Discovery of the bags of heroin in the space behind the access panel pursuant to the lawful inventory search of the vehicle provided the officers with probable cause to believe that the vehicle contained additional contraband. Accordingly, the subsequent search of the area behind the instrument panel was lawful under the automobile exception to the Fourth Amendment warrant requirement.
State v. Johnson
2022 – Ohio – 1733
Tenth District Appellate Court
Franklin County, Ohio
May 24, 2022
On September 4, 2020, at 1:26 a.m. Columbus Police Officer Kenneth Sanders observed a vehicle with only one functioning headlight traveling westbound on Sullivant Avenue. Officer Sanders ran the vehicle’s license plate through LEADS and discovered that the driver’s license of the vehicle’s registered owner was suspended. Based on that information, Officer Sanders initiated a traffic stop of the vehicle. Officer Sanders approached the vehicle, informed the driver of the reason for the stop, and asked him to produce his driver’s license. After verifying that the driver, identified as Mr. Tavaryyuan Johnson, was the registered owner of the vehicle, Officer Sanders placed Mr. Johnson under arrest for driving under suspension.
During a search of Mr. Johnson person incident to the arrest, Officer Sanders found a large sum of cash and an empty cellophane baggie in Mr. Johnson’s pocket. Officer Sanders testified that when he removed the baggie from Mr. Johnson’s pocket, Mr. Johnson said that it was an empty “bag of weed.”. Of course, this was a lie. Officer Sanders did not inquire about the contents of the baggie and could not recall if the baggie contained any marijuana residue, seeds, or stems. The cash was separated into “small bundles” consisting of “a couple hundred bucks” per bundle; when questioned by Officer Sanders, Mr. Johnson stated that he did not know how much money he had on him. Officer Sanders asked Mr. Johnson where he was employed; Mr. Johnson responded that he was a self-employed painter.
Officer Sanders cited Mr. Johnson for the headlight violation and driving while under FRA and OVI suspension and impounded Mr. Johnson’s vehicle pursuant to the impound policy of Columbus Police. That section permits the impounding of a vehicle for “any of the reasons stated in the Columbus City Code Section 2107.01.” Columbus City Code Section § 2107.01(C) authorizes law enforcement officers to impound “any vehicle from which the driver has been arrested.”.
At the suppression hearing, Officer Sanders explained that when a registered owner of a vehicle is arrested for driving under suspension, impounding the vehicle is “part of the seizure packet.” According to Officer Sanders, “[w]e always impound if we place the driver under arrest for driving with no license.” Officer Sanders outlined the process involved in inventorying an impounded vehicle pursuant to the CPD policy. To that end, Officer Sanders testified that “you go through [the vehicle’s] contents, any containers inside the vehicle that are reasonably accessible. You document it and go through its contents, see if there’s anything of value that needs to be removed, to prevent accusations of theft. That’s a primary use of our body cameras, to show that [the officers are] not destroying property or taking [property].“
The CPD policy referenced by Officer Sanders sets forth specific procedures to be followed after a vehicle is impounded. As relevant here, officers must “[c]onduct an inventory of the contents of all reasonably accessible areas and containers in the vehicle, and complete an Impounded Vehicle Inventory, form A-32.107.” (CPD policy, Section III(A)(1)(d)). Officers must also “[l]ist the inventoried property in the Property in Vehicle section of the form, and mark its disposition.” (CPD policy, Section III(A)(1)(d)(3)). In addition, officers must “[r]etrieve the following property from the vehicle for submission to the PCU: (1) Contraband[,] (2) Weapons[,] (3) More than $20 in currency bills[, and] (4) Any other property of high value or subject to theft, unless it can be secured in a locking compartment or trunk.” (CPD policy, Section III(A) (1) (e) (1-4).
At Officer Sanders’ request, Officers Robert Franklin and Jared Randall performed the inventory search of Mr. Johnson’s vehicle. Officer Franklin testified that he first checked the front passenger area, including the door, the floor, the glove compartment, and “containers in the vehicle that are accessible.” Officer Franklin’s testimony in this regard is consistent with the footage from his body camera. He also testified that he “thumbed through the pages” of the vehicle manual located in the glove box because he “didn’t want to be responsible for missing cash or anything like that.” After Officer Randall told Officer Franklin he had discovered a “ton more cash” on the driver’s side of the vehicle, Officer Franklin began searching the center console. In doing so, he noticed that an access panel located on the lower portion of the passenger side of the center console was “sitting ajar,” in that “[t]he bottom of it was not fully in place.” Upon closer inspection, Officer Franklin noted that the area around the access panel was covered in grime; however, the edge of the panel appeared to be lighter in color, “like it had been opened and closed.” Officer Franklin testified that he normally does not inspect access panels during an inventory search; however, he did so in this case because it “was sitting open” and appeared to have been “manipulated” and “used as a container frequently.“
Officer Franklin touched the access panel with his finger “for the purpose of trying to open it“; however, he did not “manipulate” or “grab” it. When he touched the access panel, it “fell off.” Officer Franklin surmised that the access panel detached so easily because the latch had been “[worn] down” from “multiple” usage. OfficerFranklin acknowledged that the footage from his body camera does not show precisely how he touched the access panel or how readily it detached. Rather, the footage only depicts the access panel as originally attached, as it later lay on the passenger area floor, and the exposed opening following detachment.
Officer Franklin assumed the access panel was designed for maintenance purposes. After the access panel detached, he illuminated the opening with his flashlight. He did not observe anything inside the opening that he thought might be illegal contraband; rather, he observed “a metal piece kind of across the top right corner of that panel and a large opening underneath.” He then reached inside the opening, “patted around,” and discovered what he believed from his training and experience to be a bag of heroin. He recovered a second bag of heroin a few seconds later. Following discovery of the heroin, Officer Franklin remarked to Officer Randall, “Finally, one of the good hiding places.” At the hearing, Officer Franklin explained this statement to mean that when conducting an inventory search he imagines where he would hide contraband; however, until the discovery in the instant case, what he imagined to be good hiding places had never been utilized. When he put his hand in the opening, he was “not really expecting to find anything,” which made the discovery “even more surprising for me.”. Officer Franklin placed the bags of heroin on the dashboard and notified Officer Sanders of the discovery. Officer Sanders took photographs of the inside of the vehicle, including the bags of heroin on the dashboard. Due to the large volume of drugs recovered, Officer Sanders sought, and ultimately obtained, authorization from the narcotics bureau to continue the search. Thereafter, Officer Franklin and Officer Randall noticed that the instrument panel surrounding the radio and heating/cooling controls appeared to be loose, “like it had been removed and put back into place.” Officer Randall removed the instrument panel and found another bag of narcotics “behind the plastic surrounding the heater unit.”. Officer Franklin testified that he relied on the CPD policy to support his decision to reach inside the access panel after it detached
Mr. Johnson was charged and indicted with O.R.C. § 2925.11 Possession of Heroin F-1, O.R.C. § 2925.11 Possession of Cocaine F-1 and O.R.C. § 2923.241 Designing a Vehicle with a Hidden Compartment to Transport a Controlled Substance F-2. Each of the drug possession charges was accompanied by a major drug offender specification and a forfeiture specification. Mr. Johnson filed a Motion to Suppress based on the officer’s actions. He specifically claimed that the search of the hidden compartment went beyond the scope of an impound and the CPD impound policy.
The trial court suppressed all of the drugs as it held “So the Court concludes that there was not probable cause for the search. The Court does not find an exception based on an inventory search. The Court finds no other exceptions and generally the rule is you have to have a warrant. Vehicles are excepted out because they are easily moved.
But you can’t just search a vehicle when you pull a vehicle over. It either has to be based on probable cause, or if you see furtive movements. If somebody looks like they are tucking a potential weapon, you are allowed to conduct a sweep of the car to make sure there’s no weapons. That didn’t happen here. None of that conduct occurred. And I’ve gone through, I think, pretty clearly … why I don’t believe this was a valid inventory search. So based upon all that the Court does find, the search was in violation of the 4th Amendment. And I order all the drugs suppressed as a result of the search. I believe that should be sufficient for findings of fact and conclusions of law.”.
Holding
The prosecutor’s office appealed this decision, and the Tenth District Appellate Court overturned the trial court as it held “Discovery of the bags of heroin in the space behind the access panel pursuant to the lawful inventory search of the vehicle provided the officers with probable cause to believe that the vehicle contained additional contraband. Accordingly, the subsequent search of the area behind the instrument panel was lawful under the automobile exception to the Fourth Amendment warrant requirement.”.
Lessons Learned:
- The court provided the following analysis as to decided that the inventory by Officer Franklin was objectively reasonable because he followed the Columbus Police inventory policy; “An inventory search conducted pursuant to standard police policy is lawful “when the evidence does not demonstrate that the procedure involved is merely a pretext for an evidentiary search of the impounded vehicle.”” Blue Ash v. Kavanagh, 113 Ohio St.3d 67, (2007).
- One of the arguments made by Mr. Johnson’s defense team was that Officer Franklin used too much discretion. The Tenth District Appellate eviscerated that analysis when it opined “Inventory search policies may provide officers discretion in deciding which areas to search during an inventory. Florida v. Wells, 495 U.S. 1, 4 (1990) (“The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.”).
- The Tenth District Court put an end to the claim that Officer Franklin exceeded the scope of an inventory because he looked beyond that of the normal areas within a vehicle as the majority stated “Here, just because it appears the space behind the access panel was not designed for storage does not mean it was not used for storage. In fact, the evidence indicates the area was used for storage. … The latch that would normally hold the access panel in place was no longer functional, as evidenced by the easy detachment of the access panel upon the touch of Franklin’s finger. Given these circumstances, Franklin reasonably could conclude that the area behind the access panel was being used as a storage area. Further, an inventory search is not pretextual simply because an officer expects or hopes to find contraband. “[T]he fact that an officer suspects that contraband may be found does not defeat an otherwise proper inventory search.” Lumpkin, 159 F.3d 983, 987 (6th Cir.1998) … Here, it is undisputed that pursuant to CPD’s policy, appellee’s vehicle was lawfully impounded following his arrest for driving under suspension and was thus subject to an inventory search of all “reasonably accessible areas.” While the officers could also have had an investigative motivation to search appellee’s vehicle, such motivation did not disqualify the legitimate inventory search performed under the CPD’s reasonable standardized policy.”.
- All the Columbus Police Officers involved in this arrest – Officer Kenneth Sanders, Officers Robert Franklin and Officer Jared Randall should be highly commended. The officers not only knew what the inventory policy stated but applied it in an objectively reasonable manner. Unfortunately, the trial judge did not believe that a hidden compartment was reasonable accessible. Of course, drug salesmen, street officers AND the Tenth District Appellate Court knew that hidden compartment was reasonably accessible. Why? Because if the hidden compartment was not reasonably accessible, it would make drug sales sluggish.
Does your agency train on Impounding Vehicles?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!