683 N.E.2d 367 | Ohio Ct. App. | 1996
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *418 Defendant-appellant Jason Taylor appeals from his conviction and sentence, following a plea of no contest, upon the charge of carrying a concealed weapon. Taylor contends that the trial court erred by refusing to grant his motion to suppress certain evidence obtained as a result of a warrantless search of his car after a traffic stop.
We conclude that although the vehicle was lawfully stopped, its impoundment and inventory search were neither authorized nor justified. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
The only testimony provided at the suppression hearing was that of Officer Dewayne Williams and Sergeant Steve Lord of the Covington Police Department in Miami County, Ohio. Officer Williams testified that on November 6, 1994, he observed Taylor traveling west on East Broadway Street in Covington, Ohio, in a 1977 Oldsmobile at approximately 12:47 a.m. As the vehicle passed, Williams noticed that the window tinting on the vehicle appeared exceptionally dark. Indeed, he could not see into it even with the cruiser headlights shining directly on the vehicle. Believing the tinting to exceed the amount allowed by law, Williams pulled the vehicle over and called for backup. Sergeant Lord arrived on the scene soon thereafter. Williams approached the car from the driver's side. He testified that until the driver's window was lowered, he could not see anyone in the vehicle due to the tinting.
Once Williams approached the car, he asked Taylor to step out of the vehicle. He then informed Taylor that he had been stopped for excessive tinting on the vehicle. When first speaking to Taylor, Williams asked if Taylor had any *419 firearms, drugs or other contraband in the vehicle. Williams testified that Taylor denied possessing any contraband. He further testified that Taylor stated that he knew that the tinting was only about five percent. Williams thereafter checked the tinting with a tint meter, and found that it actually allowed a light transmittance of only 4.4 percent. Williams testified that after using the meter, he determined the vehicle to be unsafe, and decided to remove the car from the roadway.
Williams removed all of the passengers from the car, patted them down, and checked their identification. He also checked the car's registration, and ran a driver's license check on Taylor and the other occupants of the vehicle. Williams testified that the registration and license inquiries were unremarkable. The vehicle was registered to Taylor. None of the license checks indicated that there were any outstanding warrants or any "armed and dangerous" reports for any of the vehicle's occupants. Thereafter, the passengers were allowed to leave.
Williams testified that a tow truck was called. In preparation for the impoundment, Taylor's vehicle was secured by conducting an administrative vehicle inventory search. This search revealed a pistol. Taylor was issued a citation for the window tint violation, and was arrested for carrying a concealed weapon.
Upon cross-examination, Williams testified that he checked identification of all of the passengers because they were acting in a very suspicious manner. Williams said the occupants were "very uneasy, very anxious, not wanting to look or talk directly to [him] in any way." According to Williams, during this stop, the occupants' level of nervousness, anxiety, and unease was higher than is normal for a traffic stop. Williams testified that most people will look at, and talk directly to, the officer. Williams also testified that a "light went off" when he noted the manner in which Taylor watched him in his side view mirror. The officer continued, "People do not react that way on a routine traffic stop in the manner that they constantly fix their gaze upon you, keeping an eye on your location at all times." Williams became suspicious that the situation was something more than an ordinary traffic stop. Williams was not able to observe anyone making furtive movements or attempting to hide anything due to the excessive tinting. When he reached the point where he could see into the car through the driver's window no one was moving furtively due to fact that he told them to keep their hands raised.
Williams did not allow Taylor the option of driving the vehicle away or of arranging to use a towing service to remove the vehicle from the road. Williams further testified that the car was searched as an administrative inventory search, and not because the occupants were acting suspiciously. He also testified that he had decided to have the vehicle towed before he checked the window tint. *420
Sergeant Lord testified that he acted as backup on the traffic stop. He also stated that he could not see into the vehicle. Even when he used his flashlight, he could see only shadowy figures. He testified that he tows cars for certain equipment violations; for example, he stated that he might tow a car for having two headlights out, but not for having just one faulty headlight. He stated that he did not normally tow cars for window tint, but agreed with Officer Williams's decision to tow. He also stated that he had never been involved in a traffic stop of a vehicle with such a high level of tinting.
The trial judge denied Taylor's motion to suppress. The trial court found that the initial stop was lawful, and that the "officer's decision to remove the vehicle from the roadway on which it was parked for public safety purposes was also appropriate and reasonable under the circumstances."
Taylor's sole assignment of error is as follows:
"Appellant's conviction for carrying a concealed weapon must be reversed because the car was seized in violation of the Fourth Amendment."
Taylor's argument on appeal is twofold. Initially, he contends that there was no justification for the traffic stop of his vehicle. Additionally, he argues that even if the stop was reasonable, the police had no authority to impound or to inventory his vehicle.
At the outset, we note that the trial court found that the stop of Taylor's vehicle was valid, finding that the level of tinting was sufficient to create probable cause to believe that a motor vehicle violation had occurred. We agree.
Stopping a vehicle is a Fourth Amendment seizure, which requires a balancing of the public's privacy interests against the legitimate government interest behind the stop to determine whether the seizure is reasonable. Delaware v. Prouse (1979),
Officer Williams's unrefuted testimony was that when he first noticed the vehicle, he observed that the window tinting was so excessive that he could not *421
see into it even with his headlights shining directly on the windows. We agree that this could have reasonably caused Williams to suspect that Taylor's vehicle was unsafe and in violation of R.C.
We next turn to Taylor's argument that the state exceeded its authority in impounding his vehicle, and that the subsequent inventory search was illegal. The state cannot justify its search as having been incident to a lawful arrest, because under ordinary circumstances the commission of a minor misdemeanor will not support an arrest. Furthermore, the record clearly shows that the officer did not arrest Taylor as a result of the window tint violation, but merely issued a citation. We also note that the state has not tried to justify its search of the vehicle under the "search incident to arrest" exception to the requirements of the Fourth Amendment.
The state bears the burden of establishing that a warrantless search is valid under one of the exceptions to the warrant requirement. The state argues that the search of Taylor's vehicle was a valid inventory search, citing Xenia v. Wallace
(1988),
The United States Supreme Court has emphasized the requirement that inventory searches be done in accordance with standardized criteria. S. Dakota v. Opperman,
However, in order to determine whether the inventory search in the case before us was permissible, we must first determine whether the vehicle was lawfully impounded. The question we must answer then is what constitutes a lawful impoundment.
"In determining the lawfulness of the impoundment, authority to impound should never be assumed. 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; or when impoundment is otherwise authorized by statute or municipal ordinance.
"* * *
"An impoundment implies some public policy purposes being served; a legitimate purpose should not be assumed." Katz, Ohio Arrest, Search and Seizure (1996), 224-25.
The state contends that the statutory authority to impound Taylor's vehicle is contained within R.C.
"When any motor vehicle is found to be unsafe for operation, the inspecting officer may order it removed from the highway and not operated, except for purposes of removal and repair, until it has been repaired pursuant to a repair order as provided in division (F) of this section."
The state claims that the plain meaning of the statute allows impoundment and towing. We decline to accept this interpretation of the statute.
"In construing a statute, a court's paramount concern is the legislative intent in enacting the statute. * * * In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished. * * * Words used in a statute must be taken in their usual, normal or customary meaning. * * * [I]t is the duty of the court to give effect to the words used and not to insert words not used. * * * Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply rules of statutory interpretation. * * * However, where a statute is found to be subject to various interpretations, a court called upon to interpret its provisions may invoke rules of statutory construction in order to arrive at legislative intent." State exrel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994),
Obviously the purpose of the statute in question is to aid in ensuring that unsafe vehicles are taken out of operation until repaired. The statute does not expressly provide for, or purport to authorize, the impoundment of unsafe *423
vehicles. We believe that a plain reading of the statute expressly allows an officer to effect the purpose of the statute by giving him the power to order that a vehicle be removed from the roadway. This statute provides for the removal, not the impoundment, of unsafe vehicles. This is not a mandatory statute. It employs the word "may," which is "generally construed to render optional, permissive, or discretionary the provision in which it is embodied * * *." State ex rel. Niles v.Bernard (1978),
Significantly, statutes that provide expressly for impoundment, like the statutes concerning driving while impaired or driving under suspension, also provide for the ultimate disposition of the vehicle following impoundment. If we were to hold that R.C.
Based upon the foregoing, we find that while Taylor's vehicle was legitimately stopped, there was no authority to impound the vehicle under the state's claimed statutory authority. The state has not set forth any other statute under which it *424 claims such authority exists. Nor was there any proof at the hearing that any other circumstances authorized the impoundment. Because we find that the impoundment was unauthorized, we find that the subsequent inventory of the contents of the vehicle, although performed in accordance with standardized procedure, was unlawful.
Taylor's sole assignment of error is sustained. The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
Judgment accordingly.
WOLFF, J., concurs.
GRADY, J., concurs separately.
Concurrence Opinion
I agree that because a violation of R.C.
