Petition — Robinson v. Ohio

Supreme Court, Ug

FILED

SEP 14 1979

|

MICHAL ROBAK, JR., BLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

¥9-431

RANDOLPH ROBINSON,

Petitioner,

VS.

STATE OF OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

ALLEN BROWN

MARK ECKERSON

CANDACE McCOY

Barrister House, Fifth Level

216 East Ninth Street

Cincinnati, Ohio 45202

(513-621-6151)

Attorneys for Petitioner

_ nner

SS SS

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

eo le

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

TABLE OF CONTENTS

CONSTITUTIONAL PROVISIONS

INVOLVED

REASONS FOR GRANTING THE WRIT

I.

II.

Following a traffic arrest, do the Fourth and

Fourteenth Amendments require inquiry

into the reasonable necessity of impounding

the parked automobile that is in the posses-

sion of the detainee at the place of the arrest? | .

Before conducting an inventory search of

impounded property, is a police officer re-

quired by the Fourth and Fourteenth

Amendments to follow a “reasonableness” or

“totality of the circumstances” test for de-

termining whether:

A. Impoundment is necessary or reasonable,

and

B. A search is necessary in order to meet

the rationales underlying the inventory

search exception to the warrant require-

ES

er eee. SS Sw ew €C ee 6 6 ee ke eke kl kl

ITI.

IV.

CONCLUSION

Il.

Does the owner of an automobile have a

reasonable expectation of privacy in closed

containers secured within the vehicle’s locked

trunk, sufficient to establish the supremacy

of his property rights over the caretaking

procedures of law enforcement personnel? __.

Does the physically present owner of an

impounded automobile have the right to:

A. Participate or be consulted in the de-

cision whether impoundment is reason-

able or

B. Waive the protection offered him by

police procedures ostensibly designed to

safeguard his property? ..............

APPENDIX:

A.

B.

Opinion of the Supreme Court of Ohio

Opinion of the Court of Appeals for the

First Appellate District of Ohio, Hamilton

MI iiss? 5 aeallles of ety cdi esd, .

Judgment entry, Hamilton County Court of

Gennes Gree = IE ee ya

Page

16

~ + an ~ereens

Ill.

TABLE OF AUTHORITIES

Page

Adams v. Williams, 407 U.S. 143 (1972) .......... 10

Altman v. State, 335 S. 2d 626 (Fla. App. 1976) .. 12, 18

Arkansas v. Sanders, 99 S. Ct. 2586 (1979) .......... 17

Cady v. Dombrowski, 413 U.S. 433 (1973) .. 10, 11, 14

Carroll v. United States, 267 U.S. 132 (1925) ...... 13

Chambers v. Maroney, 399 U.S. 42 (1970) ...... 13, 16

City of Danville v. Dawson, 528 S.W. 2d 687 (Ky.

I has os A ARs Se Res See 8 12

Coolidge v. New Hamshire, 403 U.S. 443 (1971) ... 14

Cooper v. California, 386 U.S. 58 (1967) .......... 15

Dyke v. Taylor Implement Manufacturing Co., 391

PU ES 5 sek we wg ues eke s views deus 15

Faretta v. California, 422 U.S. 806 (1976) .......... 19

Gustafson v. Florida, 414 U.S. 260 (1973) .......... 9

em v. U.S, 360 US. 047 (1087) .............. 16

Ohio v. Robinson, 58 Ohio St. 2d 478, 391 N.E.

Se ee I oi a ct ve oun oa peas os 8

People v. Counterman, 556 P. 2d 481 (Colo. 1976) .. 17

Robinson v. U. S., 414 U.S. 218 (1973) ............ 9

South Dakota v. Opperman, 428 U.S. 364

SN Pics em ee 7, 8, 10, 11, 14, 18, 19, 20

State v. Bradshaw, 322 N.E. 2d 311 (Ohio C.A.

Ne KO na Paw ka 5 GR NEN se oe es 17

State v. Goodrich, 256 N.W. 2d 506, 62 Minn.

ie Ge 2.8 Uke ee eee

State v. Rome, 354 S. 2d 504 (1978) ............

State v. Stockbower, 397 A. 2d 1050, 79 NJ. |

(R00) ope ee ee

Terry v. Ohio, 392 U.S. 1 (1968) ...............

U. S. v. Chadwick, 433 U.S. 1 (1977) ............

U. S. v. Grill, 484 F. 2d 990 (1973) ..............

Virgil v. Superior Court, 268 Cal. App. 2d 127

reese fet fe

Winberly v. Superior Court, 547 P. 2d 417 (Cal.

i. Meee

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

RANDOLPH ROBINSON,

Petitioner,

vs.

STATE OF OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Petitioner prays that a Writ of Certiorari issue to review

the judgment of the Supreme Court of Ohio, which was

entered in this case on June 27, 1979, reversing the judg-

ment of the Court of Appeals for the First Appellate Dis-

trict of Ohio, which had upheld petitioner’s motion to

suppress evidence gained from a search of a closed non-

transparent bag located in the locked trunk of petitioner's

automobile, on the grounds that inventory searches of

impounded vehicles violate the Fourth and Fourteenth

Amendments of the Constitution of the United States if

they go beyond actions reasonably undertaken to determine

the need of impoundment and to safeguard impounded

property.

2

OPINIONS BELOW

The June 27, 1979 opinion of the Supreme Court of

Ohio, for which review is sought, is reported at 58 Ohio

St. 2d 478, 391 N.E. 2d 317 (1979) and printed here as

Appendix A. The opinion of the Court of Appeals for

the First Appellate District of Ohio, Hamilton County, is

unreported and printed here as Appendix B. The judg-

ment entry of the Hamilton County Court of Common

Pleas is printed here as Appendix C.

JURISDICTION

On June 7, 1977, a motion to suppress the evidence

obtained from the “inventory” search of petitioner’s auto-

mobile was overruled by the Hamilton County Court of

Common Pleas. Petitioner subsequently entered a plea

of no contest to the charge of possession of marijuana.

The Court made a finding of guilt, and from that con-

viction petitioner appealed, alleging error in failing to

grant the motion to suppress. On July 26, 1978, the

Court of Appeals reversed the judgment of the trial court.

Respondent State of Ohio appealed this decision to the

Supreme Court of Ohio. On June 27, 1979 that Court

reversed the Court of Appeals ruling, issuing a blanket

statement that inventory searches are an exception to the

warrant rule and making no comment on the specific

issues of 4th and 14th Amendments as to the act of im-

poundment and the method, depth and manner of the

so-called “inventory search” herein, although such issues

were briefed and argued before it by both parties. Notice

of appeal to this Court was given on July 20, 1979. Review

of that decision by this Court is sought under the jurisdic-

tion invoked by 28 U.S.C. § 1257 (3) .

II.

III.

IV.

QUESTIONS PRESENTED

Following a traffic arrest, do the Fourth and Four-

tenth Amendments require inquiry into the reason-

able necessity of impounding the parked automobile

that is in the possession of the detainee at the place

of the arrest?

Before conducting an inventory search of impounded

property, is a police officer required by the Fourth

and Fourteenth Amendments to follow a “‘reason-

ableness’’ or “totality of the circumstances” test for

determining whether (a) impoundment is necessary

or reasonable and (b) the search is necessary, in

order to meet the rationales underlying the inven-

tory search exception to the warrant requirement?

Does the owner of an automobile have a reasonable

expectation of privacy in closed containers secured

within the vehicle’s locked trunk, sufficient to estab-

lish the supremacy of his property rights over the

caretaking procedures of law enforcement personnel?

Does the physically present owner of an impounded :

automobile have the right to (a) participate or be ~

consulted in the decision whether impoundment “s

reasonable or necessary and (b) waive the protgction

offered him by police procedures ostensibly designed

to safeguard his property? Ps

4

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fourth Amendment to the Con-

stutution of the United States, which provides that:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

. Because a challenge to the validity of State police prac-

tices is presented, this case also involves Section 1 of the

Fourteenth Amendment to the Constitution of the United

States. That section reads as follows:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT OF THE CASE

On February 9, 1977, City of Greenhills Police Officer,

Donald Yost stopped the petitioner, Randolph Robinson,

on Winton Road, Hamilton County, Ohio, about a mile

from the drivers home, for the purpose of issuing a traffic

citation for speeding. The officer took Mr. Robinson’s

driver's license and asked that he move his vehicle off the

highway to a side road, which Mr. Robinson did. The

officer called for a computer check on petitioner Robinson,

and received the reply that his driver’s license had been

suspended. Robinson was arrested for driving without a

valid license. It was later discovered that the computer

information was erroneous.

The officer determined to take Mr. Robinson to the

police station, approximately one-half mile from where the ©

car was parked. The officer also confiscated both the

ignition key and trunk key of petitioner’s car, and said

that the vehicle would be towed to a private impoundment

lot. Petitioner Robinson asked the officer to return the

keys, but the officer said they were necessary to tow the

vehicle. The officer told the petitioner nothing about the

need for an inventory search, nor about arrangements for

return of the vehicle or its keys. There was no discussion

of the possibilities of securely locking the vehicle.

The officer testified that he “had planned to impound

the car all along”, and after the Petitioner was removed

to the station house, Officer Yost remained alone and

began to prepare the car for towing. While awaiting the

arrival of the wrecker, Officer Yost, alone and unassisted

and on his own authority, proceeded to search the vehicle

pursuant to what he described as a “custodial inventory

of the vehicle.” During this procedure the lone officer

unlocked the trunk of the car and found a tool box, a

6

closed opaque white plastic bag, and several other items

which he deemed “without value”.

The officer listed the tool box on a form marked “Re-

port of Motor Vehicle Impoundment and Inventory of

Property”, and although he admitted opening the tool

box, none of its contents were listed in the report. The

officer also opened the closed plastic bag found in the

trunk. Within that bag were found additional bags, which

were later found to contain marijuana.

Robinson was indicted by the Hamilton County Grand

Jury for possession of a controlled substance, in violation

of Ohio Revised Code § 2925.03 (A) (4). He moved to

suppress the evidence obtained from the trunk of the

automobile on June 7, 1977. The motion to suppress

was overruled by the Hamilton County Court of Common

Pleas, on June 8, 1977 (Case Number B-770734) and

petitioner subsequently entered a plea of no contest to

the offense charged in the indictment.

The court found petitioner guilty as charged, and sen-

tenced him to serve 180 days in the city jail and five years

probation. From that conviction, petitioner brought an

appeal in the Court of Appeals of Ohio, First Appellate

District, Hamilton County, Ohio, (case number C-77635) ,

alleging trial court error in the denial of the petitioner’s

motion to suppress.

The Court of Appeals reversed the judgment of the trial

court on that issue. (Appendix B.) On July 26, 1978

the Court stated that the search was invalid because it

had gone beyond the Scope necessary to accomplish its

limited goals, in essence becoming a warrantless investiga-

tory search. The Court stated:

“We hold that the denomination of the search in the

the present case as an inventory search does not re-

move it from the strictures of the Fourth Amend-

ment * * *.”

7

Respondent appealed to the Supreme Court of Ohio.

That Court on June 27, 1979, reversed the judgment of

the Court of Appeals and affirmed that of the Court of

Common Pleas. That Court made no comment on the

unique facts herein, addressing itself only to the generality

of the legality of “inventory searches.”

From that judgment, petitioner filed a Notice of Inten-

tion to seek review by the Supreme Court of the United

States, and now petitions for the writ of certiorari to be

issued to the Supreme Court of Ohio.

REASONS FOR GRANTING THE WRIT

Reasonableness of police procedures in searches has been

the litmus paper by which Fourth Amendment challenges .

are tested, and this case squarely presents questions of

reasonableness in impoundment of automobiles and sub-

sequent unwitnessed and highly extended so-called inven-

tory searches. As stated by the majority in South Dakota

v. Opperman, 428 U.S. 364 at 374 (1976).

“. .. as in all Fourth Amendment cases, we are obliged

to look to all the facts and circumstances of this case

%?

The facts in Opperman, as the Court next states, were

that:

“. .. police were indisputably engaged in a caretaking

search of a lawfully impounded automobile ... The

owner . . . was not present to make other arrangements

for the safekeeping of his belongings. The inventory

itself was prompted by the presence in plain view of

a number of valuables inside the car . . . there is no

suggestion whatever that this standard procedure was

a pretext concealing an investigatory police motive

... South Dakota v. Opperman, supra at 374

8

Several state Supreme Courts have cited Opperman to

validate variety of inventory searches,* as did the Ohio

Supreme Court in petitioner’s case. Ohio v. Robinson,

58 Ohio St. 2d 478 (1979). The Ohio Court failed, how-

ever, to examine the case in light of the reasonableness

standard, and an examination of the facts in petitioner’s

case, each different from the facts of Opperman quoted

above, will underscore the necessity of requiring police

procedures to be based upon the totality of the circum-

stances both as to the impoundment itself and thereafter

as to manner and mode of the searching. The creation of

a sub-species of governmental action labeled “inventory

searches” does not cause abandonment of 4th and 14th

amendment considerations. Opperman does not preclude

careful inquiry into both the reasonableness of impound-

ment, safeguarding of property and invasion of reasonable

expectation of privacy.

As Justice Powell succinctly stated in his concurring

opinion in Opperman:

“. .. Upholding searches of this type provides no gen-

eral license for the police to examine all the contents

of such automobiles ... The absence of a warrant

will not impair the effectiveness of post-search review

of the reasonableness of a particularly inventory

search.”

Opperman, supra at 378 and 382.

The proper constitutional perimeters of impoundment

and inventory searches are at issue here. In almost every

* It is interesting to note that on remand, the South Dakota Supreme

Court expressly declined to follow the United States Supreme Court’s

validation of the Opperman inventory search, and elected instead to

afford greater protection under state law than that required by the

Opperman majority. 428 U.S. 364 State v. Opperman, 247 N.W. 2d

673 (S.D. 1976)

9

particular the given case gives an example of the dangers

of exception to warranted search being used as a self

created rationale for a curiosity search.

FOLLOWING A TRAFFIC ARREST, DO THE

FOURTH AND FOURTEENTH AMENDMENTS

REQUIRE INQUIRY INTO THE REASONABLE

NECESSITY OF IMPOUNDING THE PARKED

AUTOMOBILE THAT IS IN THE POSSESSION

OF THE DETAINEE AT THE PLACE OF AR-

REST?

Certainly, it is well-settled law that police may frisk

arrestees in an effort to protect the officer from weapons

which an arrestee may be carrying. Terry v. Ohio, 392

U.S. 1 (1968). And if an arrestee does not post bond

but instead must be jailed awaiting trial, the personal

belongings he carried at the time of the arrest will be

taken from him and cataloged. This is to satisfy proce-

dures designed to protect jail personnel, as well as to

prevent thievery or destruction of property of detainees.

But a more difficult question arises when a person is

arrested while in his car. Even more difficult is the situa-

tion where closed containers are locked out of sight within

the car. Once the arrestee is outside the automobile, his

person is searched, and he is under the control of the

police, the justification for search incident to arrest ends,

since the arrestee cannot reach for a weapon and there is

no longer a danger posed to the police. Robinson v. U.S.,

414 US. 218 (1973). Gustafson v. Florida, 414 U.S. 260

(1973). In this case, the area within the immediate con-

trol of the suspect could be said to include the driver's

area of his car, and thus that area could be searched,

10

Adams v. Williams, 407 U.S. 143, 149 (1972). But the

Court has never addressed the situation presented by this

case, where a search incident to arrest led to at best

transient impoundment and warrantless search of the

closed container in a locked trunk of petitioner’s automo-

bile, via a key arbitrarily confiscated.

The propriety of automobile inventory searches in gen-

eral was established by this Court in South Dakota v.

Opperman, supra. Opperman made clear that the auto-

mobile must legitimately come under police custody in

order for an inventory search to be conducted. Id. at 365.

It did not establish the conditions under which custody

of the vehicle could validly be undertaken, and certainly

did not even hint that impoundment itself was an absolute

authority.

This case is unlike the Opperman situation whereby an

automobile is impounded as a sort of security for the pay-

ment of debt to the city (unpaid traffic tickets) , and where

the owner of the car is not present at the time of impound-

ment. It is not similar to Cady v. Dombrowski, 413 U.S.

433 (1973), where impoundment was lawful because the

car was a public nuisance on the highway and the driver

was too intoxicated to make arrangements to have the

vehicle towed and stored. In this case, a driver stopped

for a traffic offense, and arrested for a minor misdemeanor,

was not consulted as to the impoundment of his car though

obviously other arrangements were possible and even de-

sirable. Petitioner would certainly have been able to re-

turn to his car in less than an hour, since his offense was

station house bondable and he was within walking dis-

tance of both his home and the police station. Further-

more, he could readily have arranged for family or friends

to pick up the car, which was parked by the officer’s

directions. There was no reason to believe the vehicle

1]

contained objects dangerous to the public, as in Cady,

supra. Moreover the officer made no inquiry nor entered

into discussion whatsoever with the competent and present

owner as to accomodations, if any was needed. The officer

made a preliminary and unwarranted seizure of the keys

and ignored the detainees request for their return. The

impoundment itself was unreasonable and should be over-

turned by this Court, lest we translate the Opperman

exception to warranted search to a device for bypassing

warrant requirements in any auto or luggage situation.

Other than the discussion as set out above in Opperman

and Cady, supra, this Court has not addressed the issue

of what constitutes a reasonable impoundment. Numer-

ous state Courts do however provide some guidance. In

reviewing the state court decisions in the wake of Opper-

man, a growing number of jurisdictions require a showing

of substantial police need before approving an impound-

ment. In State v. Goodrich, 256 N.W. 2d 506, 62 Minn.

1280 (1977) , the Supreme Court of Minnesota articulated

a position compatible with both the guarantees of the

Fourth Amendment and the legitimate goals of impound-

ment and inventory. Before determining whether an in-

ventory search was reasonable, the Court directed a thres-

hold inquiry to the reasonableness of the impoundment,

itself, ‘‘since that act gives rise to the need for and justifi-

cation of the inventory.” Jd. at 510 the Minnesota Court

then adopted a reasonableness standard for determining

the validity of an impoundment prior to an inventory

search:

Reasonableness is to be evaluated on considerations

relevant to Fourth Amendment interests, notion a

subjective view regarding the acceptability of certain

sorts of police conduct. A contrary approach would

create a temptation for police to use an unconnected

12

temporary predicament of a motorist as a pretext for

an investigation unauthorized by a warrant. Id. at

511

Numerous other jurisdictions have adopted a reasonable-

ness test for impoundment, (which is indeed a species of

seizure) placing the burden of establishing the reasonable-

ness on the police, taking into account whether the owner

is capable of making other arrangements for the safekeep-

ing of his vehicle; State v. Stockbower, 397 A. 2d 1050, 79

N.J. 1 (1979) ; Virgil v. Superior Court, 268 Cal. App. 2d

127 (1968) ; Altman v. State, 335 S. 2d 626 (Fla. D.C.A.

1976) ; City of Danville v. Dawson, 528 S.W. 2d 687 (Ky.

C.A. 1975) ; State v. Rome, 354 S. 2d 504 (1978) .

Certainly the impoundment was unreasonable in this

case with a police escort, petitioner could have moved the

car to the police station one-half mile away, even though

it was thought he had no valid driver’s license, and a friend

could have picked him up following his booking for driv-

ing without a license. Or he could have left the car on

a side road of the highway, parked as directed by the

officer, if he wished, and returned with a friend within

an hour or two. Instead, the mere fact of his arrest on any

charge, substantial or not, is said to justify the expense

and intrusion of property rights that impoundment repre-

sents. Certainly this cannot be the rule.

13

BEFORE CONDUCTING AN INVENTORY

SEARCH OF IMPOUNDED PROPERTY IS

A POLICE OFFICER REQUIRED BY THE

FOURTH AND FOURTEENTH AMENDMENTS

TO FOLLOW A “REASONABLENESS” OR “TO.

TALITY OF THE CIRCUMSTANCES” TEST

FOR DETERMINING WHETHER:

A. Impoundment Is Necessary Or Reasonable,

And

B. The Search Is Necessary In Order To Meet

The Rationales Underlying The Inventory

Search Exception To The Warrant Require-

ment?

Reasonableness is the standard for deciding whether to

search impounded property, as well as for deciding whether

to impound property in the first place. The question of

an inventory search is logically distinguishable from those

cases involving the “automobile exception” to the warrant

requirement. In the latter type of case, warrantless

searches of automobiles are permitted if there is probable

cause to believe the driver has placed articles in the car

which give evidence of criminal activity. Carroll v. United

States, 267 U.S. 132 (1925). The reasoning is that, due

to the inherent mobility of the car, there is no time to

get a warrant. Probable cause, is “the measure of legality”

of such a seizure. Chambers v. Maroney, 399 U.S. 42

(1970) .

But it is important to distinguish searches of automo-

biles that are conducted, not upon probable cause, but

only as an administrative function for protection of the

property. “The word ‘automobile’ is not a talisman in

whose presence the Fourth Amendment fades away and

14

disappears.” Coolidge v. New Hampshire, 403 U.S. 443

at 461 (1971).

Instead, we are concerned here with the proper bound-

aries of inventory searches. These administrative searches

are discussed in Opperman v. South Dakota, supra, and

are said to be justified “in response to three distinct

needs’’:

“The protection of the owner’s property while it re-

mains in police custody . . . the protection of the

police against claims or disputes over lost or stolen

property . . . and the protection of the police from

potential danger .. .”

Opperman, id. at 370.

That the inventory procedure itself is valid as a com-

munity caretaking function is beyond question, but Opper-

man cannot be used to validate virtually every so-called

inventory search in its entirety. Rather, each case is

judged by a reasonableness standard which balances the

intrusion necessary to accomplish the goals of the admin-

istrative cataloging versus the reasons to begin that cata-

loging at all.

In petitioner's case, there was no question of potential

danger to the police. Petitioner was stopped for a routine

speeding charge. There was no indication of possession of

weapons or the desire to hinder in any way the per-

formance of the officer’s functions. Unlike Cady v. Dom-

brokski, supra, in which an inventory search was necessary

because the police had real reason to believe there were

weapons in the trunk of the car this case presents no such

reasonable supposition. A traffic offense does not imply

that weapons or contraband may be found in the vehicle,

and thus searches to protect the police are not necessary.

15

Dyke v. Taylor Implement Manufacturing Co., 391 US.

216 (1968).

As to the questions of protection of the owner’s property

and the protection of the police from false claims over lost

property, ‘’. . . we are obliged to look to all the facts and

circumstances of this case... Whether a search and

seizure is unreasonable within the meaning of the Fourth

Amendment depends on the facts and circumstances . . .”

Opperman, supra, at 374, quoting Cooper v. California,

386 U.S. 58 at 39 (1967). In petitioner’s case, the prop-

erty was secure. The car itself could easily have been

taken to the police station for forty-five minutes, without

a substantial chance of property destruction before the

owner would be released. It is even more outrageous that

a search of the securely locked trunk be conducted in the

guise of “protecting the property of the arrestee,” particu-

larly when the officer took the separate trunk key into his

possession against the wishes of the owner. The property

was obviously well secured to begin with. F inally, snoop-

ing into closed, opaque containers within the locked trunk

does nothing to protect either the owner or the police.

Rather, it begins to give the appearance of harassment and

pretextual search.

As the Fifth Circuit noted in U. S. v. Guill, 484 F. 2d

990 at 991-992 (1973) :

“It is temptingly simplistic to employ the phrase

‘inventory’ as though uttering it solves everything, and

all too easy to state over broadly the interests which

inventory searches vindicate, and to automatically give

to those interests a primacy, which in the balance

between public and private interests, they do not

necessarily enjoy.”

16

DOES THE OWNER OF AN AUTOMOBILE

HAVE A REASONABLE EXPECTATION OF

PRIVACY IN CLOSED CONTAINERS SECURED

WITHIN THE VEHICLE’S TRUNK, SUFFI-

CIENT TO ESTABLISH THE SUPREMACY OF

HIS PROPERTY RIGHTS OVER THE CARE-

TAKING PROCEDURES OF LAW ENFORCE-

MENT PERSONNEL?

It is beyond dispute that the touchstone of Fourth

Amendment Analysis in examining searches of personal

property is whether there was a reasonable expectation of

privacy in the property on the part of the owner. Katz

v. U. S., 389 U.S. 347 (1967). The appropriate expecta-

tion of privacy depends on the type of property, the scope

of the search, and similar factors. For example, as noted

above, there is a lesser expectation of privacy in an auto-

mobile than in one’s house or office, because automobiles

are subjected to public view and their movement is reg-

ulated by the state. Chambers v. Marovey, supra. But

where personal property is locked or secured in such a

way that it ‘‘manifests an expectation that the contents

would remain free from public examination,” U. S. v.

Chadwick, 433 U.S. at 11 (1977), there is greater protec-

tion against State intrusion.

In petitioner’s case, a locked trunk was opened and

searched. Further, a closed, opaque plastic bag inside the

trunk was opened and examined. Clearly, petitioner had

a great expectation of privacy in both the trunk and the

bag. The “automobile exception” may afford reason to

search a passenger compartment, or even an unlocked

glove compartment where title and registration papers are

often kept, as in Opperman, but a trunk is an area in

which a car owner has a greater expectation of privacy.

Winberly v. Superior Court, 546 P. 2d 417 (Cal. 1976) ;

17

State v. Bradshaw, 322 N.E. 2d 311 (Ohio C.A. 1974).

The fact that a trunk is part of a car does not fit it under

Chambers-type automobile searches; rather, the fact that

it is locked personal property shows an expectation of

privacy similar to that of locked personal luggage as in

U.S. v. Chadwick, supra. This is heightened in this case

by the officer’s unilateral and unessential seizure of the

separate key to such locked automobile trunk.

As to the closed bag, clearly privacy is expected in closed

containers placed in private spaces. As long as the outward

appearance of a bag gives no indication of illegal contents,

a proper inventory search simply catalogs the existence of

the bag itself. This is true whether the bag is locked or

not. Arkansas v. Sanders, 99 S. Ct. 2586 (1979); People

v. Counterman, 556 P. 2d 481 (Colo. 1976). The rule

in such a case, if an inventory search is valid from the

start, should be to note the existence of the bag or con-

tainer in the trunk without detailing contents. The func-

tion of the inventory is therefore completed, and the pri-

vacy of the citizen is also protected.

Moreover, an expectation of privacy is manifested in this

case due to the nature of the arrest. This is not a case

where a suspect was arrested for an offense relating to

property (such as theft offenses, where stolen goods may

have been in the trunk) or an offense indicating a violent

temperament of the owner (such as armed robbery, where

weapons might be in the trunk). This was a simple

arrest under the mistaken belief that the car’s owner

was driving without a valid driver’s license. The vehicle

search could be justified not upon probable cause, but only

upon inventory search rationales. Surely in an inventory

search of private property unconnected to the offense

charged, there is a greater expectation that the privacy

rights of the citizen will be closely observed.

18

Moreover, since an intrusion into his property is being

carried out, a citizen in such a situation surely should at

least have the opportunity to consult with the police as

to the treatment of the property. On a simple license

offense such as this, a citizen expects his private property

to remain under his control to a large degree. Surely he

should be permitted to make arrangements to have the

property picked up by a friend. Altman v. State, supra.

Or he has the reasonable expectation that police intrusion

will be so minimal as possible. In a case in which the

charge for which the car owner is arrested is unrelated to

the property sought to be searched, it seems natural that

the owner retains important property rights. Thus, when

officer Yost refused to return the keys to petitioner’s car

to him, and refused to discuss alternatives to towing, he

violated petitioner’s privacy rights under the Fourth

Amendment.

Finally does not the conduct of the so called administra-

tive search have to be conducted in a manner consistent

with the rationale that gives rise to its exceptional status.

If so, can this search be deemed to be protective against

either false claim, danger, or property loss? It is con-

ducted without corroborating witnesses, not at a station

house or impoundment lot but alone on a side road during

the night, after the owner has been taken away? The man-

ner is such as to dissipate each of the rationales of Opper-

man.

19

DOES THE PHYSICALLY PRESENT OWNER

OF AN IMPOUNDED AUTOMOBILE HAVE

THE RIGHT TO:

A. Participate Or Be Consulted In The De-

cision Whether Impoundment Is Reasonable

Or,

B. Waive The Protection Offered Him By

Police Procedures Ostensibly Designed To

Safeguard His Property?

As noted above, the rationales for inventory searches

include the protection of the property of the detainee, the

protection of the police from disputes over lost property,

and protection of the police from potential danger. Op-

perman, supra at 370. It has been established that in this

traffic arrest, the police were in no danger. Our analysis

therefore turns on the question of protection.

As Opperman clearly states, this administrative proce-

dure is designed to protect the property from pilferage or

damage. It is thus intended to protect the property rights

of the citizen during the time when he has no direct control

over the property. Procedures designed to protect private

interests may be waived by the protected person, if the

waiver is knowing and intelligent. Faretta v. California,

422 U.S. 806 (1975).

In this case, after a simple consultation between the

arrestee and the police as to the impending inventory

search of the vehicle, the petitioner should have been per-

mitted the opportunity to waive either the impoundment

or the inventory of the vehicle, or both. Both procedures

were designed to protect his property and to prevent him

from claiming police misuse of the property. If he would

chose to simply retrieve the property an hour or so later,

saving the expense of towing and the intrusion into his

20

private property, he should be able to waive the protection

offered him by the caretaking procedures.

Such a waiver could be easily accomplished by a discus-

sion between the detainee and officer as to the advantages

of impoundment and inventory, and a brief spoken or

written explanation of the consequences of waiver. Such

an explanation and a waiver form itself could have been

printed on the reverse side of Officer Yost’s “Report of

Motor Vehicle Impoundment and Inventory of Property.”

The absence of such an approach suggests the use of the

inventory search in this case to be a pretext for a broad

search of the vehicle, where no other type of search could

possibly have been remotely possible under the Fourth

Amendment.

CONCLUSION

This Court in all of its concurring and dissenting de-

cisions in Opperman recognized the need for caution

against a broad-stroked self-sustained invasion of privacy

by police under the ambit of an exceptional administrative

procedure. That prescience was well placed. The reason-

ableness of both impoundment, and of nature, manner,

and extent of so-called inventory searches are all measured

by the operative facts of this case.

For the reasons stated above, certiorari should be

granted.

Respectfully submitted,

ALLEN BROWN

MARK ECKERSON

CANDACE McCOY

Barrister House, Fifth Level

216 East Ninth Street

Cincinnati, Ohio 45202

Attorneys for Petitioner

i eae aes

e -

APPENDIX A

THE STATE oF Onto, APPELLANT, v. ROBINSON, APPELLEE.

[Cite as State v. Robinson (1979), 58 Ohio St. 2d 478.]

Criminal law—Search and seizure—Inventory search of

lawfully impounded vehicle—Constitutionality.

A standard inventory search of the trunk of a lawfully

impounded automobile does not contravene the

Fourth Amendment to the United States Constitution.

(No. 78-1206—Decided June 27, 1979.)

APPEAL from the Court of Appeals for Hamilton Coun-

ty.

On February 9, 1977, appellee, Randolph F. Robinson,

was arrested for driving a motor vehicle while his opera-

tor’s license was under suspension. Subsequent to the ar-

rest and removal of appellee to the police station, a tow

truck was summoned for the purpose of transporting ap-

pellee’s vehicle to a commercial storage lot for impound-

ment.

Prior to the arrival of the truck, the arresting officer

procured a standard inventory form from his police cruiser

and began a custodial inventory of appellee’s automobile.

After completing an inventory of the valuables located

within the interior of the vehicle, the officer, in accordance

with standard department procedure, inspected and in-

ventoried the contents of the vehicle’s trunk. Therein, a

large plastic bag was found, which contained numerous

smaller bags of marijuana. The total quantity of the

substance exceeded the bulk amount specified by R. C.

2925.03 (A) (4).

la

2a

The Hamilton County Grand Jury indicted appellee

for possession of a controlled substance in violation of R.

C. 2925.03 (A) (4). A plea of not guilty was entered and

appellee moved to suppress the evidence obtained from the

trunk of the automobile. The motion was overruled. Ap-

pellee then withdrew his earlier plea and pleaded no con-

test. ‘The Court of Common Pleas of Hamilton County

found appellee guilty as charged and placed him on proba.

tion for five years.

Upon appeal to the Court of Appeals, appellee’s con-

viction was reversed and the cause remanded to the Court

of Common Pleas.

The cause is now before this court upon the allowance

of a motion for leave to appeal.

Mr. Simon I. Leis, Jr., prosecuting attorney, and Mr.

Daniel J. Breyer, for appellant.

Mr. Allen Brown and Mr. Mark Eckerson, for appel-

lee.

HERBERT, J. The query posed for resolution in the

cause sub judice is whether the Fourth Amendment to the

United States Constitution is contravened when police,

pursuant to standard department procedure, conduct an

inventory search of the trunk of a lawfully impounded

automobile.

Appellant agrees that a routine inventory search of a

lawfully impounded automobile may be no more intrusive

than is necessary to protect personal property located with-

in the vehicle, and to guard the interests of the police.

Appellant argues, however, that the instant search did not

exceed these limitations and was reasonable within the

meaning of the Fourth Amendment.

Whether a particular search and seizure is unconstitu-

tional depends upon the facts and circumstances of the

3a

cause. Cooper v. California (1967) , 386 U.S. 58, 59: Cool-

idge v. New Hampshire (1971), 403 U.S. 443, 509-510

(Justice Black, concurring and dissenting) ; South Dakota

v. Opperman (1976) , 428 U.S. 364, 373. In Opperman, the

United States Supreme Court considered the constitution-

al propriety of police inventory searches. The court stated,

at page 373: “[T]his court has consistently sustained

police intrusions into automobiles impounded or otherwise

in lawful police custody where the process is aimed at

securing or protecting the car and its contents.” The court

concluded that a routine inventory search of a lawfully

impounded automobile is not unreasonable within the

meaning of the Fourth Amendment when performed pur-

suant to standard police practice, and when the evidence

does not demonstrate that the procedure involved is mere-

ly a pretext for an evidentiary search of the impounded

automobile. It appears logical to conclude from this that

a pretextual search is not an inventory search.

The Opperman decision did not condone vehicle inven-

tory searches of unlimited scope. Justice Powell, in his

concurring opinion at page 380, stated: “Upholding

searches of this type provides no general license for the

police to examine all the contents of such automobiles.”

Nevertheless, in discussing the holding in Cady v. Dom-

browski (1973), 413 U.S. 433, a cause in which the court

upheld a custodial search of the trunk of an impounded

vehicle, the Opperman court stated at pages 374-375:

“[T']he protective search [in Cady] was carried out in ac-

cordance with standard procedures in the local police de-

partment * * *, a factor tending to ensure that the intru-

sion would be limited in scope to the extent necessary to

carry out the caretaking function.” (Emphasis stC.)

In the cause at bar, the Court of Appeals concluded

that the search of appellee’s trunk went beyond the bounds

4a

of Opperman. We disagree. In our opinion, a standard

inventory search of the trunk of a lawfully impounded

automobile does not contravene the Fourth Amendment to

the United States Constitution. Furthermore, the use of

the bags of marijuana as evidence in the trial below was

permissible, and the motion to suppress that evidence was

properly overruled by the trial court. United States v. Ed-

wards (C.A. 5, 1978), 577 F. 2d 883, certiorari denied, 99

S. Ct. 458. See Cady v. Dombrowski, supra; United States

v. Wade (C.A. 5, 1977), 564 F. 2d 676; United States v.

Gravitt (C.A. 5, 1973), 484 F. 2d 375, certiorari denied,

414 U.S. 1135; State v. Wallen (1970), 185 Neb. 44, 173

N.W. 2d 372; State v. Walker (1978), 119 Ariz. 121, 579

P. 2d 1091.

As stated in United States v. Edwards, supra, at page

893: “[s]o long as the scope of the search is reasonable,

taking into consideration the three interests to be protected

by the inventory, * * * [it will] be held to be a constitu-

tionally permissible intrusion.”* See, also, United States

v. Balanow (N.D. Ind. 1975), 392 F. Supp. 200, affirmed

528 F. 2d 923; United States v. Gerlach (E.D. Mich. 1972) ,

350 F. Supp. 180; People v. Trusty (1973) , 183 Colo. 291,

516 P. 2d 423; Annotation 48 A.L.R. 38rd 537.

The judgment of the Court of Appeals is reversed and

the judgment of the Court of Common Pleas is affirmed.

Judgment reversed.

CELEBREzzE, C. J., P. BRowNn, SWEENEY, LocHER and

HouMEs, JJ., concur.

W. Brown, J., dissents.

* South Dakota v. Opperman (1976), 428 U.S. 364, at page 369,

recognized that inventory procedures are designed to accommodate

the following distinct needs: (1) the protection of the owner's prop-

erty while it remains in police custody; (2) the protection of police

against claims or disputes over lost or stolen property; and (3) the

protection of the police from potential danger.

5a

APPENDIX B

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

No. C-77635

STATE OF OHIO,

Plaintiff-Appellee,

Vs.

RANDOLPH F. ROBINSON,

- Defendant-Appellant.

OPINION

(Filed July 26, 1978)

APPEAL FROM THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

Messrs. Simon L. Leis, Jr., Daniel J. Breyer and Peter C.

Weinstein, 420 Hamilton County Court House, Court and

Main Streets, Cincinnati, Ohio 45202, for Plaintiff-Appel-

lee,

Messrs. Allen Brown and Mark Eckerson, Fifth Level,

Barrister House, 216 East Ninth Street, Cincinnati, Ohio

45202, for Defendant-Appellant.

6a

BLACK, J.

Robinson appeals from the overuling of his motion to

suppress a quantity of marijuana discovered by the police

during an inventory search of his impounded car, con-

ducted in accordance with “Standard Police Procedures.”

Officer Donald P. Yost stopped appellant for speeding at

fifty miles an hour in a thirty-five mile an hour zone. A

routine check of his driver's license disclosed that it had

been suspended and he was arrested. While appellant was

being transported to the police department by another

officer, the arresting officer proceeded with “Standard Po-

lice Procedure” for such a case. He called for a wrecker

to impound the car on a private parking lot,’ and he made

an inventory of the car’s contents. In the locked trunk,

he observed an opaque plastic bag as well as wood scraps

and a metal box of tools. Opening the plastic bag he

found the marijuana which is the subject of appellant’s

motion to suppress. We reverse the judgment below,

finding that the search and seizure went beyond all rea-

sonable scope under the particular circumstances of this

case.

All warrantless searches and seizures of persons, houses,

papers and effects are in violation of the Fourth Amend-

ment of the United States Constitution unless they are

reasonable. In South Dakota v. Opperman (1976), 428

U.S. 364, the Supreme Court held that an inventory of

an automobile made routinely pursuant to “Standard Po-

lice Procedure” is reasonable, but the search in that case

extended no further than the passenger compartment and

the unlocked glove compartment. The Chief. Justice noted

' We have no difficulty with the legality and propriety of the arrest

of appellant or the impoundment of his car under the stated circum-

stances.

7a

that there are cases which “have recognized that standard

inventories often include an examination of the glove com-

partment, since it is a customary place for documents of

ownership and registration, . . ., as well as a place for the

temporary storage of valuables.” Jd. at 372. However,

the locked trunk of Opperman’s automobile was not en-

tered and its contents were not inventoried. As stated by

Justice Powell in his concurring opinion, Id. at p. 379,

“. . . the unrestrained search of an automobile and its

contents would constitute a serious intrusion upon the

privacy of the individual in many circumstances. . . . Up-

holding searches of this type [referring to the Opperman

search] provides no general license for the police to ex-

amine all the contents of such automobiles.” Justice

Powell noted that the trunk had not been searched because

it was locked. Id. 380 n. 7. There are limitations to the

scope of any inventory search, and we believe that in the

instant case that scope was exceeded.

In Cady v. Dombrowski (1973), 413 U.S. 433, the Su-

preme Court held the seizure of bloody items (including

a pair of police uniform trousers, a pair of gray trousers,

a night stick with the name “Dombrowski” stamped on it,

a raincoat, a portion of a car floor mat, and a towel) in

the locked trunk of a car towed from an accident to a

private garage for safe keeping was reasonable under the

circumstances of that case. The police who searched the

car had the following information: (1) Dombrowski had

wrecked the car and was a Chicago police officer who was

required to carry a service revolver at all times: (2) Dom-

browski was drunk; (3) there was a flashlight in the

passenger compartment of the car with a few spots of blood

on it; (4) the revolver was not on Dombrowski’s person

nor in the passenger compartment. Dombrowski is dis-

tinguishable on its facts from the present case, the prin-

8a

ciple difference being that the cause of the search there

was the missing service revolver, which could have fallen

into the wrong hands. There is no similar cause for the

search in the instant case.

We have held searches to be unreasonable under similar,

albeit not identical, circumstances. The inventory search

of an impounded car was unreasonable where the purpose

may have been to discover evidence to be used in the

prosecution of the defendant. State v. Jones, No. C-76341

(1st Dist. May 25, 1977). Contraband was held illegally

seized when it was in a closed envelope which happened

to fall from the defendant’s purse as she was looking for

identification when accosted by the police in an apartment

whose owner had called police to get defendant and others

to leave. State v. Strayhorn, No. C-77371 (ist Dist. April

12, 1978). Contraband was suppressed when it was dis-

covered by a police officer who indiscriminately squeezed

all baggage coming off a conveyor belt at an airport in

order to detect by smell the presence of marijuana in any

of the luggage. State v. Apke, No. C-75002 (Ist Dist. April

19, 1976).

We hold that the denomination of the search in the

instant case as an inventory search does not remove it from

the strictures of the Fourth Amendment, that if performed

without a warrant, it must be reasonable, and that not

even “Standard Police Practice” will justify the entry of

a closed opaque bag inside the locked trunk of a car im-

pounded for a routine traffic violation.

The assignment of error has merit. The motion to sup-

press should have been granted. We reverse the judgment

below and remand this cause for further proceedings ac-

cording to law.

BETTMAN, P. J. and Caste, J., Concur.

9a

APPENDIX C

THE STATE OF OHIO, HAMILTON COUNTY

COURT OF COMMON PLEAS

No. B770734

THE STATE OF OHIO

vs.

RANDOLPH F. ROBINSON

COURT FINDING ON PLEA OF NO CONTEST

(Entered July 27, 1977)

This Cause came on this day to be heard, the Defendant

having entered a Plea of No Contest, and was submitted

to the Court. |

And, the Court hereby finds said Defendant is Guilty

of Trafficking Offense (Possession) 2925.03 R.C. sentence

deferred, referred to Probation Department for investiga-

tion and report, Defendant released on same bond.