322 N.E.2d 311 | Ohio Ct. App. | 1974
Defendant, the appellant herein, was arrested for speeding in the city of Perrysburg, at 3 A. M. and, *49 having been previously arrested for speeding on a prior occasion within one year, was placed in custody upon his failure to post a $100 appearance bond.
His automobile, the trunk of which was partially open and secured only by a string, was driven by a police officer to a private garage, at about 4 A. M., impounded and inventoried as provided by standard police procedure, including the use of an inventory form
Contraband, as indicated by the inventory, was seized and later introduced in evidence, over objection, at the trial of the defendant on the charge of unlawful possession of an hallucinogen. The defendant was found guilty and sentenced. An appeal was duly taken.
Two assignments of error were made:
"1. The trial court erred in overruling the defendant's motion to suppress the evidence taken from the automobile.
"2. By overruling the motion to suppress the evidence, the trial court denied the defendant his right to equal protection of the laws in violation of Article
The second assignment of error is found not well taken for the reason that the defendant failed to indicate that he was indigent. His argument, that he was denied equal protection of the laws when his automobile was impounded and subjected to a search because he could not post a bail bond, whereas the automobiles of other traffic offenders who could post a bail bond would be neither impounded nor searched, is not persuasive. The $100 bond, established by the court, was reasonable in amount and was applicable to all persons charged with a second offense of speeding within one year. The defendant was released on bond about twelve hours after his arrest.
The first assignment of error squarely presents the issue of whether the "inventory" of an impounded vehicle is an unreasonable search and seizure.1 *50
At the trial, the prosecution specifically stated that no claim of probable cause to search was being made; rather, no "search" was made, only an inventory. Furthermore, it is contended that even if such an inventory is considered to be a search, it is not an unreasonable search and any contraband taken was not an unreasonable seizure.
Many courts have sustained the position of the prosecution. Among the reasons usually advanced are that the search is benign in that it protects the owner, the bailee. the police officer and the public. See cases cited in United States v.Lawson (C. A. 8, 1973),
On the other hand, many courts have decided that a warrantless inventory search is an unreasonable search and seizure, violative of
In a recent case, the Supreme Court of the United States upheld a warrantless search of an automobile in a factual situation somewhat similar to the typical "inventory search" of an impounded vehicle. Cady v. Dombroski (1973),
Bloodied items found during the search were admitted in evidence at the later murder trial of the officer. (The report of the case does not indicate whether the revolver was found.) Cf. Harris v. United States (1968),
For warantless searches of the person which were upheld by the Supreme Court of the United States, see United States v.Robinson (1973),
The Supreme Court of the United States has not ruled directly on the issue presented in the case sub judice — see Harris v.United States,
"* * * we find it unnecessary to pass on the state's contention that the search was justified for the purpose of inventorying the contents of the vehicle for safekeeping."
We call attention to the thoughtful discussions of "Benign Purpose — Inventory Searches" in 87 Harv. L. R. 835, 848 (1974), and the article "The Inventory, Search of an Impounded Vehicle," 48 Chi.-Kent L. R. 48 (1971). See, also, annotation 48 A. L. R. 3d 537 et seq., Lawfulness of "Inventory Search" of Motor Vehicle Impounded by Police.
For an excellent discussion of the same problems arising from warrantless inventory searches, see United States v. Lawson (C. A. 8, 1973),
In Lawson, the district court granted defendant's motion to suppress (S. D. 1973),
We quote extensively from United States v. Lawson, supra at 469:
"* * * The Government specifically disavows any contention that the search was incident to a lawful arrest, and it is equally clear from the record that there existed no probable cause to support a search of the locked trunk. Rather, the Government argues that the search and seizure should be upheld because, `(t)he discovery of the firearm was made while the Police Officers were following a legitimate, reasonable and necessary police function.' The Government argues that when the inventory is carried out *53 pursuant to a standard uniform procedure, it is reasonable; thus the evidence seized should be admissible. This position finds support in the language of some of the cases that have considered the problem of an inventory search.2 However, the contrary position, that an inventory search is unreasonable, has been taken by other courts.3
"The problem of automobile searches and their relationship to the warrant requirements of the
" `While these general principles are easily stated, the decisions of this Court, dealing with the constitutionality of warrantless searches, especially when those searches are of vehicles, suggest that this branch of the law is something less than a seamless web.'
"The Supreme Court has not decided whether an inventory search, without a warrant or justified by a recognized exception to the warrant requirement, would be considered reasonable under the
At page 475, the court stated:
"The reasoning of the cases upholding inventory searches has been, except where not calling the procedure a search, that the police procedure is a reasonable one to protect the valuable property of an accused while in custody and to protect the police departments from groundless claims for `lost' property.4 The soundness of this conclusion has been questioned.5
"(3, 4) Moreover, such a conclusion does not seem adequate to justify the substantial invasion of
" `But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to
"We think this is a persuasive refutation of the Government's argument that because it is a `reasonable' police procedure it should be upheld under the
" `(L)awful custody of an automobile does not of itself dispose with constitutional requirements of searches thereafter made of it,' * * * the reason for and the nature of the custody may constitutionally justify the search.
"Cooper v. California, supra, at 61 of
"(5) It is unnecessary for us to determine all the reasons for, and natures of police custody that might justify a search; here the only justification for the search is bare police custody of the vehicle. While police custody may justify *56 reasonable measures to protect the vehicle itself (i. e., rolling up the windows and locking the doors), or property within plain view in the automobile, such reasonable protective measures do not extend to breaking into a locked trunk. We find ourselves in agreement with the position taken by the California Supreme Court in addressing the contention that the inventory procedures are necessary and reasonable:
" `This contention is rebutted by recognition of the vehicle owner's countervailing interest in maintaining the privacy of his personal effects and preventing anyone, including the police, from searching suitcases, and other closed containers and areas in his automobile at the time the police lawfully remove it to storage. In weighing the necessity of the inventory search as protection of the owner's property against the owner's rights under the
"Mozzetti v. Superior Court,
"It is not as obvious to us, as it appears to be to some courts, why the inventory procedure offers the police any more protection against false claims than would a standard policy of locking the car and returning the keys to the owner; or of allowing the owner to make arrangements himself for the removal and storage of his vehicle."
Further, at page 476, it was said:
"Several approaches to the inventory search problem have been suggested.6 *57
"Some of the possible approaches, as already noted in this opinion, do not properly focus on the considerations important, in this area. One possible approach would be to declare all inventory searches reasonable. This would not comport with our view of the
"Another approach, which we consider but do not adopt, would be to declare all inventory searches unreasonable. Just as we do not view all inventory searches as reasonable, to enunciate a rule holding them all unreasonable would often ignore legitimate reasons that could exist in particular cases to uphold an inventory search.
"(7) We think the proper approach in this area is to assess the reasonableness of the police conduct in light of all the circumstances of the case, without giving effect to the presence or absence of a police regulation. This approach does not have the surety of a rule declaring all inventory searches to be reasonable or unreasonable, and must to some extent leave law enforcement officials with some uncertainty as to what will be considered reasonable or unreasonable.
"This, however, appears to be a fact of life when dealing with
The defendant herein was somewhat belligerent and attempted to give the officers a "hard time" at the time of the arrest; moreover, he told them on several occasions that he was going to hold them responsible for the property in his automobile. Nevertheless, under all the facts of the case, weighing the interests of the defendant as to unreasonable searches and seizures against the interests of the police department in protecting themselves, the bailee, the owner of the property, and the general public, we find the balance in the favor of the defendant. We do not state that the officers had no duty to protect the car and its contents under these circumstances.
The officers could have taken the automobile to a garage for safe keeping, particularly if they had conferred with the defendant as to whether or not they should have left it on the street or taken it to a garage where greater protection could have been given. If the officer, in transporting the automobile to the garage for safe keeping under such circumstances had observed the marijuana cigarette in plain view on the dashboard of the automobile, or even if he had noted the bag or article of contraband protruding from under the front seat of the automobile on his trip to the garage, we would conclude that the items so seized *59 could have been properly admitted into evidence.
Police custody of an automobile and the duty of the police to safeguard the owner's property while it is in the custody of the police justify reasonable measures to protect the vehicle and the property within the vehicle, but such does not give the police the right to make a detailed inventory search. The examination of the automobile under bright lights, the looking into the glove compartment, under the front seat, into the trunk, even though the lid thereto was secured only by a string and was partially opened, and the moving and examination into the carton situated in the trunk were not justified under any of the recognized exceptions to the requirement of a search warrant.
This determination appears to be in keeping with the recent pronouncements of the Supreme Court of Ohio in State v.Reynolds, supra and State v. Madgett,
The judgment of the Perrysburg Municipal Court is reversed and the cause is remanded for a new trial.
Judgment reversed.
POTTER, P. J., and BROWN, J., concur.
However, no search was made at the scene and the arresting officer permitted the defendant to drive his automobile to the police station, while being closely escorted by two police cars.