The inventory search conducted in this case was not unreasonable within the meaning of the Fourth Amendment because it was performed pursuant to standard police practice, and the evidence did not demonstrate that the procedure involved was merely a pretext for an evidentiary search of the impounded vehicle.

 

State v. Nixon

2023 – Ohio – 3457

Ninth District Appellate Court

Summit County, Ohio

September 27, 2024

 

Mr. Nixon Fails to Signal then Pulls Away from the Traffic Stop

According to the testimony of one of the arresting officers, he and his partner observed a vehicle with heavily tinted windows fail to use a turn signal while executing a turn. The unidentified Akron Police Officer testified that the officers attempted to initiate a traffic stop by activating the police cruiser’s sirens and overhead lights. When the vehicle came to a stop at a stop sign, the officer exited the police cruiser and started to walk toward the vehicle. According to the officer, the driver of the vehicle then yelled out of the driver’s side window that he was not going to stop. The driver then pulled away from the stop sign and continued to drive through a residential neighborhood at a relatively low rate of speed. The officer quickly returned to the police cruiser and the officers followed the vehicle for about thirty seconds until the vehicle pulled into a driveway. The officers then exited the police cruiser, approached the vehicle, and arrested the driver: Mr. Charles Nixon.

Mr. Nixon is Arrested for a Suspended License

The officers confirmed through their in-cruiser LEADS data terminal and through a radio call to the LEADS operator that Mr. Nixon was not the owner of the vehicle, and that Mr. Nixon had a suspended driver’s license. After the officers arrested Mr. Nixon and secured him in the back seat of the police cruiser, the officers conducted a tow inventory search of the vehicle pursuant to the APD’s “Vehicle Impoundment and Inventory Procedure” policy (“Inventory Policy”). The trial court admitted the Inventory Policy as an exhibit during the suppression hearing. The Inventory Policy provides, in relevant part, that officers should tow a vehicle if the driver has a suspended driver’s license. The Inventory Policy also provides that the officers must conduct an inventory for all impounded vehicles and complete a “Tow Report”

Indicted

A grand jury indicted Mr. Nixon on charges for improperly handling a firearm in a motor vehicle (with a forfeiture specification) and failure to comply with an order or signal of a police officer. The charges stemmed from a traffic stop wherein officers from the Akron Police Department (“APD”) arrested Mr. Nixon and located a loaded firearm under the driver’s seat of the vehicle Mr. Nixon was driving.

Plead Not Guilty and a Suppression Hearing

Mr. Nixon pleaded not guilty and moved to suppress the evidence obtained during the traffic stop. In his motion to suppress, Mr. Nixon argued that the officers lacked reasonable suspicion to initiate a traffic stop and that the officers lacked probable cause to arrest him. The matter proceeded to a suppression hearing wherein the following testimony was adduced.

How Long Does an Officer Have to Call for a Tow Truck?

Was a Clerical Error De-Minimis or a Fourth Amendment Violation?

The officer testified that the officers conducted the inventory search in compliance with the APD’s Inventory Policy. During the course of the search, the officers located a loaded firearm under the driver’s seat of the vehicle. The officer acknowledged that the firearm was not subsequently noted on the Tow Report but testified that it was documented in three places: the police report, the supplemental report, and the evidence report. The officer testified that this documentation satisfied the APD’s policies. The officer also acknowledged that he did not call for a tow truck until after the search occurred. He testified, however, that there is no specific timeframe regarding when officers are required to call for a tow truck.

Mr. Nixon Testifies He Left the Traffic Stop for Officer Safety

Mr. Nixon testified on his own behalf. According to him, he continued driving the vehicle after the police attempted to conduct the initial traffic stop because he wanted to stop in a well-lit location, which was his driveway a few blocks away. Mr. Nixon also testified that his driver’s license was not suspended at the time of the incident. 

Motion to Suppress is Denied

After the suppression hearing, the trial court denied Mr. Nixon’s motion to suppress. In doing so, the trial court concluded that the officers had reasonable suspicion to initiate a traffic stop. In support of this conclusion, the trial court cited the fact that the officer testified that he and his partner observed the vehicle Mr. Nixon’s was driving turn without signaling, and then continued driving after the officers activated their sirens and overhead lights. The trial court also concluded that the tow inventory search was permissible and valid because the officers conducted it after properly impounding the vehicle and arresting Mr. Nixon.

Mr. Nixon Plead No Contest

After the trial court’s ruling on his motion to suppress, Mr. Nixon pleaded no contest. The trial court then found Mr. Nixon guilty of the charged offenses and sentenced him to community control. Mr. Nixon now appeals, assigning as error that the trial court erred by denying his motion to suppress.

Appeal

Vehicle Inventory Established Case Law

As the Ohio Supreme Court has acknowledged, “[T]he inventory-search exception is a well-defined exception to the Fourth Amendment’s warrant requirement.” State v. Banks- Harvey, 2018-Ohio-201, citing Illinois v. Lafayette, 462 U.S. 640, 643 (1983). “[A] routine inventory search of a lawfully impounded vehicle is not unreasonable within the meaning of the Fourth Amendment when performed pursuant to standard police practice and 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, 2007- Ohio-1103, citing South Dakota v. Opperman, 428 U.S. 364 (1976).

“This Court has rejected a challenge to the impoundment of a vehicle when there was no evidence of a pretextual motive and the impoundment was conducted pursuant to standard police procedure.” Neal at ¶ 7. As this Court has explained:

When a vehicle is lawfully impounded, the validity of the inventory search then must be examined. “The justification for inventory searches stems from three administrative caretaking functions: (1) protecting an individual’s property while it is in police custody; (2) protecting the police from claims of lost, stolen, or vandalized property; and (3) protecting the police from danger.” … “[I]nventories pursuant to standard police procedures are reasonable.” … Furthermore, a police department need not have a written policy or practice for inventorying a vehicle. * * * It is sufficient that some “established routine” exists, and the State can produce evidence of it through testimony.

State v. Neal, 2012-Ohio-2609.

Mr. Nixon Argues that the Vehicle Inventory was Pre-Textual

On appeal, Mr. Nixon has not argued that the officers lacked reasonable suspicion to initiate a traffic stop, or that they lacked probable cause to arrest him. Instead, Mr. Nixon argues that the tow inventory search was pretextual and, therefore, unreasonable under the Fourth Amendment. In support of his argument, Mr. Nixon points to the fact that the Tow Report did not list the firearm, which was required under the APD’s Inventory Policy. Mr. Nixon also points to the fact that the officers did not call for a tow truck until after they conducted the search. Mr. Nixon further points to the fact that the underlying incident involved him driving for a short period of time and parking in his own driveway. Mr. Nixon concludes that there was no legitimate need to tow the vehicle, and that the officers’ reliance upon a tow inventory search was a pretext for conducting an illegal, warrantless search.

Akron Police Followed Established Vehicle Inventory Policy

[T]he officer testified that Mr. Nixon’s license was suspended. Thus, under the APD’s Inventory Policy, the officers were permitted to tow the vehicle and were required to conduct an inventory search. While the firearm was not listed on the Tow Report, the officer testified that it was documented on the police report, the supplemental report, and the evidence report. According to the officer, this satisfied the APD’s policies. Additionally, the officer testified that there is no specific timeframe regarding when officers are required to call for a tow truck.

Ninth District Holds the Vehicle Inventory was Lawful

Having reviewed the record, this Court concludes that the trial court did not err when it denied Mr. Nixon’s motion to suppress. The inventory search conducted in this case was not unreasonable within the meaning of the Fourth Amendment because it was performed pursuant to standard police practice, and the evidence did not demonstrate that the procedure involved was merely a pretext for an evidentiary search of the impounded vehicle.

Mr. Nixon’s sole assignment of error is overruled.

Judge Donna Carr Dissents Based on How the Vehicle Inventory was Conducted

I respectfully dissent as I would conclude that the trial court erred in denying Nixon’s motion to suppress because the evidence presented at the suppression hearing indicated that the purported need to inventory the vehicle driven by Nixon was merely a pretext in order to justify a more invasive probe for contraband.

A suppression challenge to the legitimacy of an inventory search will turn on whether there was evidence of a pretextual motive on the part of police and, further, whether the impoundment of the vehicle was conducted pursuant to standard police procedure. See State v. Neal, 9th Dist. Summit No. 25937, 2012-Ohio-2609, ¶ 7. The officer who testified at the suppression hearing indicated that the “administrative side” of the arrest involved conducting an inventory search of the vehicle Nixon was driving. The officer suggested that the search was conducted pursuant to the Akron Police Department’s Inventory Policy with the aim producing a tow report.

Judge Carr Opines the Lack of Clipboards and Notepads Establishes a Fourth Amendment Violation

As noted by the majority, the firearm recovered from the vehicle was never included in the tow report. Perhaps more troubling, a review of the body camera footage admitted at the suppression hearing suggests that the scope of the search went well beyond merely conducting an inventory of the vehicle. Almost immediately after placing Nixon in the cruiser, four police officers began searching the vehicle. None of the officers had clipboards or notepads to record the items that were subject to the inventory. Before long, a different officer opened the trunk of the vehicle and immediately pulled up the carpet to search for items that might be concealed. During the course of the search, the officers appeared to disregard items that would typically be subject to inventory while they searched for other items. Under these circumstances, I would conclude that the strong evidence of a pretextual motive invalidated the legality of the inventory search.

Information for this article was obtained from State v. Nixon, 2023 – Ohio – 3457.

State v. Nixon, 2023 – Ohio – 3457 was issued on September 27, 2023 by the Ninth District Appellate Court and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.

Lessons Learned:

  1. Vehicle Inventory – Officers should always follow the inventory policy established by the law enforcement agency. In this case, the unidentified Akron Police Officers did follow their inventory policy and that was a significant reason Mr. Nixon’s conviction was upheld.
  2. Clerical Error or Fourth Amendment Violation? The officer who completed the inventory sheet titled the Tow Report, failed to list the firearm. Nixon’s defense team used this omission as a factor to allege the officers conducted the inventory as a pre-text to another crime.  Though the firearm omission on the Tow Report was a clerical error, the officers listed the firearm in three other reports: “[T]he police report, the supplemental report, and the evidence report.”. Consequently, two of the three judges applied common sense and dismissed the clerical error as just that and not a Fourth Amendment violation. There is SO much paperwork that must completed with each arrest that a single omission should not routinely rise to a Fourth Amendment violation.
  3. What is a Pre-Textual Inventory? Most commonly this occurs when an officer conducts a pre-impound inventory of a vehicle, finds no contraband and then decides to release the vehicle to the owner or driver.  Nixon and Judge Donna Carr believed that the inventory was Pre-Textual.
  4. Clipboards and Notepads – Judge Donna Carr was troubled that multiple officers simultaneously conducted the inventory in concert and that none of the officers possessed a clipboard or notepad. Specifically, Judge Carr opined “Almost immediately after placing Nixon in the cruiser, four police officers began searching the vehicle. None of the officers had clipboards or notepads to record the items that were subject to the inventory. Before long, a different officer opened the trunk of the vehicle and immediately pulled up the carpet to search for items that might be concealed. During the course of the search, the officers appeared to disregard items that would typically be subject to inventory while they searched for other items. Under these circumstances, I would conclude that the strong evidence of a pretextual motive invalidated the legality of the inventory search.”.  The manner in which law enforcement chooses to conduct a lawful impound should not be a Fourth Amendment violation. Otherwise, we will go from sliding down the slippery slope to gleefully sliding down it.  Should the officers hold the clipboard in their right or left hand?  Can officer have his notepad in his pocket, or must the notepad be brandished for body camera so the appellate court can utilize the Plain View Doctrine?
  5. Judge Donna Carr – This is not Judge Carr’s first time highlighted on Objectively Reasonable. On July 23, 2023 she dissented in State v. Holler, 2023 – Ohio – 2528.  In that case she believed that officer safety should be an additional factor to remove a driver from a vehicle.  See Is Officer Safety and Element to Remove a Driver from a Lawfully Stopped Vehicle?.  The two other judges Holler case followed established case from the U.S. Supreme Court and determined that removing Mr. Holler from his vehicle comported to Pennsylvania v. Mimms, 434 U.S. 106 (1977).
  6. Pre-Sent Arms! The unidentified Akron Police Officers should be highly commended for stopping Mr. Nixon and following established case law.  Well done!

Does your agency train on Vehicle Inventory?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.