I respectfully dissent from the conclusion reached by the majority that the initial stop was unreasonable, and from the decision to affirm the trial court's suppression of evidence in this case.
Based on my review of the facts and controlling case law, I believe both the initial stop of the vehicle and the on-scene police actions regarding the briefcase are constitutional and constitute good police work. Accordingly, I dissent.
In my view, the initial stop of the vehicle was not unreasonable. At the trial level, both defense counsel and the trial judge expressed this same opinion. In its ruling, in language which immediately follows the passage quoted by the majority, the trial court stated:
"[D]efense counsel conceded that the initial stop and search of the immediate area in the passenger compartment was justified under the circumstances. And the Court does not disagree with that, that did not warrant, or is questionable that warranted the search of the trunk of this car * * *." See transcript of proceedings of April 22, 1994, page 4. See, also, transcript of the evidentiary hearing, March 3, 1993, at 148-150 (colloquy between the trial court and defense counsel in which defense counsel concedes that there is no constitutional infirmity from the time of the initial stop through the search for weapons).
As a consequence, appellee has waived this issue and this court need not consider appellee's assertions regarding the propriety of the initial stop. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus, vacated as to death penalty (1978), 438 U.S. 911,98 S.Ct. 3137, 57 L.Ed.2d 1156, and cited with approval in State v.Bidinost (1994), 71 Ohio St.3d 449, 453, 644 N.E.2d 318,322-323.
Additionally, the facts demonstrate that the initial stop was permissible. Vice detectives, who were involved in a prostitution detail, observed a known prostitute exit a Cadillac, enter a barbershop which was "the source of numerous complaints of prostitutes hanging around," and approach the Cadillac after it had turned the corner and she had left the barbershop. Through their experience, the officers knew that this sequence of events was consistent with an attempt by the prostitute to avoid police. Additionally, when the officers approached the *Page 738 Cadillac, the woman who had left the barbershop became violent and the two individuals in the back seat of the car "began shoveling things with their hands."
Certainly, these circumstances present the "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v.Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880,20 L.Ed.2d 889, 906. In light of this entire sequence of events, the initial stop was appropriate with respect to appellee — the driver of the vehicle who appeared to the officers to be evading their surveillance. The initial stop in this case was not unreasonable and does not in my view provide a basis to affirm the trial court's grant of the motion to suppress evidence.
Rather, the crux of this appeal is whether the act of police officers while conducting a routine inventory search of the car, in looking into one side of an unlocked briefcase, constituted an unreasonable search prohibited by the Fourth Amendment. The officers located the briefcase in the trunk of the car while preparing an inventory of personal property pursuant to an established written Cleveland Police Department procedure to remove property such as jewelry, cameras, radios, TVs, golf clubs, clothing or other valuables prior to towing.
Recognized needs for conducting an inventory search of automobiles include protection of the property while in police custody, avoidance of disputes about lost or stolen property, and elimination of potential danger emanating from the property. See South Dakota v. Opperman (1976), 428 U.S. 364, 369,96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000, 1005, and cases cited therein. Such searches are now a well-recognized exception to the requirement of obtaining a warrant under the Fourth Amendment. Colorado v.Bertine (1987), 479 U.S. 367, 369, 371, 107 S.Ct. 738, 740, 741,93 L.Ed.2d 739, 745. Thus, the activities of these officers are questioned here only insofar as they encountered a briefcase that the majority characterizes as a closed container.
In Bertine, supra, the United States Supreme Court determined that in the absence of a showing that police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation, evidence discovered during an inventory search was admissible. There, the court upheld the search of a van during which officers located a backpack behind the front seat and inside observed a nylon bag containing metal canisters which were opened and found to contain $700 in cash, cocaine, methaqualone tablets, and cocaine paraphernalia.
But in Florida v. Wells (1992), 495 U.S. 1, 110 S.Ct. 1632,109 L.Ed.2d 1, in reviewing a situation where the inventory of the vehicle turned up a locked suitcase in the trunk of the car, and where the trooper instructed employees of the impounding facility to force the suitcase open, which revealed a garbage bag containing a considerable amount of marijuana, the court held that absent any policy with respect to the opening of closed containers encountered during an *Page 739 inventory search, the search was insufficiently regulated to satisfy the Fourth Amendment. The court further stated at495 U.S. at 4, 110 S.Ct. at 1635, 109 L.Ed.2d at 6:
"A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself."
And finally, in State v. Hathman (1992), 65 Ohio St.3d 403,604 N.E.2d 743, the court held in its syllabus:
"2. If, during a valid inventory search of a lawfully impounded vehicle, a law enforcement official discovers a closed container, the container may only be opened as part of the inventory process if there is in existence a standardized policy or practice specifically governing the opening of such containers." (Citing Bertine and Wells, supra.)
The distinctions to be drawn in the instant case which distinguish it from Wells, supra, are that the police did not force open this briefcase; instead, one officer peered into the unlocked left corner in furtherance of the defined and regulated inventory search, not acting in bad faith or for the sole purpose of investigation. Concerned about transcending the scope of the inventory search, the officers obtained a warrant before openingthe briefcase. This is the procedural safeguard which theFourth Amendment demands. This action then distinguishes this case fromWells and removes it from Hathman, supra, where no warrant was obtained.
I cannot comprehend why, in view of such clear directives asBertine, Wells, and now Hathman, law departments do not promulgate the policies demanded by those decisions to facilitate the work of the police officers who daily encounter this kind of situation. The United States Supreme Court has approved of one policy, for example, authorizing the opening of every closed container encountered in a search. See Bertine,supra. On the other hand, to blindly transport all closed container items unopened or taped shut or otherwise sealed at the scene upon discovery to the police station for later review or inventory exposes police authorities and citizens alike to all of the risks detailed in Opperman: theft or loss of the property, civil litigation, and dangerous material being delivered to police stations.
Because the initial stop of this vehicle was not unreasonable under Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889, and because the inventory search of the vehicle was done in accordance with standard police procedures, and because when the briefcase was encountered, it was only locked on one side and the officer in furtherance of his inventory duties made a good faith cursory examination and upon reasonable suspicion obtained a search warrant before *Page 740 opening the briefcase, I would reverse the judgment of the trial court on the motion to suppress, and permit this evidence to be used at trial. Accordingly, I dissent.