# Petition — Robinson v. Ohio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 942

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0919%3A1. Public record. Not legal advice.