State v. CalvinState v. Calvin
Kenneth J. Rexford for Appellant
Elizabeth H. Smith for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Saudi Calvin (“Calvin“), brings this appeal from the judgment of the Common Pleas Court of Hancock County, Ohio, denying his motion to suppress, finding him guilty of aggravated possession of drugs, a felony of the third degree in violation of
Factual and Procedural Background
{¶2} The facts relevant to this appeal have been summarized in the trial court‘s judgment entry as follows. On May 29, 2014,1 at approximately 1:20 a.m., Calvin was pulled over for speeding by Sergeant Jacob Fletcher (“Sergeant Fletcher“) of the Ohio State Highway Patrol (“OSHP“). (R. at 53.) Sergeant Fletcher discovered that Calvin had been driving under suspension, and arrested him for the offense. Thereafter,
[Sergeant Fletcher] decided to tow the vehicle since Defendant was an out-of-state resident and there was no other reasonable alternative nearby to handle safekeeping of the vehicle due to its location on Interstate 75 and the unknown length of time the vehicle would be unsupervised.
Sgt. Fletcher began conducting an inventory of the vehicle. The Ohio State Highway Patrol mandates that its troopers complete an Administrative Inventory and Custody Report (State‘s Exhibit 1) any time a vehicle is taken by a person without the driver for the
purposes of protecting the driver‘s valuables and protecting the officers, tow drivers, or any third parties from liability for valuables contained within the vehicle. Sgt. Fletcher filled out an Administrative Inventory/Custody Report in this matter. (State‘s Exhibit 2). Sgt. Fletcher started at the front passenger compartment before moving on to the glove box, the rear passenger compartments, and the trunk. Defendant informed Sgt. Fletcher that the trunk was faulty and could only be opened by pulling a string which triggered a release of the trunk. Sgt. Fletcher attempted to pull the string, however the string broke and the trunk did not release. Sgt. Fletcher then pulled the back seat down and gained access to the trunk, where he obtained a bag of miscellaneous clothing and a plastic bag of white pills located within a tennis shoe located in a gym bag. The pills were later determined to be 120 pills of Oxycodone and 11 pills of Alprazolam. Defendant did not produce a valid prescription. The vehicle was then taken to the Findlay Post of the Ohio State Highway Patrol for an additional search as a result of the discovery of the pills. Defendant, Saudi Calvin, admitted that the pills belonged to him and that he had packed the pills in the gym bag.
(Id. at 4.)
{¶3} As a result of these events, Calvin was indicted on June 10, 2014, for aggravated possession of drugs in violation of
{¶5} The trial court denied the motion to suppress on March 2, 2015. (R. at 53.) Subsequently, Calvin entered a plea of no contest and was found guilty of aggravated possession of drugs, a felony of the third degree in violation of
The Trial Court erred by not suppressing the fruits of a warrantless search of Mr. Calvin‘s vehicle, thereby denying to Mr. Calvin his rights to freedom from unreasonable searches and seizures as guaranteed to him by both the United States Constitution and the Ohio Constitution.
Standard of Review
{¶6} An appellate review of the trial court‘s decision on a motion to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio App.3d 46, 51, 735 N.E.2d 953 (3d Dist.1999). We will accept the trial court‘s
{¶7} Under this standard of review, the trial court‘s findings of fact recited above are accepted as true, as they are supported by competent and credible evidence adduced at the hearing. We thus proceed to analyze the legal issue of whether these facts support the trial court‘s conclusion that Calvin‘s constitutional rights were not violated in this case as a result of the warrantless search of his vehicle.
Law and Analysis
{¶8} It is well established that a warrantless search is per se unreasonable unless certain “specifically established and well delineated exceptions” exist. City of Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988), quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The burden is on the state to establish that a warrantless search is
{¶9} The landmark case for the inventory search exception is S. Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). There, the United States Supreme Court recognized “three distinct needs” that justify the inventory search exception to the warrant requirement: (1) “the protection of the owner‘s property while it remains in police custody“; (2) “the protection of the police against claims or disputes over lost or stolen property“; and (3) the protection of the police and the public from potential danger. Id. at 369; see also id. at 376, fn. 10 (“The protection of the municipality and public officers from claims of lost or stolen property and the protection of the public from vandals who might find a firearm, * * * or as here, contraband drugs, are also crucial.“); accord State v. Mesa, 87 Ohio St.3d 105, 109, 1999-Ohio-253, 717 N.E.2d 329 (1999).
{¶10} The Ohio Supreme Court has recognized that “the validity of an inventory search of a lawfully impounded vehicle is judged by the
{¶11} The trial court in this case concluded that the State sufficiently proved this exception and satisfied the Opperman standard. Yet, Calvin argues that the exception for inventory search should not have been applied because this case did not involve an impoundment of his vehicle. He further suggests that the standardized procedures in place were not reasonable and they were not properly followed by Sergeant Fletcher. We address each challenge separately.
1. Does the Case Involve an Impoundment?
{¶12} The first argument on appeal concerns Sergeant Fletcher‘s statement that Calvin‘s vehicle was not going to be impounded, but only “towed for everyone‘s well-being and safekeeping” into a private tow company‘s lot. (Tr. at 40:6-13; App‘t Br. at 9.) Calvin suggests that towing does not fall within the inventory search exception to the warrant requirement because it involves a mere “assistance,” rather than “taking control of the vehicle.” (App‘t Br. at 9-10.) He thus draws a distinction between the terms “tow” and “impound,” claiming that a mere tow “is not the same trigger for the claimed inventory search” and that only the situations that give the law enforcement “physical possession of the vehicle” create an “impoundment” and fall into the inventory search exception. (Id.)
{¶13} Our review of the record and the case law does not support a legal distinction between the two terms. In fact, research indicates that the terms “tow” and “impound” are often used interchangeably, to refer to various situations when law enforcement officials take a vehicle out of the control of the driver or owner.
{¶14} We recognize that during cross-examination Sergeant Fletcher admitted that there is “a difference between a tow and an impound [sic],” and that a vehicle can be towed “without impounding.” (Tr. at 39:2-4.) Yet, no specific explanation was given for the distinction,2 and according to Sergeant Fletcher, both situations require inventory search, which should be performed any time the police take “custody of a vehicle.” (Tr. at 51:15-17.) Sergeant Fletcher further described situations in which an administrative inventory of a vehicle is performed, as follows:
Any time we take custody of it or any time we take the Defendant we, I guess basically, for lack of better terms, take it from the Defendant. I guess in a sense any time we impound a car. Any time a tow truck comes to the scene of the crash or a traffic stop and takes the vehicle and either the owner or the driver at the time does not go with them with the vehicle, if they are separated, we are required to do a vehicle inventory of that vehicle.
{¶15} Sergeant Fletcher‘s testimony is consistent with the OSHP written policy, which does not distinguish between towing for the purpose of safekeeping and towing for the purpose of impounding. (See Ex. 1, Policy No. OSP-200.10 § (A)(4); see also Tr. at 40:15-24.) This policy indicates that an administrative inventory is necessary whenever officers “remove motor vehicles or other property from the scene to a location of greater security.” (Id.) Therefore, it implies that an
{¶16} Although the exact question presented before us has not been addressed before, Ohio case law supports a conclusion that any time a vehicle is “properly in police custody,” it may be subject to an inventory search “pursuant to standard police policy or practice.” State v. Arbuckle, 9th Dist. Lorain No. 94CA005823, 1995 WL 134751, *2 (Mar. 29, 1995). In Arbuckle, the defendant was arrested for driving without a license and for having an expired license plate. Id. at *1. The police officer began an inventory search of the defendant‘s vehicle “in preparation for having it towed.” Id. After heroin was discovered during the search, the defendant moved for suppression. Id. at *2. The question on appeal concerned the definition of the word “impound” and the defendant argued “that a vehicle is not ‘impounded’ until it is placed” in one of the areas designated for the storage of impounded vehicles. Id. at *3. He claimed that in his case, the vehicle “was searched before it was ‘impounded.‘” Id. at *2. The Ninth District Court of Appeals looked into the definition of the word “impound” and concluded that
Defendant‘s van was “impounded” at the point the officer decided that defendant was not going to be permitted to drive it from the scene and that instead it was going to be towed to one of the locations where the department kept impounded vehicles.
{¶17} The Ohio Supreme Court‘s reasoning, in a case almost factually identical to the instant matter, also supports the definition of “impoundment,” as it is used by the OSHP and advanced by the State. See State v. Robinson, 58 Ohio St.2d 478, 391 N.E.2d 317 (1979). In Robinson, the defendant was pulled over for speeding and arrested upon a discovery that he had a suspended driver‘s license. Id. at syllabus. “[A] tow truck was summoned for the purpose of transporting appellee‘s vehicle to a commercial storage lot for impoundment.” (Emphasis added.) Id. “Prior to the arrival of the truck, the arresting officer procured a standard inventory form from his police cruiser and began a custodial inventory of appellee‘s automobile.” Id. In the vehicle‘s trunk, the officer found a large amount of marijuana. Id. The issue for suppression concerned lawfulness of the “inventory search of the trunk.” Id. at 480. Without expressly distinguishing between a tow to a private company‘s lot and a tow to the police-owned or police-operated storage facility, the Ohio Supreme Court described the situation as one involving “a lawfully impounded automobile.” Id. at 479, 480.
{¶19} In State v. Hoke, 2nd Dist. Champaign No. 07-CA-01, 2008-Ohio-757, the vehicle was never impounded. In that case, a police officer “initially decided he was going to have Hoke‘s truck towed” and searched the vehicle “pursuant to his department‘s inventory policy.” Id. at ¶ 11. It was later determined that the defendant‘s father was able to take the defendant and the
{¶20} We further note that the policy in support of the inventory search exception, as outlined by the United States Supreme Court in Opperman, applies to the instant case, irrespective of whether a private tow truck and lot or a police-operated tow truck and lot are used. See 428 U.S. at 369. The property left in the vehicle is subject to the same risk of being lost or stolen, and the dangerous items in the vehicle are potentially harmful to the public, whether they are in the physical custody of the police or the towing company at the direction and control of the police. See Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Dombrowski, which was decided prior to Opperman and its recognition of the inventory search exception, the defendant‘s “automobile was towed to a private garage,” “[a]t the direction of
{¶21} A review of the state and federal law concerning an administrative inventory search of a vehicle prior to having it towed brings a unanimous conclusion that Calvin‘s vehicle was “impounded,” as this term is used for the purpose of the
{¶22} Calvin next argues that the OSHP did not have an “intelligible policy” for impounding or towing vehicles. (App‘t Br. at 11.) He thus claims that the mandate that the police follow standardized procedures or established routine is not satisfied in this case. See Opperman, 428 U.S. at 375. Calvin relies on a case from the Second District Court of Appeals and its holding that an impoundment ” ‘policy,’ ” which “left the decision of whether to tow an arrested suspect‘s vehicle completely up to the arresting officer‘s discretion,” violated the requirements of the
{¶23} Here, Sergeant Fletcher admitted that there is no “official policy” or a “manual” that would be designed “specifically for” the determination on whether to tow or not. (Tr. at 38:21-25, 41:4-7, 53:12-15.) Yet, he referred to the written policy submitted by the State, which directs the police officers “to remove motor vehicles or other property from the scene to a location of greater security” in the situations of “abandonment, traffic crashes, criminal investigations and certain
{¶24} The United States Supreme Court expressly sanctioned the use of fettered police discretion in deciding whether to impound the vehicle.
Nothing in Opperman or Lafayette prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Here, the discretion afforded the Boulder police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. There was no showing that the police chose to impound Bertine‘s van in order to investigate suspected criminal activity.
Bertine, 479 U.S. at 375-376. Only unfettered discretion is unreasonable and the case before us, does not involve such a situation. See United States v. Arrocha, 713 F.3d 1159, 1163 (8th Cir.2013) (“The requirement that discretion be fettered, however, has never meant that a decision to impound must be made in a ‘totally mechanical’ fashion.... It is not feasible for
{¶25} Calvin asserts that the OSHP wording is “ineffective to establish a reasonable tow/impound policy.” (App‘t Br. at 11.) Yet, this policy, and its application in Calvin‘s case, is consistent with the well-established principle that “[t]he authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” Opperman, 428 U.S. at 369. The Second District Court of Appeals in the case on which Calvin relies recognized this authority, noting that ” ‘[a] car may be impounded if it is evidence in a criminal case, used to commit a crime, obtained with funds derived from criminal activities, or unlawfully parked or obstructing traffic; or if the occupant of the vehicle is arrested.’ ” (Emphasis omitted.) Myrick at ¶ 25, quoting State v. Taylor, 114 Ohio App.3d 416, 683 N.E.2d 367 (1996); see also Kavanagh at ¶ 13, quoting
3. Was the Trunk Search Reasonable?
{¶27} Calvin‘s last contention is based on the method in which Sergeant Fletcher searched the trunk of the vehicle. The OSHP policy OSP-200.10, states:
The following areas should be checked for items of value:
* * *
Trunk area, to include any side panel compartment and under the spare tire (when the trunk key is available, unless exigent circumstances exist or probable cause exists to indicate items of value are present).
(Ex. 1 § 8.) Calvin submits that “[i]n the instant case, no trunk key was available” and therefore, Sergeant Fletcher did not comply with the OSHP procedures, making the search unreasonable. (App‘t Br. at 13.)
{¶28} Sergeant Fletcher testified that he had a key, but “there was no button on the key fob that would open the trunk.” (Tr. at 36:13-14.) He did not recall whether there was “a place on the outside of the trunk for where you would put a key in.” (Tr. at 36:15-17.) The record is thus unclear on the issue of whether the “trunk key” was available.4 It is clear, however, that due to the faulty mechanism for opening the trunk, the key would have been useless for opening the trunk and
{¶29} But strict compliance is not required to satisfy the reasonableness standard of the
The scope of the inventory and the level of security for the property which is inventoried is the responsibility of the officer whose signature appears on the appropriate inventory report.
(Ex. 1.) Section 7, which addresses closed containers, states,
Recent court opinions have indicated that closed containers may be inventoried. This includes locked and unlocked luggage and briefcases as well as other closed, sealed, or taped containers. Should a key be available, locked containers should be opened and the contents inventoried. Should a key not be available, the decision to open locked containers should be based on the totality of the circumstances and whether the contents of the container can be determined by the container‘s exterior.
(Emphasis added.) (Id.) Additionally, section 8, which describes the area of inventory, states that the passenger compartment of a motor vehicle should be checked for items of value. “The passenger compartment is defined as any place the occupant can reach without exiting the vehicle.” (Id.)
{¶31} Therefore, the procedures in place required Sergeant Fletcher to secure any property within Calvin‘s vehicle or be responsible for it. (See Ex. 1 § 5.) The procedures further allowed Sergeant Fletcher to decide to open any locked container based on the totality of the circumstances (see id. § 7), and mandated a search of “any place the occupant can reach without exiting the vehicle” (id. § 8).
{¶32} For all of the foregoing reasons, we hold that the trial court did not err in denying Calvin‘s motion to suppress and we overrule the assignment of error on appeal.
Conclusion
{¶33} Having reviewed the arguments, the briefs, and the record in this case, we find no error prejudicial to Appellant in the particulars assigned and argued. The judgment of the Common Pleas Court of Hancock County, Ohio is therefore affirmed.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/hlo