. See Maryland v.
Wilson, 519 U.S. 408, 413-14 (1997) (extending the rule in
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), that “a
police officer may as a matter of course order the driver of a
lawfully stopped car to exit his vehicle” to any passengers in
such a vehicle). Based upon the nervousness of all of the
occupants, the marijuana stem in plain view, Simpson’s and
Richardson’s attempts to conceal the marijuana stem and an
unknown object, respectively, it was reasonable for the
troopers to believe that defendant may have been armed and
dangerous so as to justify patting him down for weapons after
he exited the vehicle. See Terry v. Ohio, 392 U.S. 1, 27
(1968). Defendant, however, asserts that the troopers lacked
the requisite justification to conduct the subsequent,
6 United States v. Montgomery No. 02-4234
2There wa s no reasonable concern for officer safety so as to justify,
under the Terry doctrine, this search of defendant’s person; indeed,
W orkman testified that he conducted the search solely to check defendant
for narco tics or drug paraphernalia. See Yb arra v. Illinois, 444 U.S. 85,
93-94 (1979) (cautioning that the Terry doctrine, which created a narrow
exception to the no rmal d ictates of the Fourth Amendment, does not
perm it a “generalized cursory search for weapons” or “any search
whatever for anything but weapons”). Yet, this warrantless evidentiary
search may, nevertheless, be valid if it falls within an exception to the
warrant requirement. See United States v. H add ix, 239 F.3d 766, 767 n.2
(6th Cir. 2001) (summarizing the leading exceptions to the warrant
requirement as, among others, “investigatory detentions, warrantless
[public] arrests, searches incident to a valid arrest, seizure of items in
plain view, exigent circumstances, consent searches, vehicle searches”)
(internal quotation marks omitted).
warrantless search of defendant’s shoes, from which the crack
cocaine was seized.2
Under the “search-incident-to-a-lawful-arrest” exception to
the warrant requirement, a law enforcement officer may
conduct a full search of an arrestee’s person incident to a
lawful custodial arrest. United States v. Robinson, 414 U.S.
218, 234-35 (1973) (explaining that the reasoning behind this
exception is the “need to disarm the suspect in order to take
him into custody [and] . . . the need to preserve evidence on
his person for later use at trial”). Moreover, as the Supreme
Court held in Rawlings v. Kentucky, 448 U.S. 98, 110-11 n.6
(1980), the search-incident-to-a-lawful-arrest rule also permits
an officer to conduct a full search of an arrestee’s person
before he is placed under lawful custodial arrest as long as
“the formal arrest follow[s] quickly on the heels of the
challenged search of . . . [his person]” and the fruits of that
search are not necessary to sustain probable cause to arrest
him. C.f. Knowles v. Iowa, 525 U.S. 113, 116-19 (1998)
(holding that the search-incident-to-a-lawful-arrest rule does
not apply to an officer’s search of the defendant’s vehicle
where the officer, while subsequently arresting the defendant
for drug-law violations based upon that search, never actually
arrested the defendant for the speeding violation, which gave

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No. 02-4234 United States v. Montgomery 7
the officer the probable cause to arrest the defendant before
the search, but, rather, only issued a citation, and reasoning
that the rule’s underlying twin rationales of officer safety and
evidence preservation were only minimally present and not
present at all, respectively, in the context of a traffic citation);
Smith v. Ohio, 494 U.S. 541 (1990) (holding that the search-
incident-to-a-lawful-arrest rule does not apply to a warrantless
search that provides the probable cause for the subsequent
arrest because one cannot justify the arrest by the search and
then simultaneously justify the search by the arrest).
The district court found that, at the time of the search of
defendant’s shoes, the troopers had seized defendant within
the meaning of the Fourth Amendment. A reasonable person
would not have felt free to leave the scene based upon the
following circumstances: 1) three patrol cars were at the
scene; 2) the troopers observed marijuana in plain view in the
vehicle, in which defendant was a passenger; 3) Mikesh
yelled at passenger Simpson to put the marijuana stem down;
4) defendant had been ordered out of the vehicle, frisked, and
placed in the back of a patrol car; 5) Mikesh read defendant
his Miranda warnings; and 6) the troopers searched the
vehicle. See United States v. Butler, 223 F.3d 368, 374 (6th
Cir. 2000) (“A ‘seizure’ occurs . . . when the police detain an
individual under circumstances where a reasonable person
would feel that he or she is not at liberty to leave”); Kaupp v.
Texas, 538 U.S. 626, 630 (2003) (illustrating circumstances
indicating a seizure as follows: “‘the threatening presence of
several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the
officer’s request might be compelled’”) (citing United States
v. Mendenhall, 446 U.S. 544 (1980)). However, it is unclear
whether this “seizure” was a full custodial arrest, rather than
8 United States v. Montgomery No. 02-4234
3Although neither the government nor defendant seem to challenge
the district co urt’s determination that the troopers had arrested defendant
at the time that they placed him in the back of the patrol car, we have
some reservations about the accuracy of this determination. It is uncertain
whether the troopers’ ordering defendant out of the vehicle, frisking him,
and placing him in the back of a patrol car are circumstances sufficient in
themselves to escalate the detention into a custodial arrest given that the
legality of the troopers’ action here does not seem to hinge upon any such
arrest. Rather, as discussed above, even without arresting defendant, the
troopers had sufficient justificatio n to order defendant out of the vehicle
and to frisk him. B ased upon the lawful vehicle search, the troope rs likely
had adequate justification to place defendant in the back of the patrol car
both for his and the troopers’ safety pending the completion of that
search. There is no evidence that the troopers, at the time they placed
defendant in the back of the patrol car, had drawn their weapons,
handcuffed defendant, or used physical force to place him in the patrol
car. Mo reover, while M ikesh advised defendant of his rights under the
Miranda doctrine, whose application requires that one be subject to a
formal arrest or its de facto equivalent, she simply informed defendant
that he was in “investigative custody” pending the completion of the
vehicle search; she never told defendant that he was under arrest at that
time. See Stan sbury v. Californ ia, 511 U.S. 318, 322 (1994). To the
extent that he may have conveyed his subjective intent to defendant,
W orkm an testified that defendant was no t under arrest at that point. See
United States v. Rose, 889 F.2d 14 90, 1 493 (6th Cir. 1989) (holding that
officers’ subjective intent is relevant to a Fo urth Amendme nt analysis
only to the extent that they have conve yed that intent to the confronted
individual). In any event, we need not decide this issue because we find
that, whether the troopers arrested defendant upon placing him in the
patrol car or only after they conducted the search of his shoes, the search-
incident-to-a-lawful-arrest rule app lies so as to justify that search.
4As Professor Joshua Dressler aptly observed, the Supreme Court has
yet to apply the search-incident-to-a-lawful-arrest rule to any context
other than a full custodial arrest. Dressler argues that the twin rationales
underlying this exception–evidence preservation and officer safety–do not
app ly or only marginally apply in the context of a non-custodial arrest or
temporary detention. Understanding Criminal Procedure § 13.02 (2d ed.
1997) (reasoning that the context of a custodial arrest poses a far greater
danger to the officer than one of temporary detention as, in the latter
a mere investigative detention under the progeny of Terry,3
for purposes of the search-incident-to-a-lawful-arrest
exception.4 See United States v. Avery, 137 F.3d 343, 352

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No. 02-4234 United States v. Montgomery 9
situation, the suspect has less incentive to use a weapon or to destroy
evidence, and the officer need not transport the suspect to the police
station).
(6th Cir. 1997) (noting that a “seizure” for purposes of the
Fourth Amendment comprises either a Terry investigative
detention requiring “reasonable, articulable suspicion of
criminal activity” or an arrest requiring probable cause);
compare Kaupp, 538 U.S. at 630 (holding that law
enforcement’s involuntary transportation of a suspect to a
police station for questioning constitutes a de facto arrest
requiring probable cause), with Houston v. Clark County
Sheriff Deputy John Does 1-5, 174 F.3d 809, 814-15 (6th Cir.
1999) (holding that, where police officers reasonably believed
that a vehicle’s occupants had just been involved in a
shooting, the officers’ ordering the suspects out of the vehicle,
drawing their weapons on them, frisking and handcuffing
them, and detaining them in the back of patrol cars did not
exceed the bounds of a Terry investigative detention) and
United States v. Bradshaw, 102 F.3d 204, 211-12 (6th Cir.
1996) (holding that “detention in a police car does not
automatically constitute an arrest,” but recognizing that it
“may rise to the level of an arrest in some circumstances”).
In any event, even if the troopers had not placed defendant
in full custodial arrest before the search of his person, it is
clear that they did so immediately after that search–after they
discovered crack cocaine in his shoe. Mikesh testified that,
after the discovery of that crack cocaine, she informed
defendant that he was under arrest and, once again, advised
him of his Miranda rights. Workman also testified that
defendant was placed under arrest at that time. Thus,
regardless of whether the troopers placed defendant in full
custodial arrest before or immediately after the evidentiary
search of his person, the search-incident-to-a-lawful-arrest
rule would validate that search as long as the troopers,
independent of the crack cocaine seized during that search,
had probable cause to arrest defendant at the time of that
10 United States v. Montgomery No. 02-4234
search. Chiefly relying upon United States v. Di Re, 332 U.S.
581 (1948), defendant argues that, while the troopers had
probable cause to arrest the vehicle’s other occupants, they
lacked probable cause to arrest defendant because his conduct
did not provide them with sufficient individualized suspicion
regarding his involvement in any illegal activity. Rather,
according to defendant, the facts and circumstances available
to the troopers establish, at most, that defendant, by virtue of
being a passenger in the vehicle, was in proximity to the other
occupants’ drug-related activity.
In United States v. Di Re, 332 U.S. 581, 583, 592-94
(1948), the Supreme Court held that, under state law, officers
lacked probable cause to arrest the defendant, who was
ultimately convicted of knowingly possessing counterfeit
gasoline ration coupons. In Di Re, law enforcement officers
approached a vehicle that contained Buttitta (the driver of the
vehicle); Reed (an informer who previously had advised the
officers that he was to buy counterfeit gasoline ration coupons
from Buttitta); and the defendant (who was sitting next to
Buttitta). Id. at 583. When the officers, upon approaching the
vehicle, observed that Reed was holding two of these coupons
– which later proved to be counterfeit – and asked Reed who
had given him the coupons, Reed inculpated only Buttitta. Id.
The officers placed the defendant, along with Buttitta and
Reed, under custodial arrest. Id. During a subsequent search
of the defendant’s person, officers recovered over one
hundred counterfeit gasoline ration coupons from his shirt and
underwear. Id.
The Court held that the officers had no probable cause to
arrest the defendant for committing, in the officers’ presence,
the misdemeanor of knowing possession of counterfeit
coupons. Id. at 592. The Court reasoned that only Reed was
visibly in possession of the coupons, and that the officers had
no evidence demonstrating the defendant’s possession of any
coupons, “unless his presence in the car warranted that
inference.” Id. (rejecting, likewise, the contention that the
officers had probable cause to arrest the defendant for a

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No. 02-4234 United States v. Montgomery 11
felony entailing both possession of the coupons and
knowledge of their counterfeit nature). The Court then held
that the defendant’s presence in the car was insufficient to
imply his participation in the Buttitta-Reed sale and, thus,
insufficient to sustain probable cause for any felony
conspiracy charge. Id. at 593. The Court reasoned that there
was no evidence indicating that the defendant was in the
vehicle when Buttitta had given the coupons to Reed. Id.
The Court further reasoned:
[The inference] that one who accompanies a criminal to
a crime rendezvous cannot be assumed to be a bystander,
forceful enough in some circumstances, is farfetched
when the meeting is not secretive or in a suspicious hide-
out but in broad daylight, in plain sight of passersby, in
a public street of a large city, and where the alleged
substantive crime is one which does not necessarily
involve any act visibly criminal.
Id. (internal quotation marks omitted, and emphasis added).
As the Court noted, even if the defendant had witnessed the
transfer of the coupons, the counterfeit nature of those
coupons would not have been readily apparent to him. Id.
The Court underscored that, where the government informer
singles out as the guilty party only an individual other than
the defendant, any inference or suspicion arising from the
defendant’s presence at the crime scene must disappear. Id.
at 594.
However, in Maryland v. Pringle, – U.S. –, 124 S.Ct. 785,
798 (2003), on facts similar to those present here, the
Supreme Court held that law enforcement officers had
probable cause to arrest the defendant. In Pringle, police
officers, based upon a speeding violation, had pulled over a
vehicle, in which there were three occupants, one of whom
was the defendant, the front-seat passenger. Id. When the
driver opened up the glove compartment to retrieve the
vehicle’s registration, the officers observed a large roll of
cash. Id. Upon a consent search of the vehicle, the officers
12 United States v. Montgomery No. 02-4234
recovered $763 from the glove compartment and five plastic
bags containing cocaine from behind the back-seat armrest.
Id. The officers placed all three occupants under arrest when,
upon questioning, none of them offered any information
regarding the ownership of the drugs or the money. Id.
(noting that the other two occupants were eventually released
when the defendant, during interrogation, subsequently
admitted ownership of the contraband and stated that they
knew nothing about it). The defendant was convicted of
possession and possession with intent to distribute cocaine.
Id. at 799.
The Supreme Court noted that, although the officers had
probable cause to believe that a felony had been committed
upon recovering the cocaine from the vehicle, the question is
whether they had probable cause to believe that the defendant
committed that crime. Id. (looking to state law to determine
the substantive crime as well as the law enforcement officers’
authority to arrest). The Court first explained the probable-
cause standard as follows:
[It is a] practical, nontechnical conception that deals with
the factual and practical considerations of everyday life
on which reasonable and prudent men, not legal
technicians, act. Probable cause is a fluid
concept–turning on the assessment of probabilities in
particular factual contexts–not readily, or even usefully,
reduced to a neat set of legal rules. The probable-cause
standard is incapable of precise definition or
quantification into percentages because it deals with
probabilities and depends upon the totality of the
circumstances . . . . [Its substance] is a reasonable ground
for belief of guilt, [which] . . . must be particularized
with respect to the person to be searched or seized.
Id. at 799-800 (internal quotation marks and citations
omitted) (noting that the test is one of objective
reasonableness based upon all of the facts leading up to the
search or seizure in question). The Court then found that the

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No. 02-4234 United States v. Montgomery 13
officers had probable cause to believe that the defendant had
committed the crime of possession of a controlled substance.
Id. at 802. The Court reasoned that the defendant was one of
three men riding in the vehicle at 3:00 a.m.; there was a $763
roll of cash in the glove compartment directly in front of the
defendant; there was cocaine behind the back-seat armrest
that was accessible to all three men; and all three men failed
to offer any information concerning the ownership of the
cocaine or money. Id. at 800. The Court affirmed that “a car
passenger . . . will often be engaged in a common enterprise
with the driver, and have the same interest in concealing the
fruits or the evidence of their wrongdoing.” Id. at 801
(factually distinguishing Ybarra v. Illinois,444 U.S. 85, 91
(1979), and citing Wyoming v. Houghton, 526 U.S. 295, 304-
05 (1999)) (internal quotation marks omitted). The Court
held that “it was reasonable for the officer to infer a common
enterprise among the three men [because] [t]he quantity of the
drugs and cash in the car indicated a likelihood of drug
dealing, an enterprise [into] which a dealer would be unlikely
to admit an innocent person with the potential to furnish
evidence against him.” Id. The Court distinguished Di Re on
the ground that, unlike in that case, there was no singling out
of an individual other than the defendant as the guilty
individual as none of the three men provided any ownership
information concerning the contraband. Id. Thus, the Court
found that it was “an entirely reasonable inference from the[]
facts that any or all three of the occupants had knowledge of,
and exercised dominion and control over, the cocaine,” and,
thus, that “a reasonable officer could conclude that there was
probable cause to believe that . . . [the defendant] committed
the crime of possession of cocaine, either solely or jointly.”
Id. at 800-01 (emphasis added).
As Pringle teaches, the facts and circumstances within the
troopers’ knowledge here afforded an adequate basis from
which reasonably to infer that defendant was engaged in a
common narcotics-related enterprise with the other occupants
of the vehicle. See Michigan v. De Fillippo, 443 U.S. 31, 37
(1979) (holding that probable cause exists when the “facts and
14 United States v. Montgomery No. 02-4234
5For examp le, the troopers had probable cause to believe that
defendant knowingly and constructively possessed, whether jointly or
singly, drug paraphernalia– the digital scale– , in violation of O hio Revised
Code § 2925.14, a fourth degree misdemea nor. See R.C. § 2925.01(K)
(providing that “po ssession means having control over a thing or
substance, but may not be inferred solely from mere access to the thing or
circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person , or one of reasonable
caution, in believing . . . that the suspect has committed, is
committing, or is about to commit an offense”). The large
marijuana stem, which was approximately one-inch long and
still had vegetation attached to it, was in plain view on the
driver’s floorboard near the center console. Thus, defendant
had both visual and physical access to the marijuana stem.
Defendant had been sitting directly next to passenger
Richardson when he concealed from the troopers the digital
scale, which was visibly covered in drug residue. Therefore,
defendant had ready physical access to the drug scale.
Moreover, based upon Richardson’s perceived need to
conceal it in the first instance, one could reasonably conclude
that the drug scale had been in plain view and, thus, that
defendant had visible access to it as well. Simpson’s and
Richardson’s attempts to conceal the marijuana stem and the
scale from the troopers, respectively, demonstrated a shared
interest in concealing the fruits of their wrong-doing. In
addition, the drugs along with the digital scale, covered in
drug residue and commonly used in the distribution of drugs,
indicated a drug-dealing enterprise. As the Supreme Court
observed, guilty parties would not likely admit an innocent
person into such a criminal enterprise for fear of that person
furnishing incriminating evidence against them. Id. at 801.
Consequently, it would have been unreasonable to believe
that all of the occupants except for defendant were engaged in
a common drug-related enterprise. Unlike Di Re, there was
no “singling out” or incrimination of the other three
occupants to the exclusion of defendant. Thus, the troopers
had probable cause to believe that defendant was violating
various state drug laws–whether singly or jointly.5 In sum,

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No. 02-4234 United States v. Montgomery 15
substance through ownership or occupation of the premises upon which
the thing or substance is found” ); State v. Kobi, 701 N.E.2d 420, 430
(Ohio Ct. App. 199 7) (ho lding that “possession” under O.R.C. § 2925.01
may be actual or constructive; defining constructive possession as an
ability to exercise dominion or control over the items; and holding that
“readily usable drugs found in very close proximity to a defendant may
constitute circum stantial evidence” of constructive possession of such
drugs); Ohio v. Hilton, No. 21624, 2004 WL 573 838 , at *4 (O hio Ct.
App. March 24, 2004) (holding that possession may be joint, and that
constructive possession may entail knowledge of the presence of the
object). Moreo ver, since the digital scale appeared to contain cocaine
residue, the troopers had probable cause to believe that defendant had
know ingly and constructively possessed, whether jointly or singly,
cocaine in violation of Ohio Revised Code § 2925.11(C)(4)(a), a crime
which is, at a minim um, a fifth degree felony. See State v. Teamer, 696
N.E.2d 1049, 1051 (Ohio 1998) (affirming that O.R.C. § 2925.11
punishes the possession of any amount of a controlled substance without
quantifying that amount, and, thus, affirming a conviction for knowing
possession of cocaine based upon a m etal crack pipe containing cocaine
residue, which was incapable of being weighed). Under Ohio law, the
troopers had authority to arrest defendant for either or both of these
crimes. See Ohio Revised Code § 5503.02 (A) (providing that “any state
highway patrol troop er may arrest, without a warrant, any person, who is
the driver of or a passenger in any vehicle operated or standing o n a state
highwa y, whom the . . . trooper has reaso nable cause to believe is guilty
of a felony, under the same circumstances and with the same power that
any peace officer may make such an arrest); Ohio Revised Code
§ 5503.02 (D)(1) (providing that “[s]tate highway patrol troopers have the
same right and power of search and seizure as other p eace officers”); State
v. Humm el, 796 N.E.2d 558, 561 (Ohio Ct. App. 200 3) (noting the
general rule that an officer may not make a warrantless arrest for a
misdemeanor unless the offense was committed in the officer’s presence).
under the search-incident-to-a-lawful-arrest rule, the troopers’
warrantless evidentiary search of defendant’s person passes
muster under the Fourth Amendment because the troopers had
probable cause to arrest defendant independent of the search
and because defendant’s lawful custodial arrest either
preceded the search or quickly followed it. See Rawlings, 448
U.S. at 110-11 n.6.
For the preceding reasons, we AFFIRM the district court’s
denial of defendant’s suppression motion.

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