2006 Ohio 6058 | Ohio Ct. App. | 2006
{¶ 2} Appellant, Kris Kerr, was charged with one count of illegal assembly or possession of chemicals for manufacture of drugs, in violation of R.C.
{¶ 3} Appellant pulled into a BP gas station and parked in a parking space. After approximately 20 minutes, appellant had not exited the vehicle. A friend of the station attendant went out to appellant's vehicle, noticed him slumped over the steering wheel, and tapped on the glass. When appellant could not be roused, the attendant called Northwood police.
{¶ 4} A police cruiser responded, parking behind appellant's vehicle. Officer Ryan Graves testified that appellant appeared to be unconscious. Graves also tapped on the glass several times, first with his hand, and then using his flashlight. Appellant finally opened his eyes, but was unable to roll down the window at the officer's request. Graves then opened the car door and asked appellant if he was "okay." Appellant gave Graves his identification information which was relayed to the dispatcher. Appellant also said that he had borrowed the car from a friend.
{¶ 5} A second patrolman who had arrived at the scene ran the vehicle's license plate to determine ownership. Meanwhile, thinking appellant had a medical problem, Graves continued talking to appellant who kept falling asleep. Although the vehicle did not come back as stolen, an active Williams County arrest warrant for appellant was discovered. At that point, appellant was taken into custody, handcuffed, and placed in the back seat of Graves' cruiser. Graves stated that, since the vehicle did not belong to appellant, and no other driver was present to take possession of the car, it was Northwood police policy to tow the vehicle for safekeeping.
{¶ 6} Graves also stated that, pursuant to police policy, he and the other officer began to do an inventory search of the entire vehicle. Under the driver's side seat, the officers found a small container with white powdery residue inside a larger clear plastic container. Another small container with a red substance was also found. When the officers opened the trunk they found a large white gas-type metal cylinder, along with a motorcycle battery charger, hoses, pumps, strainers, and decongestant tablets which contained pseudoephedrine. Based upon his training and experience, Graves testified that the items were commonly used in the production of methamphetamines.
{¶ 7} Upon finding the cylinder, the officers asked appellant what was in it. Appellant responded that it contained anhydrous ammonia. Graves testified that anhydrous ammonia is extremely flammable and the cylinder in appellant's vehicle was not of the proper type. Concerned that the cylinder might cause safety concerns at the gas station or while being towed, the officers then called their captain and the local fire chief. Firemen arrived, inspected the cylinder, and advised that it was safe to tow the vehicle. Appellant was then taken to the police department where he was given his Miranda rights.
{¶ 8} The trial court denied appellant's motion to suppress the evidence obtained during the inventory search. Ultimately, appellant pled no contest and was found guilty as to both counts. As to Count 1, illegal assembly or possession of chemicals for manufacture of drugs, the court sentenced appellant to a prison term of four years, suspended his driver's license for five years, and imposed a mandatory $5,000 fine. As to Count 2, aggravated possession of drugs, the court imposed an 11 month prison term, to be served consecutively to the sentence for Count 1 and to the prison term imposed out of Williams County.
{¶ 9} Appellant now appeals from that judgment, arguing the following three assignments of error:
{¶ 10} "First Assignment of Error.
{¶ 11} "The trial court erred in denying the defendant's motion to suppress.
{¶ 12} "Second Assignment of Error.
{¶ 13} "The defendant was denied effective assistance of counsel.
{¶ 14} "Third Assignment of Error.
{¶ 15} "The imposition of consecutive and above the minimum terms of incarceration were contrary to law and unsupported by the record and findings."
{¶ 17} When considering a motion to suppress, the trial court assumes the role of trier-of-fact and is in the best position to resolve factual questions and evaluate the credibility of a witness. State v. Mills (1992),
{¶ 18} The
{¶ 19} The rationale for excluding inventory searches from the warrant requirement is that inventory searches are an administrative or caretaking function, rather than an investigative function. Opperman,
{¶ 20} Consequently, in determining whether an inventory search is valid, a court must determine whether the police "lawfully impounded" the vehicle. State v. Cole (1994),
{¶ 21} Moreover, the reasonableness of an inventory search does not necessarily or invariably turn on the existence of alternative, less intrusive means. Illinois v. Lafayette
(1983),
{¶ 22} In this case, the Northwood Police towing policy states that the police "may direct towing and/or impoundment for a number of legitimate purposes. * * * Movement of a vehicle to a secure location may be necessary to protect the public and to safeguard the vehicle and any property contained in it. * * *." In another section, the policy states that:
{¶ 23} "Whenever a motor vehicle is towed at the request of police, the personal property contained in the vehicle shall be inventoried. The only exception is tow service requested at the scene of a traffic crash further known as public assistance towing. The inventory is considered a `police caretaking procedure,' and it is necessary for the protection of the owner's property to avoid police liability for loss of the property while the vehicle is in custody, and for safety reasons, i.e., to ensure that no explosive, flammable or otherwise hazardous devices or substances are present in the vehicle." Finally, a third section states that "The inventory should include an examination of the exterior of the vehicle. Any damage existing at the time of the tow should be noted. The inventory should also include the interior of the vehicle along with any compartments or containers. Personal property left in the vehicle should be noted. Also note any accessories such as radio, tape, or CD players."
{¶ 24} When considered together, these sections of the Northwood policy provide an established procedure which permitted the officers to tow the vehicle appellant was driving. Appellant was not the owner of the vehicle and was being taken into custody. Although the owner was known, the police were not required to try to locate that owner prior to the decision to tow. The vehicle was parked in a gas station and, under the circumstances of appellant's arrest, the police had no way of knowing how long it would remain there before the owner might retrieve it.
{¶ 25} In addition, the policy provides that, incident to the inventory of a towed vehicle, the police are to inspect the outside and interior of the vehicle, including any closed or "locked" areas. Therefore, prior to having the vehicle towed, the officers' inventory of the trunk was reasonable, since they had a key which would have been given to the towing company. Once the officers saw the cylinder, indicating the possibility of additional criminal activity, however, the better course of action would have been to stop the inventory search and call for a warrant. Nevertheless, under the particular circumstances in this case, the initial search of the trunk was appropriate, not only to protect the police and towing company liability, but also, to protect the public from items which may have been potentially dangerous, i.e., the anhydrous ammonia cylinder. Thus, the decision to tow the vehicle and then to conduct the inventory search was made substantially in accordance with standardized procedures of the Northwood Police Department.
{¶ 26} In addition, nothing in the record indicates that the inventory search of appellee's vehicle was conducted in bad faith or for the sole purpose of investigation. Although we agree that the officers should have given appellant his Miranda rights at the time he was arrested and placed into the police vehicle, we cannot say that his statement regarding the contents of the cylinder prejudiced his case. The cylinder itself had already been lawfully discovered during the inventory of the vehicle. Even presuming that the delay in giving appellant his Miranda
warnings violated his constitutional rights, the contents of the cylinder would then have been discovered and was admissible, even without any statement by appellant. See State v. Perkins
(1985),
{¶ 27} Accordingly, appellant's first assignment of error is not well-taken.
{¶ 29} The United States Supreme Court devised a two prong test to determine ineffective assistance of counsel. Stricklandv. Washington (1984),
{¶ 30} Scrutiny of counsel's performance must be deferential.Strickland, supra, at 689. In Ohio, a properly licensed attorney is presumed competent and the burden of proving ineffectiveness is on the defendant. State v. Lott (1990),
{¶ 31} In this case, appellant primarily relies on proposed errors pertaining to the suppression hearing, including counsel's misapplication of chain of custody law and the failure to raiseMiranda issues. Since we have determined that the motion was properly denied under the inventory exception, any error associated with the suppression hearing is harmless. Even presuming for the sake of argument that counsel's performance was less than competent, appellant has failed to establish the reasonable probability of a different outcome in the proceedings. Therefore, since appellant cannot demonstrate the second prong of the Strickland test, his claim of ineffective assistance of counsel is without merit.
{¶ 32} Accordingly, appellant's second assignment of error is not well-taken.
{¶ 34} The Supreme Court of Ohio has held that R.C.
{¶ 35} In this case, the trial court did not specifically reference any of the statutes held to be unconstitutional byFoster. Rather, the court found, pursuant to "the sentencing factors as set forth in the Ohio Revised Code" and R.C.
{¶ 36} R.C.
{¶ 37} "discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section
{¶ 38} In considering the factors in R.C.
{¶ 39} Appellant argues that because the record did not support a finding that appellant's actions were part of organized criminal activity or that the offense posed a risk of physical harm to persons, the court's conclusion that the offense was more serious must be reversed. Although we agree that the record may not demonstrate that appellant's acts were part of organized criminal activity, this is not the only factor the court relied upon. Appellant purchased and transported a large quantity of anhydrous ammonia in an unapproved container in the trunk of his car, an act which had the potential for causing serious physical harm to many people. The fact that appellant may not have sold or provided methamphetamines to other people was not the only risk posed by his offense. Consequently, the trial court's finding that appellant's offense posed a risk of physical harm to persons was supported by the record.
{¶ 40} Even presuming that these two findings were incorrect, however, such factors are not required. Under R.C.
{¶ 41} The court also noted that appellant had not responded positively after imposition of the prior prison term and that more than minimum sentences were needed to protect the public from appellant's future crimes. Appellant was sentenced to four years for Count 1, a third degree felony, and to 11 months for Count 2, a fifth degree felony, well within the statutory ranges allowed. Therefore, under the facts of this case, we cannot say that appellant has demonstrated by clear and convincing evidence that the trial court's sentence was contrary to law.
{¶ 42} Accordingly, appellant's third assignment of error is not well-taken.
{¶ 43} The judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Wood County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Handwork, J., Singer, P.J., Parish, J., Concur.
