Setting aside the absurdity of appellant’s argument that [Det.] Williamson should have left a running vehicle, which was abandoned by a fleeing suspect, parked in the driveway of an unrelated third party until the titled owner could be contacted and made to come retrieve the vehicle … we hold that the vehicle was lawfully impounded, and the inventory search was reasonable as an exception to the constitutional prohibition on warrantless searches.
State v. Kendall
2021 – Ohio – 1551
Sixth District Appellate Court
Williams County, Ohio
April 30, 2021
On Friday March 15, 2019 at 11:30 a.m. Detective Tracey Williamson of the Bryan City Police Department responded to a call of a person unconscious in a vehicle. When Det. Williamson arrived, she observed Mr. Andrew Kendall in the driver’s seat of a Chevy Lumina, slumped over the steering wheel. The car was not on, but the keys were in the ignition. Det. Williamson knocked on the door, but Mr. Kendall did not respond. Det. Williamson then opened the door and nudged Mr. Kendall, at which point he became alert. Det. Williamson checked on the status of his driver’s license and learned that it was suspended. Det. Williamson also testified that earlier, during her shift brief, she received information from Defiance County that Mr. Kendall may have been sold or knew the location of a stolen handgun. The Sixth District Appellate Court will later learn that Mr. Kendall was chock full of probable cause.
After Mr. Kendall woke up, Det. Williamson initiated a conversation with him to determine if he was okay, why he was there, and who owned the Lumina. Det. Williamson, stated Mr. Kendall could not remember the name of the person who owned the car. Det. Williamson later learned through dispatch that the car was registered to M.M. [M.M.’s full name has been redacted] Mr. Kendall told Williamson that the car was not starting properly, and that he was working on it for the owner. Even at this juncture the owner of the vehicle could not be recalled. Perhaps Mr. Kendall was a good Samaritan? Or perhaps not.
When Det. Williamson asked where the owner was, Mr. Kendall responded that she was in the residence near where the car was parked. Det. Williamson knocked on the door of the residence and E.D. [E.D.’s full name has been redacted] answered the door. Det. Williamson asked E.D. where the owner was, and E.D. “[K]ind of looked at Mr. Kendall, looked at me, [and] said the person walked away.” E.D. later told Det. Williamson that the owner had to go to a doctor’s appointment and got a ride from someone else. E.D. did not know the name of the owner of the Lumina. Funny how E.D. knew where the owner was but did not know her name.
As part of the interaction, Det. Williamson attempted to determine if Mr. Kendall was under the influence of drugs or alcohol. Det. Williamson led Mr. Kendall to the sidewalk and asked him to perform some field sobriety tests, following which Det. Williamson determined that Mr. Kendall appeared sober. However, Det. Williamson testified that she smelled raw marijuana on Mr. Kendall, and observed “green stuff” in his fingernails, which in her experience could have been marijuana. In law enforcement parlance this is called a ‘clue’. Mr. Kendall explained that he worked security for a marijuana growing operation in Michigan, but that he did not “mess with it,” to which Det. Williamson rhetorically asked “well why is it on your hands?” Notably, the timing of Det. Williamson’s observations about marijuana in the sequence of events is not clear from her testimony. Later the Sixth District Appellate Court determined that lack of clarity of timing was insignificant when determining Mr. Kendall was walking probable cause. [Walking probable cause is NOT an actual legal doctrine but a term of art found on Objectivelyreasonable.com and in many of my presentations.]
Det. Williamson then wanted to investigate the possible stolen gun that she had learned during her shift brief, so she asked Mr. Kendall if she could search him and the car. Mr. Kendall responded that she could search him, but she could not search the car. Det. Williamson then called for a male officer to conduct the search of Mr. Kendall’s person in accordance with department policy. On cross-examination, Det. Williamson testified that she could not remember if she ever asked Mr. Kendall about the gun. Det. Williamson also affirmed that she was trying to determine why Mr. Kendall was present in a vehicle that was owned by someone whose name he did not know. Perhaps the only marijuana ‘inside’ Mr. Kendall was not just underneath his fingernails.
Bryan Police Officer John Rathke conducted the search of Mr. Kendall’s person. Officer Rathke found a pair of tweezers in Mr. Kendall’s pocket, which Det. Williamson testified are often used to hold a marijuana joint so that the user does not burn his or her fingers. Officer Rathke also looked through the window of the Chevy Lumina and observed what looked like a burnt marijuana cigarette on the center of the floor in the front of the car.
At that point, Det. Williamson determined that she had probable cause to search the Lumina based on the smell of marijuana, the tweezers, the burnt marijuana cigarette, and Mr. Kendall’s inability to explain who owned the vehicle. During the search, Det. Williamson discovered a digital scale and little plastic zip lock baggies on the passenger seat. The trunk was accessible from the inside of the car, and there was a box that had mail with Mr. Kendall’s name on it. In a sequence of inexplainable oddities a box with HIS name on it was nestled in the trunk. Behind the driver’s seat was a black coat that had in one of its pockets a plastic baggie with a white powdery substance. The white powdery substance tested positive for methamphetamine. Hence, he was messing with Meth. Perhaps Mr. Kendall always kept his meth in a box with his name on it in case he misplaced it or for purposes of sentencing. Whatever his rationale he did not lose the box AND it was used for sentencing.
Mr. Kendall was then taken to the police station. At the station, Williams County Sheriff’s Deputy Michelle Jacob identified the black coat as belonging to Mr. Kendall because she had seen him wearing it before. Det. Williamson also eventually talked to M.M. who informed Det. Williamson that she sold the Chevy Lumina to Mr. Kendall, and he paid for it, but he did not return the license plates to her, so she never signed the title over to him.
Ten days later …
On Monday March 25, 2019, while Det. Williamson was driving, she observed Mr. Kendall driving the same Chevy Lumina that he was found in ten days earlier. As their cars passed each other in opposite directions, Det. Williamson observed Mr. Kendall duck down to try to hide from her. Det. Williamson testified that to her knowledge, Mr. Kendall driver’s license was still suspended. Det. Williamson then turned her car around in a parking lot, and by the time she got back onto the road and flipped on her lights, Mr. Kendall was pulling into the driveway at 612 North Walnut Street. Mr. Kendall then jumped out of the car and took off running – this act of headlong flight diminished any attempt to duck down and hide his identify minutes earlier. Det. Williamson initially attempted to pursue Mr. Kendall, but she did not know where he went, so she elected to stay with the Chevy Lumina, which had the engine running.
This is the driveway at 612 North Walnut Street, Bryan, Ohio where Andy Kendall fled out of his well known Chevy Lumina. He would later argue that since the car was legally parked in a driveway of a person unknown to him, law enforcement could not impound the Lumina. The Sixth District Court called this argument ‘absurd’.
After other officers arrived to search for Mr. Kendall, Det. Williamson began to search the Chevy Lumina as an inventory search because the car was going to be towed. As justification for towing the vehicle, Det. Williamson stated that Mr. Kendall was driving on a suspended license, and that Mr. Kendall owned the car but it was registered in someone else’s name with someone else’s license plates. Det. Williamson stated that it is the police department’s policy to seize and tow the vehicle when the owner is driving it under a suspended license.
Inside the vehicle, Det. Williamson discovered a backpack on the front passenger floor board that had a metal container with a white powdery substance that tested positive for methamphetamine. His second time in ten days Mr. Kendall was messing with Meth. In addition, the car contained a cell phone, a jar with marijuana leaves, a cap for a syringe, a shirt with a used syringe, baggies, scales, and knives. The car was loaded with more contraband than a police academy training scenario.
Six Weeks Later …
On Friday May 3, 2019 Williams County Deputy Sheriff Matthew Zook arrested Mr. Kendall pursuant to an arrest warrant. During the arrest, Dep. Zook conducted a search of Mr. Kendall, and recovered Mr. Kendall’s wallet. Inside the wallet was $835 arranged with multiple bills folded into increments of $100. Dep. Zook testified that in his experience, this method of sorting money was consistent with drug trafficking. Dep. Zook asked Mr. Kendall if he had anything else on him that he was not supposed to have, and Mr. Kendall replied that he did not. This exchange is foreshadowing that Mr. Kendall was lying.
Dep. Zook then transported Mr. Kendall to the Corrections Center of Northwest Ohio, where the intake officer conducted a more thorough search. Dep. Zook was present when the intake officer discovered a small plastic baggie in Mr. Kendall’s back pocket, which contained a substance later determined to be approximately .24 grams of methamphetamine. This would be the last time for a loooong time that Mr. Kendall was messing with Meth.
Zachary Reasor, a corrections officer with the Corrections Center of Northwest Ohio, was the person who conducted the intake search of Mr. Kendall . Prior to searching Mr. Kendall, CO Reasor asked Mr. Kendall if he had anything in his pockets. Mr. Kendall replied that he did have something, and emptied his pockets. CO Reasor did not recall what Mr. Kendall took out of his pockets. After that, CO Reasor conducted a search of Mr. Kendall and discovered the small plastic bag containing methamphetamine in Mr. Kendall left, rear pocket.
Mr. Kendall was indicted for three counts of Aggravated Possession of drugs, one count of Aggravated Trafficking in Drugs and one count of Illegal Conveyance into a Detention Facility. Mr. Kendall filed a Motion to Suppress which the trial court denied. Thereafter Mr. Kendall went to trial on counts and was found guilty on all counts. He filed an appeal to the Sixth District Appellate Court which denied each of his appeals but for one that focused on the cost of his court appointed attorney and court courts which will not be evaluated in this article. Each of his appeals that focused on the actions of law enforcement was denied. Mr. Kendall was sentenced to eleven to fourteen- and one-half years in prison, which was upheld.
Information for this article was obtained from State v. Kendall, 2021 – Ohio – 1551. This case was issued by the Sixth District Ohio Appellate Court and is binding in Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood Counties.
Lessons Learned:
- On March 15, 2019 when Det. Williamson found Mr. Kendall slumped over the wheel passed out, the Sixth District Appellate Court concluded that it was a lawful encounter under the Community Caretaking Doctrine. See Killing, Bad Driving and a Caring Deputy Lead to a New Legal Doctrine.
- Kendall also argued that on March 15, 2019 Det. Williamson was on a Fourth Amendment fishing expedition when she detained Mr. Kendall. The Sixth District Court disagreed and held Mr. Kendall provided more than enough evidence that he was chock full of probable cause; “[D]uring the initial well-being check, Williamson encountered a scenario where appellant, an unlicensed driver, was asleep behind the steering wheel of a vehicle in the middle of the day. Appellant smelled of raw marijuana, and had what appeared to be green plant material on his fingers. Although appellant was fairly quickly determined to be sober, in this case, unlike Correa, Williamson’s investigation into who owned the vehicle in which appellant was asleep was within the scope of the initial well-being check. From this investigation, Williamson learned that the vehicle was not titled in appellant’s name, nor were the plates registered to him, and the vehicle was parked in front of the residence of someone who also was not the titled owner of the vehicle. Furthermore, neither appellant nor the resident could remember the name of the owner, and gave conflicting statements as to where the owner was. From these facts, we hold that Williamson had reasonable suspicion to believe that appellant had been or was about to be engaged in criminal activity sufficient to justify appellant’s continued detention … Once a law enforcement officer has probable cause to believe that a vehicle contains contraband, he or she may search a validly stopped motor vehicle based upon the well-established automobile exception to the warrant requirement.” State v. Moore, 90 Ohio St.3d 47, 51, (2000). Notice how the court raised the legal threshold from Reasonable Suspicion to Probable Cause with each additional piece of information and evidence. If you recall the Criminal Justice Triangle I provide in class you can see how the court uses this concept in practical application. For more on impounding vehicles see Do Officers Have a Legal Duty to Explain the Inventory Policy to a Fetanyl Dealer [or anyone else] while in the Middle of an Intersection at a Crash Scene?
- Kendall filed a motion to suppress the methamphetamine, scales and other drug paraphernalia out of the impoundment of his vehicle when he fled on foot. The Sixth District Appellate Court held “Appellant argues that the impoundment of the vehicle was unnecessary because the vehicle was parked in a private driveway, and Williamson knew to whom the car was titled, and she could have contacted that person to come and retrieve the car. Appellant also argues that Williamson failed to cite any specific department policy, statute, or ordinance that would have justified the vehicle’s impoundment. Setting aside the absurdity of appellant’s argument that Williamson should have left a running vehicle, which was abandoned by a fleeing suspect, parked in the driveway of an unrelated third party until the titled owner could be contacted and made to come retrieve the vehicle … Here, when appellant fled the vehicle, he abandoned it, and the vehicle came into the possession of Williamson. Therefore, we hold that the vehicle was lawfully impounded, and the inventory search was reasonable as an exception to the constitutional prohibition on warrantless searches.”.
- Kendall lastly argued that the officers who brought him to jail were responsible for HIS illegal conveyance into the jail. Here is how the Sixth District Appellate Court upheld his conviction for Illegal Conveyance “[W]e find that it is reasonable to infer that because appellant physically possessed the methamphetamine, he was aware that he possessed the methamphetamine. Moreover, in this case, we do not have any contrary testimony from appellant that he forgot about the drugs. Instead, appellant’s only comments on the matter came during his initial appearance when he blamed the police for forcing him to bring the drugs to CCNO because they did not find the drugs during the initial pat down.”.
- Officers Williamson, Officer Rathke, Deputy Jacob, Deputy Zook and Corrections Officer Reasor were all outstanding in each of their respective roles. Each law enforcement professional worked in concert with each other and the Fourth Amendment to assure Mr. Kendall’s rights were not violated which ultimately led to his conviction being upheld along with his eleven to fourteen-year sentence. This case is nothing short of a Fourth Amendment law enforcement symphony. Well done!
Does your agency train on Probable Cause?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!