State v. Hathman

Holmes, J.,

dissenting. The specific issue presented here involves whether any discretion may be allowed a police officer in what is looked at during an impoundment inventory search. Even more precisely, the issue here is whether under Florida v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1, and Colorado v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739, an Ohio State Highway Patrolman may examine the contents of a plastic shopping bag found in the trunk of a car being impounded, which bag is in sight, not stapled, tied, taped, or otherwise secured, when the specifically stated policy of the Ohio State Highway Patrol requires the officer to inventory everything in the vehicle that is accessible to him.

In Bertine, the defendant was stopped and arrested for driving under the influence of alcohol. Before the arrival of a tow truck to take the defendant’s van to an impoundment area, a backup officer inventoried the van and opened up a closed backpack in which he found controlled substances and a large amount of cash. The United States Supreme Court held this inventory search not to be violative of the defendant’s Fourth Amendment rights in that there was a local police procedure which required the opening of closed containers and the listing of their contents in vehicles to be impounded. The court further stated:

“ ‘When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.’ United States v. Ross, supra [ (1982), 456 U.S. 798], at 821 [102 S.Ct. 2157 at 2171, 72 L.Ed.2d 572 at 591].” Id., 479 U.S. at 375, 107 S.Ct. at 743, 93 L.Ed.2d at 747-748.

In Wells, supra, the defendant was stopped for speeding by a Florida highway patrolman and was arrested after the officer smelled alcohol on his breath. The defendant’s automobile was taken to an impoundment area, and the defendant allowed the officer to open the trunk. Therein the officer observed a closed suitcase. Employees at the trooper’s station, finding the suitcase to be locked, forced open the suitcase and found a plastic bag filled with marijuana.

The Florida Supreme Court reversed the denial of the motion to suppress the bag of marijuana as evidence. The United States Supreme Court affirmed the Florida Supreme Court, holding that absent any highway patrol policy *410with respect to opening of closed containers encountered during an inventory search, the instant search was insufficiently regulated to satisfy the Fourth Amendment. The court pointed out that “the Supreme Court of Florida found that the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search.” Id. at 4-5, 110 S.Ct. at 1635, 109 L.Ed.2d at 7.

However, the court stated that where there exists “standardized criteria,” or a “established routine” of the local police department, nothing in South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, or Illinois v. Lafayette (1983), 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, “ ‘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.’ ” Id., 495 U.S. at 3-4, 110 S.Ct. at 1635, 109 L.Ed.2d at 6, citing Bertine, supra, 479 U.S. at 375, 107 S.Ct. at 748, 93 L.Ed.2d at 743. Further, the court stated: “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.” Id., 495 U.S. at 4, 110 S.Ct. at 1635, 109 L.Ed.2d at 6.

The United States Supreme Court in Wells concluded that inventory searches “ ‘serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property * * * ’.” Id., citing Bertine, supra, 479 U.S. at 372, 107 S.Ct. at 741, 93 L.Ed.2d at 745-746.

At the suppression hearing here, on direct examination, Daniel S. Aleshire, the Ohio state trooper who inventoried the defendant’s automobile, was asked the question, “[W]hat’s the Patrol’s policy about what to do with a car when you arrest the driver?” His answer was, “[The] standard procedure is to make an administrative inventory of the vehicle so nothing gets lost between the time that we turn it over to the wrecker service and it’s returned back to the party, if and when.”

Officer Aleshire further testified on direct as follows:

“Q [Prosecutor] What is the Patrol’s policy about the inventorying of how much of the car? Do you just inventory the passenger compartment or any other parts of the car, or what?

“A [Aleshire] Any area of the car that’s accessible to me.

“Q Okay. And what do you mean by ‘accessible’?

“A The whole interior of the car. Under the seats, glove box, engine compartment, trunk, if there’s a key.

*411it * * *

“Q How did the key situation work on this 1980 Toyota?

“A The ignition key fits the ignition, the doors and the trunk.”

The officer then stated that when he opened the trunk, he saw an old spare tire and could see something white lying under the tire. He lifted the tire and saw the white plastic K-Mart shopping bag that had been wedged underneath. On cross-examination, he testified that he then rolled the top of the bag back and saw that the contents thereof contained a large amount of cash and a pill container. The cash was later inventoried to be two $100’s, ten $50’s, 147 $20’s, 131 $10’s, 72 $5’s, and 132 $l’s, a total of $5,442.

Ohio State Patrol Officer Choya R. Hawn, the arresting officer at the scene, testified as to the Highway Patrol’s inventory policies as follows:

“A [Hawn] Well, any time that you take the Defendant away from the vehicle you assume responsibility for it if he’s going to be incarcerated, or if he’s not going to be able to be returned to the vehicle.

“Q [Prosecutor] Who says so?

“A The Highway Patrol policies say so.

“Q Okay. That’s your Patrol — your employer’s policy dictates that?

“A Yes, sir, that’s correct.

“Q Okay. And without my interrupting you, just state that policy, please?

“A Just any time that you assume responsibility for a vehicle — it can be a vehicle that’s involved in an accident, where the subjects are taken to the hospital * * * or any time that someone is arrested and there’s no one else to remain with the vehicle, you’re not going to make other arrangements for the vehicle to be removed, it has to be inventoried and has to be towed and you have to wait with it until the wrecker signs for it and assumes responsibility for it from you.”

The trial court, upon denying the motion to suppress the contents of the bag, held:

“However, both officers, and especially Trooper Hawn, clearly indicated that the Ohio State Highway Patrol has an administrative policy that whenever the driver or owner of a vehicle is being separated from the vehicle they make a search of the vehicle to protect themselves and the owner-driver, in the event there is any subsequent claim of missing property from the vehicle.

“The right to do that administrative search doesn’t depend on whether or not the Defendant is under arrest or not, whether a search warrant could have been secured or not, it is an administrative policy.

*412“There has been no evidence to indicate that that is not the policy of the Patrol, or that that policy is somewhat limited, depending on the circumstances.

“Therefore, the Court accepts that evidence as what it stated it was; therefore, this was a valid administrative or inventory search, and it was a result of that search that the officers had the right to make the search; the search, including the search of the trunk, was valid.”

At the suppression hearing, as previously noted, Officer Aleshire testified that he was required under Ohio Highway Patrol policy to inventory everything in an impounded vehicle that was accessible to him. “Accessible” is defined by Webster’s Third New International Dictionary (1986) 11, as “capable of being reached or easily approachable”; by the Random House Dictionary of the English Language, Unabridged (2 Ed.1987) 11, as “easy to approach, reach, enter * * * ” and as “obtainable, attainable”; and by I The Oxford English Dictionary (2 Ed.1989) 73, as “affording entrance” and as “come into the presence of, reach, or lay hold of.”

While the Highway Patrol policy does not use the specific words “closed containers,” it does require the officer to inventory everything accessible to him, which would include the contents of all easy-to-open or reach containers. The Seventh Circuit has held Florida v. Wells does not require a policy to use the buzz words “closed container”; rather, the substance of the policy must be examined to determine if in fact it authorized the action actually taken. See United States v. Wilson (C.A.7, 1991), 938 F.2d 785.

The court of appeals below reversed on the basis that, while there was a policy to conduct an administrative inventory search of an impounded vehicle, there was no specifically stated policy regulating the opening of closed containers found during inventory searches. This is an unfortunate hyper-technical reading of Florida v. Wells. After all, the main purpose of an inventory search is to account for all property in a vehicle being impounded before it is exposed to possible loss or vandalism at the impound area. What could be more consistent with the proper security of the property than having the officer identify everything he can easily reach?

This is not a case where the officer had to pry the container open, use a torch to cut away some metal, pick a lock, or even rip a bag open, which might raise an issue whether the bag’s contents were in fact accessible. A photo of the bag is in evidence and that evidence shows the bag to be in an undamaged condition. Officer Aleshire testified, “I just folded it down to where you could see what it was, yes.” It obviously was an easy thing to do. The patrol’s policy controlled, the contents of the bag were properly inventoried, and the trial court properly overruled the motion to suppress.

*413Accordingly, I would reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

Spellacy, J., concurs in the foregoing dissenting opinion.