Petition for Writ of Certiorari — Harbert v. Ohio

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No. APR 5 199

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

DOUGLAS AUSTIN HARBERT

Petitioner

vs.

STATE OF OHIO

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE OHIO SUPREME COURT OF OHIO

LEE FISHER J. THOMAS HENRETTA

Attorney General Counsel of Record

State Office Tower One Cascade Plaza

30 E. Broad Street Suite #1450

Columbus, Ohio 43266-0410 Akron, Ohio 44308

#0031439

LAWRENCE R. SMITH

Counsel for Petitioner

One Cascade Plaza

Suite #1450

Akron, Ohio 44308

#0029026

On: Brief

CARLA S. NEWHOUSE

Trial Assistant

APRIL R. BIBLE

Law Clerk

II.

QUESTIONS PRESENTED

An inventory search, in the absence of any police

guidelines regulating the conduct of such a

search, violates the Fourth and Fourteenth

Amendments of the United States Constitution.

A trial court may not find independent grounds

which were never advanced by the State to

overrule a motion to suppress.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............5005.

I. An inventory search, in the absence of any

police guidelines regulating the conduct of such

a search, violates the Fourth and Fourteenth

Amendments of the United States Constitution.

II. Atrial court may not find independent grounds

which were never advanced by the State to

overrule a motion to suppress.

TABLE.OF AUTHORITIES .........cceceeee. iv

eo ee re er 1

Fs Perera granary rs aie 1

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATEMENT OF THE CASE ................. 3

A. HOW THE FEDERAL ISSUES WERE

RAISED AND DECIDED BELOW ....... 4

B. STATEMENT OF FACTS .............. 6

THE REASONS FOR GRANTING THE WRIT . 8

1. The court of appeals’ reliance on Florida v.

Wells, 110 S. Ct. 1632 (1990) is a

misinterpretation of the law as announced by

the United States Supreme Court concerning

the validity of inventory searches

2. Thetrial court’s finding of independent grounds

which were never advanced by the State to

overrule a motion to suppress violates the

Fourth and Fourteenth Amendments of the

United States Constitution

CEES Se see PRO Vet beech kdwnns aes 20

CERTIFICATE OF SERVICE ................ 20

APPENDICES

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Judgment Entry of the Motion to

Suppress

Sentencing Journal Entry

Ohio Revised Code Sections

State v. Harbert, Stark County Court

of Appeals

State v. Harbert, Ohio Supreme Court

Portions of Transcript of Motion to

Suppress

iil

TABLE OF AUTHORITIES

Cases Page

Arkansas v. Sanders

ER ea = 8,17

Colorado v. Bertine

479 U.S. 367 (1987) ........ _ 9, 10, 11, 13, 14, 16

Florida v. Wells

(Apr. 18, 1990) U.S. Sup. Ct. Case No. 88-1835,

ee ED pc cancsceacuewes eee 5

Illinois v. Layfayette

re eke awe b ak eeeee 18

New York v. Belton

I 18

People v. Fox

379 N.E. 2d 917 (Ill. App. 1978) ............ 12

Smith v. Ohio

er 9

South Dakota v. Opperman

498 USB. SBE CASTE) . www wes 8, 10, 11, 14, 17

State v. Caponi

12 Ohio St. 3, 902 (1964) ................. 14

State v. Goodrich

256 N.W. 2d 506 (Minn. 1976) ............. 12

State v. Hardman

567 P2d 238 (Wash. App. 1977) ............ 12

State v. Hibbett

150 Ohio St. 3d, 376 (1980) ................ 12

State v. Phifer

254 S.E. 2d 586 (N.C. 1979) ............... 12

State v. Robinson

5 RF re 8, 10, 14

State v. Slockbower

See We I, OUD gv cc ccc ccnccscuces

United States v. Jones

ee oe ee kee euatean

United States v. Staller

616 F2d 1284 (6th Cir.) cert. den. 449

CONSTITUTIONAL PROVISIONS

nn ee eee es

IN THE SUPREME COURT OF THE UNITED STATES

Term, 19

Douglas Austin Harbert

Petitioner

Vv.

State of Ohio

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE OHIO SUPREME COURT OF OHIO

The petitioner, Douglas Harbert, respectfully prays

that a writ of certiorari be issued to review the judgment

of the Supreme Court of Ohio entered in the above-styled

proceeding on December 19, 1990.

OPINIONS BELOW

The Ohio Supreme Court denied jurisdiction, thereby

letting stand the decision of the Fifth Appellate District,

Stark County, Ohio. A copy of the Court’s opinion appears

in the appendix to the Peti.uon as Appendix E.

JURISDICTION

The judgment of the Ohio Supreme Court was entered

on December 19, 1990, and this petition was timely filed

within ninety (90) days of that date. This court’s

jurisdiction is invoked under 28 U.S.C. @ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fourth and Fourteenth

Amendments to the Constitution of the United States

which provide, in pertinent part:

FOURTH AMENDMENT

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,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

FOURTEENTH AMENDMENT

Section 1. 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 shali make or enforce

any !aw which shall abridge the privileges or

immunities of the 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

Petitioner, Douglas Harbert, was initially charged on

May 12, 1989, with Possession of Cocaine, in violation of

Revised Code Section 2925.03(A)(6), a felony of the second

degree; Permitting Drug Abuse in a Vehicle, in violation

of Revised Code Section 2925.13(A), a misdemeanor of the

first degree, and with Improperly Handling a Firearm in

a Motor Vehicle, in violation of Revised Code Section

2923.13. a misdemeanor of the fourth degree. A copy of

these Code Sections are attached to this petition and

marked as Appendix C.

Petitioner was indicted on June 23, 1989, and filed a

Motion to Suppress on August 1, 1989, contending that all

evidence against petitioner was obtained as a result of an

illegal search and seizure. A hearing was heid upon the

Motion on September ii, 1989, and Judge Gwin handed

down his decision on September 29, 1989. The opinion of

the Stark County Common Pleas Court is unreported but

attached to this Petition as Appendix A.

Petitioner subsequently changed his plea from not

guilty to no contest and preserved his right to appeal the

denial of his motion to suppress. The court accepted the

plea, found petitioner guilty, and on November 27, 1989

was sentenced to an indeterminate term of three (3) to

fifteen (15) years for Aggravated Trafficking; to a

determinate sentence of six (6) months for Permitting

Drug Abuse in a Motor Vehicle; and to a determinate

sentence of thirty (30) days for Improper Handling of a

Firearm. These sentences are to be served consecutively.

The Sentencing Journal Entry of the Stark County

Common Pleas Court is attached to this Petition and

market as Appendix B. Execution of sentence was

suspended pending appeal.

Petitioner appealed the judgment to the Court of

Appeals of Ohio for the Fifth Judicial District. He raised

as error the trial court’s overruling of his motion to

suppress. The court of appeals found no error and

affirmed petitioner’s conviction. State v. Harbert

(August 13, 1990), Stark County Court of Appeals, Fifth

Judicial District, No. CA-8027, unreported. This opinion

is attached to this petition and marked as Appendix D.

Following the decision of the Court of Appeals,

petitioner’s bond was revoked Petitioner is currently

incarcerated.

Petitioner filed a Notice of Appeal to the Ohio

Supreme Court. On December 19, 1990, the court declined

jurisdiction. State v. Harbert (December 19, 1990), Ohio

Supreme Court, No. 90-1770, unreported. This opinion is

attached to this Petition and marked as Appendix E.

A. How the Federal Issues Were Raised And

Decided Below

Petitioner filed a Motion to Suppress in the Common

Pleas Court of Stark County. Petitioner moved the court

for an order suppressing any and all evidemce obtained

from him at the time of his arrest as said evidence was

obtained as a result of an illegal search and seizure in

violation of the Fourth and Fourteenth Amendments of

the United States Constitut‘on.

An evidentiary hearing was conducted on September

11, 1989. On September 29, 1989, the trial court

overruled petitioner’s motion to suppress. The trial court

ruled that the search of Petitioner’s car was made

pursuant to a legitimate inventory search even though

the court found that the “Ohio State Highway Patrol

maintains a policy of giving officers discretion over

whether to take possession of vehicles being operated by

an impaired operator.” The trial court also ruled that

even if the search was conducted with an investigative

purpose, it was still permissible as a “search incident to

arrest.” See Appendix A.

Petitioner filed a timely appeal, averring that the

trial court erred by “failing to suppress the evidence

seized under the guise of an inventory search when, in

fact, it was seized during an investigative or evidentiary

search.” Petitioner additionally argued that the trial court

erred when it found independent grounds which were

never advanced by the State to overrule the motion to

suppress.

On August 13, 1990, the Court of Appeals for the

Fifth Judicial District, affirmed the trial court’s denial of

the motion to suppress relying specifically on Florida v.

Wells, 110 S. Ct. 1632 (1990), which was decided

subsequent to the filing of Petitioner’s brief with the court

of appeals but prior to oral argument. The court of

appeals relied on the State of Ohio’s argument that “[a]

police officer may be allowed sufficient latitude to

determine whether a particular container should or

should not be opened in light of the nature of the search

and characteristics of the container itself.” Florida v.

Wells, supra at 1635.

On August 21, 1990, petitioner appealed to the Ohio

Supreme Court, asserting that the case involved a

substantial constitution question and presented a

question of great public interest. Petitioner raised the

following propositions of law in the Ohio Supreme Court:

I. Appellant was denied his constitutional rights as

guaranteed by the Fourth and Fourteenth

Amendments to the United States Constitution

when the trial court failed to suppress the

evidence seized under the guise of an “inventory

search” when, in fact, it was seized during an

investigative or evidentiary search.

II. Appellant was denied his Constitutional rights as

guaranteed by the Fourth and Fourteenth

Amendments to the United States Constitution

when the trial court found independent grounds

which were never advanced by the State to

overrule the appellant’s motion to suppress.

On December 19, 1990, the Ohio Supreme Court

declined jurisdiction. State v. Harbert (December 19,

1990), Ohio Supreme Court, No. 90-1770, unreported. See

Appendix E.

B. Statement of the Facts Material to the

Consideration of the Questions Presented.

The below stated facts are taken from the transcript

of the Hearing of the Motion to Suppress. Relevant

sections of the transcribed are attached to this Petition

and marked as Appendix F.

On May 12, 1989, the Petitioner was arrested outside

his residence located at 2994 Brunnerdale Road, Jackson

Township, Stark County, Ohio. Just prior to his arrest,

approximately 1:30 a.m., the Petitioner was traveling

south on Brunnerdale Road when he spotted Officer Diss

traveling north on Brunnerdale Road. Officer Diss

determined that the Petitioner was exceeding the lawfully

posted speed limit. (R-24) While Officer Diss was turning

around, the Petitioner turned left onto a private road and

right into his driveway. (R-27) Officer Diss arrives as the

Petitioner is exiting his car and parks behind and west of

the Petitioner’s car with his red lights on. (R-29) The

Petitioner turns and approaches the officer and they meet

between the two cars. (R-20,30) Officer Diss informs the

Petitioner that he had been clocked doing 69 m.p.h. in a

55 m.p.h. area. (R-8) Officer Diss then detects the odor of

alcohol and asks the Petitioner to have a seat in his

patrol car. (R-9)

While the Petitioner is in the front seat, Officer Diss

inquires if the address on his license is his current

address and is informed by the Petitioner that he lives at

2994 Brunnerdale Road, where his car is parked. (R-

30,31)

Officer Diss then detects the odor of burnt marijuana

about him and has the Petitioner exit the vehicle and

perform some field sobriety tests. (R-9) His performance

was rated fair by Officer Diss and he was placed under

arrest for Driving Under the Influence. (R-10) The

Petitioner was then searched and a clear glass vial, with

white powder residue, suspected to be cocaine, was found

in one of his pockets. (R-11) The Petitioner was

handcuffed and placed in the back of the cruiser and seat

belted. (R-35)

ea a Ey

= —

Officer Diss then proceeds to approach Petitioner’s car

and look into it by means of a flashlight and opens the

interior and starts to perform an inventory search. (R-

35,38) Officer Diss does not remember if he found

anything there or if it was later, (R-35) but he does

remember returning to the Petitioner and getting his car

keys from his pants pocket. (R-36) Then using the keys,

he opens the locked trunk and the contraband and

weapons are found.

Subsequently, backup officers are called and Officer

Diss helps in the inventory of the contents of the car. (R-

43). As a result of the various searches of the Petitioner’s

car, the Petitioner was charged with Possession of

Cocaine, in violation of Revised Code Section

2925.03(A)(6); Permitting Drug Abuse, in a Motor Vehicle,

in violation of Revised Code Section 2925.13(A) and with

Improperly Handling a Firearm in a Motor Vehicle, in

violation of Revised Code Section 2923.16.

REASONS FOR GRANTING THE WRIT.

1. The Court of Appeals’ reliance on Florida v.

Wells, 110 S. Ct. 1632 (1990) is a

misinterpretation of the law as announced by the

United States Supreme Court concerning the

validity of inventory searches.

The Fourth Amendment to the United States

Constitution provides:

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 be issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. Const. amend. IV.

It has long been a fundamental principle of Fourth

Amendment analysis that exceptions to the warrant

requirement are to be narrowly construed. Arkansas v.

Sanders, 442 U.S. 753 (1979) and South Dakota v.

Opperman, 428 U.S. 364 (1976). One of those exceptions

is the “Inventory Search” as defined by the United States

Supreme Court in South Dakota v. Opperman, supra,

Id. and the Ohio Supreme Court in State v. Robinson,

58 O. St. 2d 478 (1979). This exception is bottomed on the

fact that it is not investigative in nature but one of care

taking and that three governmental interests are served.

1) The protection of the owner’s property while it remains

in police custody; 2) the protection of the police against

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

protection of the police from potential danger. South

Dakota v. Opperman, 42 US. at 369.

In State v. Robinson, supra, as well as South

Dakota v. Opperman, the bright line rule seemed to be

that if an inventory search were to be valid three

components had to merge, 1) it was standard police

procedure; 2) the vehicle was legitimately impounded and;

3) there was an absence of investigating motive. Failure

of the State to establish any one of those three

requirements, renders so called “inventories” insufficient

as a matter of law.

The United States Supreme Court in Colorado v.

Bertine, 479 U.S. 367 (1987) changed the equation by

requiring the State only to prove that reasonable police

regulations relating to inventory procedures were in place

and that they were administered in good faith sc as to

satisfy the requirements of the Fourth Amendment. It is

the Petitioner’s contention that this is just a restatement

of the Opperman test, but whatever the test used in the

instant case, this search does not satisfy the Fourth

Amendment.

Ultimately, the Court of Appeals of Ohio relied on

Florida v. Wells, 110 S. Ct. 1632 (1990) to affirm the

denial of the Motion to Suppress. Florida v. Wells,

supra, was decided subsequent to the filing of petitioner’s

brief in the Court of Appeals but prior to oral argument.

In the Court of Appeals, the prosecution relied upon

a statement made by this Court that “[a] police officer ©

may be allowed sufficient latitude to determine whether

a particular container should or should not be opened in

light of the nature of the search and characteristics of the

container itself.” Florida v. Wells, supra at 1635.

However, the Court of Appeals of Ohio failed to follow

the ultimate holding of that case which upheld the

suppression of the evidence because the Florida Highway

Patrol had no policy whatever with respect to the opening

of closed containers encountered during an inventory

search. Id. Therefore, the search was not properly

regulated to satisfy the Fourth Amendment. Id.

As in Florida, supra, the search in the instant case

of Petitioner’s automobile was not sufficiently regulated

to satisfy the requirements of the Fourth Amendment.

In Smith v. Ohio, 110 S. Ct. 1288 (1990), this Court

reversed the Ohio Supreme Court’s decision after the

filing of the Petition for Writ of Certiorari for failure to

follow the law controlling search incident to arrest.

Petitioner would invite this Court to do the same in this

case.

a. Standard Police Inventory

Inventory searches, to be valid, must be carried out in

accordance with standard procedures in the

department. State v. Robinson, supra, South Dakota

v. Opperman, supra and Colorado v. Bertine, supra.

The evidence offered by the State below failed to establish

these standards. Officer Diss, when questioned by the

State, stated:

Q: Okay. Is it routine after a DUI stop to have the

vehicle, the person who is driving the vehicle’s car towed.

A: It’s up to the Officer.

Q: Had there been another passenger in the car,

would you have had the car towed. Assuming that the

person was not under the influence of alcohol.

A: Well, a lot of times, if it was a sober passenger

that would just follow us right down to the Police

Department or come pick up the person after a breath

test if there’s not gonna be incarceration . . .

Q: And is that [administrative inventory] routinely

done after a car is towed whenever a car is towed or...

A: Yeah. We do an inventory

(R-13, 14)

When questioned further on Cross Examination,

Officer Diss testified:

Q: Okay, now you, uh, are there any guidelines for

the State Highway Patrol on administrative searches.

A: Uh, I’m not sure if there’s any set forth in policy

and procedure or not.

(R-18)

Later he testified:

Q: And to the best of your recollection, there is no

policy or procedure for an administrative report search, is

that correct?

A: Oh, it’s set forth in policy and procedure. I do not

know exactly what is set forth and what it states .. .

Q: Okay, and when’s the last time that you read

them?

A: I really couldn’t tell you...

Q: Four years ago?

A: Could be.

(R-19) Appendix F.

Then incredulously, Officer Diss testified that he had

never seen “You are Commanded To Search” by Judge

James Bachman (Defendant’s Exhibit One and Two). If

guidelines exist, the State has failed to show them or that

Officer Diss is even vaguely familiar with them.

In Colorado v. Bertine, supra at 376, Justice

Blackman, with whom Justice Powell and Justice

O’Conner join, wrote a separate opinion to “underscore

the importance of having such inventories conducted only

(emphasis added) pursuant to standardized police

procedures”. In the instant case, no procedures were

introduced except what Officer Diss could recall from

reading something over four years ago.

Justice Blackman further stated that, “The underlying

rationale for allowing an inventory exception to the

Fourth Amendment warrant rule is that police officers

are not vested with discretion to determine the scope of

the inventory search.” Colorado vy. Bertine, supra at

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

382-83. In the instant case, Officer Diss even searched

the hood area of the car during his inventory search. (R-

52)

In South Dakota v. Opperman, the Court stressed

“no significant discretion is placed in the hands of the

individual officer, he usually has no choice as to the

subject of the search or its scope. South Dakota v.

Opperman, supra at 384. Clearly, Officer Diss exercised

almost unlimited discretion over the scope of the search

since there were no guidelines to constrain him.

b. Legitimate Impoundment of Vehicle

Robinson, Opperman and Bertine require that the

police have “lawful custody” of the vehicle in order to

conduct an inventory of its contents. Most courts have

held that the impoundment be necessary in order for it to

be lawful. See e.g. U.S. v. Staller, 616 F2d 1284 (5th

Cir.) cert. den. 449 U.S. 869 (1980); State v. Goodrich,

256 N.W. 2d 506 (Minn. 1976); State v. Slockbower,

397 A2 1050 (N.J. 1979); State v. Phifer, 254 S.E. 2 586

(N.C. 1979). Several courts also require that the police

must first explore less intrusive means of dealing with

the vehicle before impounding it. State v. Slockbower,

supra; People v. Fox, 379 N.E. 2d 917 (Ill. App. 1978);

State v. Hardman, 567 P2 238 (Wash. App. 1977).

The Ohio courts have adopted that line of reasoning

which requires that the police look to other less intrusive

means than impoundment. In citing Opperman with

approval, the Hamilton County Court of Appeals stressed

that the evidence failed to demonstrate the unavailability

or inability of the owner to protect his own property in

the automobile. State v. Hibbett, 150 Ohio St. 3d, 376

(1980).

In the case at bar, Officer Diss was aware that the car

was legally parked in a driveway and that the Petitioner

had informed him that he did, in fact, live there. (R-

30,31).

There was testimony that the Petitioner locked his car

when he exited the vehicle. (R-36,37,67) At the time of his

arrest, there was no need to impound his car since it was

legally parked and off the road.

Although Officer Diss cannot state what the policy

and procedures dictate or what the guidelines are, he did

know that he had discretion under those guidelines. He

stated:

Q: Do you administratively search all DUI stops?

A: No, Ido not.

Q: Okay, and do you make some decision on whether

or not to tow or whether or not to search, is that correct?

A: I think that there has been decision of whether to

tow the vehicle and search the vehicle or whether or not

to tow the vehicle and not to search it.

Q: That’s correct. And you made those decisions

based on some criteria?

A: Based on that’s the officer’s discretion, whether

I want to or whether I don’t.

Q: Okay. What I want to know is what goes into that

decision making process? What determination is it when

you search one car and not another? What do you use as

a criteria?

A: I really have no set standards, nothing that

I go by. It’s a decision I make at the time. (R-22,23)

(emphasis added) Appendix F.

As stated by Justice Powell in Bertine, supra, “This

absence of discretion ensures that inventory searches will

not be used as a purposeful and general means to

discover evidence of crime.” Colorado v. Bertine, supra

at 376. The Supreme Court is aware that some discretion

is contemplated but only “so long as that discretion is

exercised according to standard criteria and on the basis

of something other than suspicion of evidence of criminal

activity, Colorado v. Bertine, supra 375.

The trial court in the instant case found the Ohio

State highway Patrol maintains a policy of giving officers

discretion over whether to take possession of vehicles

being operated by an impaired operator. He then listed

the factors used: 1) the vehicle presents a threat to travel,

2) whether it is on property clearly owned by the person

involved, 3) where the vehicle itself could be vandalized.

The court then ruled that the trooper “could legitimately

believe that Harbert chose to pull into the location as the

result of the pursuit of the patrol car.” Appendix A.

Assuming arguendo that there exists a regulation

which requires the car to be parked on property “clearly”

owned by the person involved, it was not shown that

Officer Diss did not believe that the Petitioner lived at

the residence nor that he pulled into said driveway as a

result of the pursuit of the patrol car. Nevertheless, this

type of discretion clearly is not that which would be

tolerated as an exception to the Fourth Amendment’s

requirements for a warrant.

c. Absence of Investigatory Motive

The Supreme Court of Ohio has fairly warned the

police of the Constitutional prohibitions against

pretextual searches where inventories are involved.

“

. .€ routine inventory search of a lawfully

impounded automobile is not unreasonable within

the meaning of the Fourth Amendment when

performed pursuant to standard police practices

and when the evidence does not demonstrate that

the procedure involved is merely 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.

State v. Robinson, supra (emphasis added).

Inventory searches are thus permissible oply when

not utilized in reality as an evidentiary search. It is the

non-investigative police inventory of automobiles to

which warrant requirements are inapplicable. See, South

Dakota v. Opperman, supra at Fn5. The Supreme

Court in Colorado v. Bertine, supra was concerned

that inventory searches could be pretexts for evidentiary

searches.

“

. ensures that inventory searches will not be

used as a purposeful and general means of

discovering evidence of crime”. Colorado v.

Bertine, supra at 376.

The Ohio Supreme Court in State v. Caponi, 12 Ohio

St. 3, 302, stated:

“A search which is conducted with an

investigatory intent, and which is not conducted

in the manner of an inventory search, does not

constitute an “inventory search”, and may not be

used as a pretext to conduct a warrantless

evidentiary search.”

In the instant case, we must examine the “inventory

search” to ascertain whether Officer Diss was conducting

an evidentiary search rather than the inventory search he

clairns. First, at no time did Officer Diss on his first entry

into the automobile, write anything down even though he

noticed: a) a cellular phone; b) dash mount radar detector,

and c) scanner.

Q: And you're in there to write down what you find

and what you see, right, so that you’ve got some record?

A: That’s true.

Q: And you're not writing it down?

A: Not at that time, I was not, no.

(R-38) Appendix F.

Second, at no time was an inventory given to the

Defendant nor was any written instrument from said

inventory search ever introduced by the State.

Q: Did he ever give you a copy of a piece of paper at

any time about the contents...

A: No.

Q: Let me finish the question. Did he or anybody else

give you a list of the contents of your car.

A: No, they never did.

(R-61) Appendix F.

Third, prior to inventorying the car, Officer Diss

inquired of the Petitioner on two different occasions

whether he had any contraband in the vehicle or trunk.

Q: Do you remember asking Mr. Harbert prior to

searching the car whether or not he had anything on him

or in the vehicle or in the trunk, any contraband or

anything that he should not have had?

A: I believe that’s what I had asked him.

Q: Okay. And his answer was?

A: It would be no.

Q: But you asked him that, whether or not he had

any drugs in the trunk prior to going into the car? He

said, no?

A: Even when I was patting him down, I asked him

if he had anything he shouldn’t have.

(R-48,49) Appendix F.

Fourth, the first intrusion into the car by Officer Diss

did not reveal any contraband and he went back and

retrieved the keys from the Defendant/Petitioner and

made the second intrusion into the car, i.e., the locked

truck where the contraband was found in a closed

briefcase.

Q: And the you go up and the first time that you

search into the car and look around, you don’t find

anything right away, right?

A: I’m not sure if I found something right then or of

it was later.

(R-35) Appendix F.

Fifth, the third intrusion into the car was when the

other officers arrive later and help complete the

“inventory search” which included the interior of the car,

the trunk and under the hood of the car.

Q: So, other officers were now doing the search and

you were outside in front of the car?

A: Right, I was searching the hood area of the car.

Q: The hood area of the car for inventory?

A: Weil, people put things underneath the hood

too at times. (emphasis added) (R-52) Appendix F.

Clearly, taking into consideration the totality of the

circumstances, Officer Diss was more interested in what

he could find than securing the automobile. It is the

Petitioner’s contention that Officer Diss used this as a

pretext to search this automobile under the guise of an

inventory search.

In is clear from all the facts that the state did not

show “that reasonable police regulations relating to

inventory procedures” existed nor that they were

“administered in good faith” so as to satisfy the

requirements of a warrantless search under the Fourth

Amendment. Colorado v. Bertine, supra

Therefore, this Court should overturn the Ohio

Supreme Court’s decision and suppress the evidence in

the instant case.

2. The trial court’s finding of independent grounds

which were never advanced by the State to

overrule a motion to suppress violates the Fourth

and Fourteenth Amendments of the United States

Constitution.

bi oaeenarenneanicniedneill

In the instant case, a hearing was held on the

Petitioner’s Motion to Suppress on September 11, 1989.

On September 20, 1989, the Court overruled the

Petitioner’s Motion finding that it was a valid inventory

search but if it wasn’t then, it was permissible since it

was bottomed on an evén better exception to the Fourth

Amendments requirements for a warrant to search. The

Court found that these facts simply rearranged, gave rise

to a “search incident to arrest” exception to the Fourth

Amendment's requirement for a warrant. Appendix A.

First, since the day of his arrest on May 12, 1989,

through the preliminary hearing on May 19, 1989, and

culminating in the hearing on the Motion to Suppress on

September 1,, 1989, no one from the State, including

Trooper Diss, at any time, even mentioned that this

search was being conducted as a search incident to a

lawful arrest.

One of Petitioner’s Counsel’s very first questions at

the Suppression hearing was directed at this very issue.

Q: Did Mr. Harbert give you permission to search the

car. Yes or no.

A: No. No he did not...

Q: And do you remember me asking you the question

that you didn’t search incident to arrest, but you searched

the car pursuant to an inventory search, is that correct ...

Q: And, did you search the car pursuant to an

inventory search?

A: I had searched the car for an administrative

inventory, that’s correct.

(R-17,18) Appendix F.

The first time the Petitioner hear that this search was

being legitimized by the phrase “search incident to an

arrest” was when he read it in Judge Gwin’s ruling

sometime after September 20, 1989.

It has long been a fundamental principal of the

Fourth Amendment analysis that exceptions to the

Warrant Requirements are to be narrowly construed.

Arkansas v. Sanders, supra South Dakota v.

Gpperman, supra. It seems axiomatic that if the State

didn’t argue an exception nor offer any proof of the

exception that to rely on it would be unconstitutionally

impermissible. In the instant case, at no time during the

hearing were the words “probable cause” every used by

Officer Diss or anyone by the State. One can only surmise

if he had “probable cause” he would have articulated

what he predicated it on since he didn’t, it would be safe

to assume Officer Diss didn’t feel probable cause existed

at the time. (Saying his testimony as the sequence of

events is confusing is an understatement).

Judge Gwin cites New York v. Belton, 453 U.S. 454

(1981) for the proposition that “an officer may search the

complete passenger area of a car at the time of an arrest

irregardless of whether the area was within reach of the

Defendant.” The operative word being may and in this

case, Officer Diss felt or decided he could accomplish his

goals with an inventory search.

Nevertheless, he searches the passenger compartment

and Judge Gwin states that the trooper was confronted

with the smell of marijuana and the discovery of

marijuana in the passenger compartment of the vehicle.”

(After rereading the transcript, it is not possible to tell

when he found the marijuana but Petitioner contends it

was after going into the trunk). Thus, Judge Gwin

concludes that Trooper Diss “now had probable cause to

believe that contraband was present” and the United

States v. Jones, 469 U.S. 478 gave him the right to

search the entire vehicle. Appendix A.

Although Judge Gwin cited the language in Illinois

v. Lafayette, 462 U.S. 640 (1983) for another point it can

be used here.

“The real question is not what could have been

achieved, but whether the Fourth Amendment

requires such steps .. . The reasonableness of any

particular governmental activity does not

necessarily or invariably turn on the existence of

alternative, less intrusive means.” 479 U.S. at

374. (emphasis in the original)

In the instant case, “what could have been achieved”

under the search incident to an arrest coupled with

further “probable cause” concepts versus what the Fourth

Amendment requires if one conducts a less intrusive

inventory search. It is the Petitioner's contention that

once the inventory search is found to be constitutionally

defective, then it cannot be buttressed by another

exception. Especially since the search incident to an

arrest was never argued below. (Clearly, the issue of

whether the initial arrest would have taken on

paramount importance but since it wasn’t an issue it

wasn’t contested).

Therefore, Petitioner contends the search was

unconstitutional and the evidence should have been

suppressed.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment of the Supreme Court of Ohio.

Should the Court decide that plenary review is

unnecessary in view of the clear conflict between the

judgment of the Ohio Supreme Court and this Court’s

prior decisions, petitioner alternatively requests that the

Court summarily reverse the judgment of the Ohio

Supreme Court.

Respectfully submitted,

SMITH, HANNA, ALTWIES,

ADGATE & EDMINISTER

J. THOMAS HENRETTA

Counsel of Record

One Cascade Plaza/Suite #1450

Akron, Ohio 44308

(216) 376-9121

CERTIFICATE OF SERVICE

Pursuant to Rule 29.3, Rules of the Supreme Court,

I hereby certify that a copy of the foregoing Petition for

Writ of Certiorari was served on Respondent, State of

Ohio, by forwarding a copy to the office of its counsel, Lee

Fisher, Attorney General, State Office Tower, 30 E. Broad

Street, Columbus, Ohio 43266-0410, by U.S. mail this

____ day of March, 1991. I further certify that all parties

required to be served have been served.

J. THOMAS HENRETTA

Counsel of Record

APPENDIX A

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO CASE NO. 89-9330

Plaintiff : Judge James S. Gwin

vs. ORDER

DOUGLAS A. HARBERT, :

Defendant.

This matter is before the Court upon the Motion to

Suppress (“Motion”) which was filed August 1, 1989 by

Defendant, Douglas Austin Harbert (“Defendant” or

“Harbert”.) The Motion seeks to suppress “any and all

evidence which was obtained from the Defendant at the

time of his arrest on May 12, 1989”, arguing that such

evidence was obtained as the result of a warrantless and

illegal search.' A hearing was held upon the Motion of

September 11, 1989. For the reasons hereinafter set out,

the Motion will be denied.

On May 12, 1989, Ohio State Highway Patrolman

Todd Diss (“Diss”) was on patrol in Jackson Township,

Stark County, Ohio. At approximately 1:30 am he was

travelling north on Brunnerdale Road when he had

occasion to determine that a vehicle travelling south on

Brunnerdale Road was exceeding the lawfully posted '

speed limit. The vehicle was determined, by radar, to be

travelling at a speed of sixty-nine (69) miles per hour in

a fifty-five (55) miles per hour speed limit area. After |

reversing travel, Diss pursued the vehicle and followed it

'Defendant has made no assertion that the original

arrest of the Defendant for driving under the influence

was without probable cause. The facts, as found by the

Court in this matter, would not support such a claim.

to a private road and then into the driveway of a home

located at 2994 Brunnerdale Road, Jackson Township,

Stark County, Ohio.” Upon approaching the vehicle after

leaving the cruiser, Diss found the Defendant to have

exited his vehicle and found him to be approaching the

cruiser. Trooper Diss then indicated to Harbert that he

had been speeding. He then inquired of Harbert as to

whether Harbert had been consuming alcohol and as to

where he had been. Harbert indicated that he had been

at the “Pub Club” after having left a bowling banquet and

had consumed a couple of drinks.

Diss testified credibly that he had aiso detected the

odor of marijuana about the Defendant and had made

inquiry of the Defendant concerning this odor. The Court

credits Diss’ testimony that Harbert indicated that he had

been in the presence of marijuana smoking although

claiming not to have consumed such substance himself.

Diss thereafter administered a field sobriety test to

Harbert and determined to place Harbert under arrest for

driving while under the influence. Diss thereafter

searched the Defendant in the area in front of the patrol

car. Prior to instituting the search, Diss asked the

Defendant whether he had any substances upon him

which he should not have. The Defendant responded that

he did not. The search produced a clear glass vial in one

of the Defendants pockets with a white residue. This

residue and the vial were consistent with it being cocaine.

No other contraband was found upon the person of the

Defendant.

The Defendant was then handcuffed and placed in the

cruiser. A review of his operators license and vehicle

registration both indicated that the Defendant lived at

another address from that in which the vehicle was then

parked. Trooper Diss determined to impound the vehicle

*There was some confusion as to the exact address of

the house. Trooper Diss initially recorded the address as

being 3014 Brunnerdale Road. The correct address of the

location appears to have been 2994 Brunnerdale.

and have it towed. Harbert argues that such an

impoundment was unnecessary given his expression to

the trooper that he lived at the location. There was, at

least initially, no evidence available to Diss which

supported this. No persons in the house came forward to

identify the Defendant as an occupant of the house or

even turned on any lights.

The Ohio State Highway Patrol maintains a policy of

giving officers discretion over whether to take possession

of vehicles being operated by an impaired operator. Diss

testified that factors utilized in making this decision

include whether the vehicle presents a threat to travel,

and whether it is on property clearly owned by the person

involved. Ultimately, the officer is given discretion to

impound the vehicle where it is a danger to other traffic

or where the vehicle itself could be vandalized. The

trooper could legitimately believe that Harbert chose to

pull into the location as the result of the pursuit of the

patrol car.

Diss began conducting an inventory of the vehicle

after determining to impound the vehicle. Diss obtained

the keys for the vehicle from the pocket of the Defendant

who was handcuffed in the vehicle.* The Court finds that

Diss neither asked for, nor received, permission to obtain

the keys or to search the vehicle. Diss indicated that he

found a police scanner and a radar in the passenger

compartment. In addition he found a hand rolled cigarette

which was thought to be marijuana below the armrest as

well as a partially smoked hand rolled cigarette also

thought to be marijuana in the ask tray. Thereafter, Diss

conducted an inventory search of the trunk. He there

°The Defendant testified that the keys for the vehicle

were required to gain access to the vehicle itself as well

as the trunk. Diss testified that the keys were needed for

gaining access to the trunk although he was not sure

whether they were needed to gain access to tne passenger

compartment.

found a large amount of cocaine‘, more marijuana, certain

capsules, a large amount of money and with a loaded

handgun.

While conducting this search, Diss was joined by

Highway Patrol Sergeant Estris and Troopers Eaton and

Hetrick. Diss testified that, at various times, these

officers assisted him in conducting the search. While so

assisting Diss in this search one of the officers attempted

-to actuate a radio garage door opener found in the

passenger area of the vehicle. Diss testified credibly that

this attempt occurred after the search had been initiated.®

Thereafter the Defendant was indicted for possession

of cocaine, a schedule II substance in an amount

exceeding three times the bulk amount and after having

previously been convicted of a felony drug abuse offense

(R.C.2925.03(A)(6)), permitting drug abuse in a vehicle

(R.C.2925.13(A)) and with improperly handling a firearm

in a motor vehicle (R.C.2923.16).

The Court finds that the search of the Defendant’s

automobile was proper upon the independent and

independently sufficient grounds that an inventory was

being made of a impounded property and that the

patrolmen had probable cause to believe that the

automobile searched contained contraband.

After viewing the demeanor of the witnesses and

closely reviewing the testimony, the Court finds that the

search of the subject vehicle was legitimately motivated

by a desire to secure the property in the vehicle and to

protect the officer and the Defendant from any potential

claims that could arise with regard to personal property

‘The Defendant is charged, among other crimes, with

possession of cocaine in an amount in excess of three

times the bulk amount.

‘The Defendant testified that it was Diss, not another

officer who used the garage door opener. The Court does

not find this testimony credible.

in the vehicle. The Court finds that the search was

notconducted in bad faith or for the sole purpose of

investigation. As such, the search was wholly protected,

Colorado v. Bertine, 479 U.S. 367 (1987), Michigan v.

Thomas, 458 U.S. 259 (1982), South Dakota v.

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

California, 386 U.S. 58 (1967).

Thus in Bertine the police officer had arrested a man

for drunk driving and had determined to impound the van

the man was driving. While conducting an inventory, the

officer opened a closed backpack in the back of the van.

The officer there discovered cocaine, other drugs and

cash. The Supreme Court rejected the argument that the

inventory was unreasonable because of the availability of

other methods of protecting the contents of the vehicle.

Citing Illinois v. Lafayette, 462 U.S. 640 (1983) the

Court held:

“The real question is not what ‘could have been

achieved,’ but whether the Fourth Amendment

requires such steps .... The reasonableness of

any particular governmental activity does not

necessarily or invariably turn on the existence of

alternative ‘less intrusive means.’ ” 479 U.S. at

374 (emphasis in the original)

Inventory searches serve a legitimate governmental

interest in protecting the owners’ property and to insure

against claims of lost, stolen, or vandalized property and

to guard police from danger. These concerns have been

found to provide justification for inventory searches,

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

In Opperman, the defendants automobile was subjected

to a search after being taken into custody for multiple

parking violations. The Court held:

“The decisions of this Court point unmistakably to

the conclusion reached by both federal and state

courts that inventories pursuant to standard

police procedures are reasonable.”

As pointed out above, the presence of alternative methods

of securing the property do not render the inventory

search unreasonable. As the Supreme Court held in

Bertine:

We conclude that here, as in Lafayette,

reasonable police regulations relating to inventory

procedures administered in good faith satisfy the

Fourth Amendment, even though courts might, as

a matter of hindsight, be able to devise equally

reasonable rules requiring a different procedure.”

479 US. at 374

The Court finds that the impoundment and inventory

of the Defendant’s automobile were done in good faith and

pursuant to validly prescribed procedures. The fact that

patrolmen are given some discretion over whether to

impound and conduct an inventory does not render the

search any less permissible, Bertine supra at 479 U:S. at

375.

Even if the search had been conducted with the

purpose of investigation, which the Court has not found,

it remains constitutionally permissible. The Court finds

that the search of Defendant’s automobile complied with

constitutional requirements for the independent and

wholly sufficient reason that there was probable cause for

conducting such a search. As recounted above, Trooper

Diss placed Defendant under arrest after the Defendant

failed to satisfactorily complete the field sobriety test.

This arrest was further supported by the Defendant’s

representation to the trooper that he had consumed some

alcoholic beverages. After placing Defendant into custody,

Diss was authorized to conduct a search of the complete

person of the defendant together with materials within

proximity to the Defendant. The Supreme Court held in

Chimel v. California, 395 U.S. 752, 762-63 (1969):

“When an arrest is made, it is reasonable for the

arresting officer to search the person arrested in

order to remove any weapons that the latter

might seek to use in order to resist arrest or effect

his escape. Otherwise, the officer’s safety might

well be endangered, and the arrest itself

frustrated. In addition, it is entirely reasonable

for the arresting officer to search for and seize

any evidence on the arrestee’s person in order to

prevent its concealment or destruction.”

In New York v. Belton, 453 U.S. 454 (1981) the Court

further clarified this holding. The Court in Belton found

that an officer may search the complete passenger area of

a car at the time of an arrest irregardless of whether the

area was within reach of the Defendant. In Belton the

Court found that a search of a closed pocket of a

defendant’s jacket was permissible even though the

defendant had been placed under arrest, away from the

jacket and did not have access to the jacket.

Upon conducting this lawful search, the trooper

discovered a glass vial with a white powder residue. Such

a finding was wholly consistent with illegal cocaine use.

Moreover, the trooper was further confronted with the

smell of marijuana and the discovery of marijuana in the

passenger compartment of the vehicle. The officer

thereafter had probable cause to believe that contraband

was present in the automobile. In United States v.

Johns, 469 U.S. 478 (1985) the Court found that the

arresting officers had probable cause to conduct a search

after detecting the smell of marijuana:

“After the officers came closer and detected the

distinct odor of marijuana, they had probable

cause to believe that the vehicles contained

contraband.” 468 U.S. at 482

Once the officers had probable cause to believe that

contraband was present they were permitted to search

the entire vehicle. As state by the Supreme Court in

Michigan v. Long, 463 U.S. 1032, 1035 n 1 (1983):

is clear, and the respondent concedes, that if

the officer had arrested Long, for speeding or for

driving while intoxicated, they could have

searched the passenger compartment under New

York v. Belton, 453 U.S. 454 (1981), and the

trunk under United States v. Ross, 456 U.S.

798 (1982) if they had probable cause to believe

that the truck contained contraband.”

The law has long been established that a law

enforcement officer can conduct a search of a motor

vehicle without a search warrant where probable cause

exists to believe that the vehicle contains contraband.

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

the Court held that a search, including the tearing apart

of an automobile seat, without warrant was

constitutionally permissible where the officers had

probable cause to believe that the vehicle contained

contraband. In United Sates v. Ross, 456 U.S. 798

(1982) the Court amplified upon the Carroll decision and

held that such a warrantless search of a vehicle could

include a search of all the vehicle, including the trunk:

“These interests must yield to the authority of a

search, however, which- in light of Carroll- does

not itself require the prior approval of a

magistrate. The scope of a warrantless search

based on probable cause is no narrower- and no

broader- than the scope of a search authorized by

a warrant supported by probable cause.” 456 U.S.

at 823

Upon having probable cause to believe that the

automobile contained contraband, the troopers were not

required to obtain a warrant even after the vehicle had

been impounded, Chambers v. Maroney, 399 U.S. 42

(1972), Texas v. White, 423 U.S. 67 (1975).

Finally, the search could include the trunk area of the

vehicle as there was probable cause to believe that the

trunk contained contraband. In United States v. Johns,

469 U.S. 478 (1985) the Supreme Court permitted search

of certain packages which smelled of marijuana. It also

found that the more complete search of the rest of the

vehicle was valid:

“The officers, however, were unaware of the

packages until they approached the trucks, and

the contraband might well have been hidden

elsewhere in the vehicles. We agree with the

Court of Appeals, see 707 F2d, at 1097, that the

Customs officers had probable cause to believe

that not only the packages but also the vehicles

themselves contained contraband.” 469 U.S. at

482.

The trooper had probable cause to believe tat

contraband was present in the vehicle and to conduct a

search. The search permissibly included the trunk.

The Court thus finds that the search of the vehicle

was permissible inventory search. The Court further finds

that even if the intent of the search was investigatory,

which the Court has found it was not, that the officer had

probable cause in any case to believe that contraband was

present. Irrespective of the inventory search, the troopers

could constitutionally search the vehicle, including the

trunk. For the foregoing reasons the Motion is hereby

denied.

IT IS SO ORDERED.

Judge James S. Gwin

cc. Robert Horowitz

James B. Lindsey

Lawrence R. Smith

APPENDIX B

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO, CASE NO. 89-9330

Plaintiff, JUDGMENT ENTRY

vs.

DOUGLAS A. HARBERT,

Defendant.

This day, August 16, 1990, this cause came on for

hearing before the Court on motion by the State of Ohio

to impose the sentence previously pronounced by the

court pursuant to the August 13, 1990, ruling of the Fifth

District Court of Appeals.

The Court, being fully advised in the premises, finds

said motion well taken.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that the Sheriff of Stark County, Ohio, shall

transport the defendant to the Chillicothe Correctional

Institute in Chillicothe, Ohio, so that he may begin

serving a sentence of an indeterminate term of not less

than three (3) nor more than fifteen (15) years, or untii

otherwise pardoned, paroled or released according to law,

on Aggravated Trafficking, 1 Ct. (R.C. 2925.03A6), and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendant be committed to the

Chillicothe Correctional Institution in Chillicothe, Ohio,

for a determinate term of six (6) months, or until

otherwise pardoned, paroled, or released according to law

on Permitting Drug Abuse in Motor Vehicle, 1 Ct. (R.C.

2925.13A), and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendant be committed to the

Chillicothe Correctional Institution in Chillicothe, Ohio,

for a determinate term of thirty (30) days, or until

otherwise pardoned, paroled, or released according to law

on Improper Handling of a Firearm, 1 Ct. (R.C. 2923.13),

and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendant serve these sentences

consecutively, and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Defendant shall pay a fine in the

amount of $5000.00 on Count One of the Indictment,

monies to be divided between the arresting agency and

the law enforcement agency involved, and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendant serve an actual

incarceration of three (3) years, and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendant receive credit for time

served, and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the automobile used in the commission

of the crime be forfeited to the Ohio State Highway

Patrol, to-wit: 1988 Ford Thunderbird, VIN

1FABP60F2JH242745, and

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendant shall pay the costs of this

prosecution for which execution is hereby awarded.

Judge

APPROVED BY:

ROBERT D. HOROWITZ

STARK COUNTY PROSECUTOR

RICHARD A. NICODEMO

ASSISTANT PROSECUTING ATTORNEY

APPENDIX C

§ 2925.03 Trafficking in drugs.

(A) No person shall knowingly do any of the following:

(6) Possess a controlled substance in an amount equal

to or exceeding three times the bulk amount;

preparation, or substance included in schedule I with the

exception of marijuana or in schedule IT, whoever violates

this section is guilty of aggravated trafficking.

(5) Where the offender has violated division (A)(5) or

(A)(6) of this section, aggravated trafficking is a felony of

the second degree and the court shall impose a sentence

of actual incarceration of three years and if the offender

has previously been convicted of a felony drug abuse

offense, aggravated trafficking is a felony of the first

degree, and the court shall impose a sentence of actual

incarceraticn of five years.

§ 2925.13 [Permitting drug abuse.]

(A) No person, being the owner, operator, or person in

charge of a locomotive, watercraft, aircraft, or other

vehicles as defined in division (A) of section 4501.01 of

the Revised Code, shall knowingly permit such vehicle to

be used for commission of a felony drug abuse offense.

permitting drug abuse, a misdemeanor of the first degree,

and if the offender has previously been convicted of a

drug abuse offense, permitting drug abuse is a felony of

the fourth degree.

§ 2923.16 Improperly handling firearms in a

motor vehicle.

firearm in a motor vehicle, unless it is unloaded, and is

carried in one of the following ways:

(1) In a closed package, box, or case;

(2) In a compartment which can be reached only by

leaving the vehicle;

(3) In plain sight and secured in a rack or holder

made for the purpose;

(4) In plain sight with the action open or the weapon

stripped, or, if the firearm is of a type on which the action

will not stay open or which cannot easily be stripped, in

plain sight.

(F) Whoever violates this section is guilty of

improperly handling firearms in a motor vehicle.

Violation of division (A) or (B) of this section is a

misdemeanor of the first degree. Violation of division (C)

of this section is a misdemeanor of the fourth degree.

APPENDIX D

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. Norman J. Putman, P.J.

Plaintiff-Appellee : Hon. John R. Milligan, J.

: Hon. John R. Hoffman, J.

-VSs-

DOUGLAS A. HARBERT : Case No. CA-8027

Defendant-Appellant

: OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from

Common Pleas Court,

Case No. 89-93309

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

ROBERT D. HOROWITZ LAWRENCE R. SMITH

PROSECUTING ATTORNEY ONE CASCADE PLAZA

STARK COUNTY, OHIO SUITE #1450

Akron, OH 44308

RONALD MARK CALDWELL

Trial & Appellate Counsel

Criminal Division

P.O. Box 20049

Canton, OH 44701

PUTMAN, P.J.

There are no assignments of error listed in the table

of contents in this brief, but we distill from the

arguments that two claims are made.

The first claim is that the trial court erred in

overruling a motion to suppress the fruits of a so-called

“inventory search.” The second is that the court erred in

finding “independent grounds” advanced by the State to

overrule the suppression motion.

We overrule both assigned errors and affirm the

judgment of the Court of Common Pleas.

On careful examination of the record, we find the

judgment appealed from is entitled to affirmance upon

the authority of the case of the City of Xenia v. Wallace

(1988), 37 Ohio St.3d 216, 218, and also United Supreme

Court case of Florida v. Wells (April 18, 1990), U.S. Sup.

Ct. Case No. 88-1835, 47 Crim. L. Rptr. (BNA) 2021,

2021-2022. Upon careful consideration of the record, we

find the search to be both reasonable and authorized by

law.

For the forgoing reasons, both assigned errors are

overruled, the judgment of the Court of Common Pleas of

Stark County, Ohio is affirmed and this cause is granted

to that court for execution of sentence.

Milligan, J. and

Hoffman, J. concur.

IN THE COURT OF APPEALS

FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

a. : JUDGMENT ENTRY

DOUGLAS A. HARBERT :

Defendant-Appellant : | CASE NO. Ca-8027

For the reasons stated in the Memorandum-Opinion

on file, the judgment of the Court of Common Pleas of

Stark County, Ohio is affirmed, and this cause is

remanded to that Court for further execution of sentence.

APPENDIX E

1990 TERM

To wit: December 19, 1990

State of Ohio, ;

Appellee, Case No. 90-1770

v. ENTRY

Douglas Austin Harbert,

Appellant.

Upon consideration of the motion for leave to appeal

from the Court of Appeals for Stark County, and the

claimed appeal as of right from said Court, it is ordered

by the Court that said motion is overruled and the appeal

is dismissed sua sponte for the reason that no substantial

constitutional question exists therein.

COSTS:

Motion Fee, $40.00, paid by Lawrence R. Smith.

(Court of Appeals No. CA8027)

THOMAS J. MOYER

Chief Justice

> OPhP> © PF OP OP

POrPOoO - O& P&

APPENDIX F

Yes, sir, he did.

Okay. And where did you pull in in relation to

that driveway?

My patrol car was positioned right behind him.

And are you familiar with the address of the

drive that the Defendant pulled into?

I believe that the house numbers were 3014, and

that was on Brunnerdale.

Okay, and that was a residence. That was a

single family home in otherwords?

Yes, it was.

And was the Defendant by himself?

Yes, he was.

And what happened after you made, after you

approached him?

Uh, he exited his vehicle and faced the patrol car

and I exited the patrol car and confronted him

and advised him of the reason why he was

stopped.

And what did you tell him?

That he was clocked speeding on Brunnerdale ©

Avenue.

And what was the speed that you had clocked

him at?

69 and I locked him in at 68 and that was a 55

m.p.h. zone.

And that’s using your radar?

Right.

And, okay. What happened after that?

While he was talking to me, a short conversation,

I detected an odor of alcohol and asked him to

have a seat in the patrol car and....

Okay. Go o~.

And that’s where I continued talking to him and

writing up a ticket, a citation for speeding.

Q. Okay. And you said that he had an odor of

alcohol. Did you have any other reason to believe

that he had been drinking, were there any other

_—

independent facts that he had been drinking?

A. Uh, he had stated that he had come from the Pub

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Club where he had had a couple of drinks.

. Did you conduct at any point a field sobriety test?

Uh, before we did that I had also detected an odor

of burnt Marijuana about him. I had asked him if

he had been smoking Marijuana and he had

stated that he had been in the company of some

friends that had been smoking it. And when we

exited the patrol car I showed him some field

sobriety tests that I wanted him to do.

And did you have him do those?

Yes, I did.

And was he able to successfully complete the

sobriety tests that you gave to him?

It was fair.

And at any point in time was the Defendant

placed under arrest?

Yes, he was.

And when was that?

Uh, after I had determined that he was impaired.

And when did you determine that he was

impaired?

It was after the gaze and the stagness and the

field sobriety test outside the patrol car.

Did you handcuff him?

He was handcuffed.

And did you search him incident to that arrest?

Yes.

And as a result of that search, well, let’s go back

a moment. Where did you search him at?

Excuse me.

Where was the search conducted at?

Right in front of the patrol car.

And the patrol car was right in back of the

vehicle that he had been driving?

Right kinda on an angle positioned behind him.

And did you find anything when you searched

him?

Yes, sir, I did.

)

And what did you find?

I had found a clear glass vial, a small one with a

white powder residue on the insides suspected to

be Cocaine.

Q. And where did you find that?

A. It was in one of his pockets.

Q. And other than that did you find any other

contraband on him that you believed to be

contraband?

A. No, I didn’t.

Q. And were you at that time or at any time aware

of the home or the residence that the Defendant’s

car had pulled into?

A. I didn’t know who lived there or in fact that he

did live there.

Q. And did he indicate to you that he had lived

there?

A. He had stated that he had lived there.

Q. Okay. Did anybody from that residence come

outside, anybody else?

A. No.

Q. And did the Defendant approach, at any time

approach the residence as if to go inside or

anything prior to your talking to him?

A. No, they didn’t.

Q. If there had been another passenger in the car,

would that have changed...

MR. SMITH: Objection, Your Honor.

THE COURT: What grounds?

MR. SMITH: Your Honor, it’s speculation, as

to another passenger.

THE COURT: Overruled.

Q. Had there been another passenger in the car

would you have had the car towed. Assuming that

that person was not under the influence of

alcohol?

A. Well, a lot of times, if it was a sober passenger

they would just follow us right down to the Police

Department or come pick the person up after a

breath test if there’s not gonna be incarceration.

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What happened after you called to be towed?

I believe, uh, I had went to the car and started an

administrative inventory.

And why do you do that?

Well, it’s to protect person’s property that belongs

in the car and kinda protects ourselves of

anything being stolen. We have a list of what we

found in the car.

And is that routinely done after a car is towed

whenever a car is towed or...

Yeah, we do an inventory.

And did you find anything as a result of that

search?

Right, I did.

What?

I found some suspected Marijuana which was

tested positive. Uh, I found...

And where was that found?

Excuse me.

Where was that found?

Well, some was underneath the arm rest, some

was in the ashtray and some was in the trunk?

And what else did you find?

I found rather large amount of Cocaine and that

was in the trunk also.

And how did you get in the trunk?

Keys to the vehicle.

And how did you get the keys to the vehicle?

Off the Defendant.

You asked him for the keys or did he volunteer

them?

No, I asked him for the keys.

And did he resist in any way?

No, he didn’t.

And what exactly did he find in the trunk?

Uh, I found a shotgun, a .38 caliber handgun.

No. No, he did not.

Isn’t it a fact that Mr. Harbert was handcuffed

when you took the keys from him?

That’s true.

NR A on ate a

And now, do you remember a preliminary hearing

in which you testified in front of, uh, was it Judge

Fellemth? You testified at a preliminary hearing,

isn’t that correct?

That’s right.

And do you remember me asking you the question

that you didn’t search incident to arrest, but you

searched the car pursuant to an inventory search,

is that correct?

~ THE COURT: Is there some foundation for an

inconsistent statement? He has

made an inconsistent statement

that you bring out of prior

testimony?

MR SMITH: No, I was just asking him if he

remembered the _ statement,

that’s all.

THE COURT: Well, why don’t you ask him

directly?

MR. SMITH: Yes, sir, I will.

And did you search the car pursuant to an

inventory search?

I had searched the car for an administrative

inventory, that’s correct.

Okay. Now you, uh, are there any guidelines for

the State Highway Patrol on administrative

searches?

Uh, I’m not sure if there’s any set forth in policy

and procedure or not.

Excuse me, what was that answer again, please?

I’m not sure if there is any set forth in policy and

procedure. We're told if we are going to tow a car

that we will search the car thoroughly and write

down anything that’s found in the car.

And what are you, what do you understand as an

administrative search, what are the procedures

that you are to follow and what are you supposed

to do?

Well, if I am going to tow a vehicle then I will

write down the contents of the vehicle or where

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the contents were located at, where they were

found at, and secure that vehicle and wait for a

tow truck.

Okay. Now, are you given any directions as to

where to look and what to look for?

Not what to look for, but where to look. We look

in the passenger compartment, the rear area, the

trunk, the glove box. These are all identified on a

25A card.

And to the best of your recollection there is no

policy or procedure for an administrative report

search, is that correct?

Oh, it’s set forth in policy and procedure. I do not

know exactly what is set forth and what it states.

Okay. Now policy and procedure, what is policy

and procedure? Is that a book or a set of

guidelines, I don’t understand what that is.

It’s a set of guidelines that you follow.

Okay. And where are those set of guidelines?

Filed at the State Highway Patrol.

Okay. And do you know if you could get a hold of

those copies of those policy and procedure

guidelines for an administrative search?

They are public record.

Okay. And when’s the last time that you read

them?

I really couldn't tell you.

Okay. A year, two years?

Maybe four.

Four years ago?

Could be.

Okay. And do you know if, what post are you

from?

76.

And where is that located?

12621, that’s Lincoln Way.

And do you know if request was made at that

post whether or not they would have those policy

and procedure guidelines?

I’m sure that they would.

All right. Are you familiar....

NOTE: MR. SMITH HANDED PAPERS AND A

Oro>

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PUBLICATION TO THE COURT

REPORTER TO BE MARKED FOR

PURPOSES OF IDENTIFICATION AS

DEFENDANT EXHIBITS #41, YOU ARE

COMMANDED TO SEARCH by Judge

James W. Bachman. And there is also the

Book YOU ARE COMMANDED TO

SEARCH by Judge James W. Bachman,

Revised in 1986. Uh, both of them in 1986.

Have you ever read those?

No, I haven’t.

And have you read anything similar to these?

I've never seen those before.

And do you know whether a request was made to

the Ohio State Patrol Office where you are

located and that they said that those were the

guidelines that they used? Were they in error?

I do not know. I have never seen those items

before.

Could you tell me what the guidelines of policy

and procedure look like? Does it come in a book?

We are searching a vehicle, okay.

Well, let’s say, do you have any discussions with

officers in command who discuss with you, let’s

say, uh, on given procedures on who should be

towed and searched and who should not. I mean

what of the discretion for the patrol officer? Well,

let me rephrase that, Your Honor, that was kinda

confluted. Do you administratively search all DUI

stops?

No, I do not-

Okay. And do you make some decision on whether

or not to tow or whether or not to search, is that

correct?

I think that there has been a decision of whether

to tow the vehicle and search the vehicle or

whether not to tow the vehicle and not to search

it.

That’s correct. And you made those decisions

based on some criteria?

A. Based on that’s the officers discretion, whether I

want to or whether I don’t.

Q. Okay. What I want to know is what goes into that

decision making process? What determination is

it when you search one car and not another?

What do you use as a criteria?

A. I really have no set standards, nothing that I go

by. It’s a decision I make at the time.

Q. Okay. Then there’s no policy or procedure that

guides you on that individual decision?

Well, you know, it’s, uh, it goes without saying

that if the vehicle is in the middle of the road and

they stop in the middle of the road and there is

no berm, uh, you would, uh, I think you would

actually tow the vehicle rather than having being

there and being a hazard.

Q. And this automobile was in a driveway, is that

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correct.

That’s correct.

Okay. And let’s just step back from this for a

second and describe your, the first time that you

see Douglas Harbert, please?

When I see him or see his vehicle?

See his vehicle.

When he was southbound on Brunnerdale.

Okay, And he was going where?

He was on Brunnerdale southbound.

And you were going how fast?

69 and I logged him at 68.

Okay. And you were going north on Brunnerdale?

That’s correct.

And you were going how fast?

I can not recall that now, it’s been several

months.

Okay. Do you remember what cross street you

happened to pass when you saw him?

I believe it’s Thistlehili or...

Okay. And Thistlehill’s right at the top of a hill,

is it not? Brunnerdale’s an up and down street, is

that correct?

No, I wouldn’t say that’s correct. It all depends on

what part of Brunnerdale yov’re on.

Okay. We’re talking about Thistlehill and that

area right by where Mr. Harbert turned in. And

I think that it’s, uh, Heather, Canterbury,

Thistlehill and the driveway, would those be the

cross streets that we’re talking about?

I’m not, uh, I haven’t been out in that area in a

while, but Thistlehill is before where he turned

in.

Okay. And do you remember if it was on the top

of a hill?

A. I’m not sure if Thistlehill is actually at the top of

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a hill, uh, or on either side of a hill.

Okay. Anyway, when you passed him he was

doing 68 and you were going the opposite

direction, is that right?

He was going 69 m.p.h.

Okay. For the sake of argument, well, no. You

then saw him pull into a private drive and then

make a right into a driveway, is that correct?

He had made a left into a lane, I believe it was.

Idon’t believe that is a private drive. It is a gravel

lane.

And...

OTE: MR. SMITH HANDED THREE

PHOTOGRAPHS TO THE COURT

REPORTER TO BE MARKED FOR

PURPOSES OF IDENTIFICATION ‘AS

DEFENDANT EXHIBITS #3 AND #4.

ALSO #5.

I’m going to hand you what has been marked as

Defendant Exhibit #3. Would you take a look at

that picture, please, Defendant Exhibit #3. What

does that depict.

It looks like a road.

And does it have any resemblance to the area

that we’re talking about?

‘

Well, when I stopped him it was about 1:30, 1:40

in the morning.

If this were his driveway and it was looking

north, I mean, that private drive or that private

road, gravel drive?

Oh, are you saying that this here is his driveway?

That’s that private driveway.

And are you saying that this is Brunnerdale also?

JOTE: PHOTOGRAPH HANDED TO MR. SMITH.

Okay. Now so he pulls into the driveway and he

pulls into the driveway and exits his vehicie, is

that right?

Right.

And he closes the door?

I’m not aware of whether he closes the door or

not. I can’t state for sure.

Okay. And he exits the vehicle and approaches

your car?

He turns and faces the patrol car, that’s correct.

Okay. And the lights are on, is that correct?

They were on when I turned.

And the car’s in the driveway, right?

Are you talking about my red lights?

Yeah, your red lights.

Yeah, you’re right, they were on.

Okay. So with your lights right behind him, the

Prosecutor asked you if he tried to go into the

house, but you were right behind him with the

red lights on, correct.

That’s correct.

So he turned and walked towards you, is that

correct?

He turned and faced me, that’s correct.

And you got out of the car and you had a

discussion between the two cars, is that correct?

Right.

And you indicated that, uh, in one of your reports

that he was polite, is that correct?

Yeah, he was polite.

Okay. So at that point in time you asked him a

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few questions, is that right?

Right.

And at that point in time he tells you that he

lives there, right?

I don’t know if it was then or in the car.

Okay. But he tells you that he lives right there’

Sometime during the evening he told me that he

lived right there.

Okay. Now before he’s arrested he tells you that

he lives there where the car is parked, is that

correct?

That’s correct.

And it’s not on a side street, it’s not on an open

road, it’s in a driveway, correct?

His car was in a driveway.

Okay. Alright, so, you then had him sit in the

front seat, is that correct?

Correct.

And when do you read him his rights.

Excuse me.

Do you ever read him his rights?

After I had determined that he was impaired and

he was going to be going for a breath test.

Okay. Before he’s handcuffed or after?

I believe it was before he was handcuffed.

Okay. Uh, so anyway, I got ahead of the story.

He’s sitting in the front seat and you ask him a

few questions, is that right?

Right.

And one of those questions is you said where do

you live and he said, there.

I had asked him if that was his current address

on his license and he had said no.

And what did he say?

He said, no, that he lived here.

Okay. And that’s what you wrote down in your

police report. Did you go over your police report

today, the incident report?

The case?

Yeah.

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Right.

And on your report you put down that he lived at

Excuse me. Do you place Mr. Harbert in the back

seat? I believe at that time he/s still in the front

seat

Okay. Is he handcuffed?

Um-hm.

Do you seat belt him?

I believe he’s seat belted.

Okay. So he can’t move?

Uh, I don’t believe he could.

Okay. You then exit the vehicle and do you

remember searching it with a flashlight, uh, and

checking the vehicle in question?

Uh, the interior was not locked, so I went and

opened the door, that’s correct, and I used the

flashlight.

Do you remember coming back then to the car

and asking Mr. Harbert for his keys then?

That’s correct.

And then you go up and the first time that you

search into the car and look around, you don’t

find anything right away, right?

I’m not sure if I found something right then or if

it was later.

Okay. Then you come back to the car and Mr.

Harbert is seatbelted and handcuffed, and I

assume that he was handcuffed behind his back?

Is that correct?

Um, that’s correct.

And were his keys clipped to the side or were

they in a pocket?

Uh, I believe that they were in a pocket.

Okay, And so you reached in the pocket and got

his keys out and went back into the car and then

you started to make out your inventory, conduct

your inventory search, is that correct?

I believe when I got his keys that’s when I went

to the trunk.

Okay.

And to complete the search.

Allright. And so when you open the trunk, you,

uh, excuse me, but do you remember if the car

was locked or not?

No, I don’t believe that it was locked. I went back

to get the keys to go into the trunk.

Q. Do you remember testifying in a preliminary

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hearing where you indicated that you thought

that the car was locked?

I don’t recall that.

You don’t recall?

It’s been several months.

Okay. And do you remember if the trunk was

locked?

I believe that the trunk would be locked.

Okay. Do you remember, well, I guess I’ve got it

a little confused. There’s two times that you go to

that car. One, the first time with a flashlight and

look around in the windows, allright. Could it be

possible that the car’s locked and that’s why you

went back to get the keys?

I believe I had the keys for the trunk.

Do you remember going twice to the car?

There would be if I went the first time and came

back and got the keys and then I’d have to go

back up to the car the s cond time.

So it’s possible that the car might’ve been locked?

Uh, the trunk was locked, but the doors, I don’t

believe were locked.

And you found the Marijuana under the armrest?

There was some under the armrest.

Okay. And wasn’t in plain view, was it.

Uh, I don’t believe so. It was just, uh, you lifted

up the armrest.

Well, let’s start when you open the car. I want

you to think back in your memory. You start to

open the car and you're gonna do your

administrative search. What do you do? Describe

for this Court what you do in detail when you

open this car for an administrative search?

A. Well, the first thing I look for is just, you know,

items that can be taken really.

Q. What do you mean?

A. Like CB radiios, radar detectors, and stuff that

can be...

Q. Well what did you see?

A. Well, there was a phone in the car, a cellular

phone. I believe there was a dash-mount radar

detector. And on the floor there was a scanner.

Q. Did you have a piece of paper and are you

marking these things down?

A. These are things that can be taken right away.

Q. Now, in an inventory search it’s to protect

yourself?

A. That’s true.

Q. And the Defendant, right?

A. That’s true.

Q. And you're in there to write down what you find

and what you see, right, so that you’ve got some

record?

A. That’s true.

Q. And you're not writing it down.

A. Not at that time, I was not, no.

Q. Okay. So you’re just in there and you see a kind -

of CB, you said? the second part, say Part B

of this administrative search or whatever it was,

whenever other officers came, who helped you do

this?

A. Uh, there was Trooper Edy, Trooper Hedrick and

Sergeant Eastwood.

Q. Okay. Those people did an inventory of that car

and not you. You were taking Mr. Harbert

downtown, isn’t that true?

A. No, the inventory was already done. They were

waiting on General Towing, which they were

taking a long time to get there.

Okay. How long were you out there?

I believe that the stop was like 1:39 in the

morning and it could’ve been an hour.

Q. Okay. So when the other officers came through

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you went through and inventoried everything that

you found in that car?

I believe everything.

Or was it inventoried when you went through

with the search warrant?

Excuse me.

Or was it inventoried when you went through it

with the search warrant?

No. I had listed things as we were going through

it the first time.

off of that, is that right?

. Yes, that’s correct.

THE COURT: What’s that marked?

MR. SMITH: Defendant Exhibit #6, Your

Honor.

It’s just a rough scale in case

other witnesses would be called.

Q. Okay. Now...

MR. SMITH: If the Court will indulge me just

three or more minutes.

Q. Just want to ask you, real quick, did you ever ask

Doug Harbert if you could search his car?

A. I believe you asked me that before.

THE COURT: Did you or didn’t you?

A. No, I didn’t.

Q. Do you remember asking Mr. Harbert prior to

OPoOyP

searching the car whether or not he had anything

on him or in the vehicle or in the trunk, any

contraband or anything that he shouldn’t have

had?

I believe that’s what I had asked him.

Okay. And his answer was?

I would be no.

But you asked him that, whether or not he had

any drugs in the trunk prior to going into the car?

He said no.

Even when I was patting him down I asked him

if he had anything on him that he should’nt have.

Okay. And...

MR. SMITH: No further questions, Your

Honor.

10:04 A.M. - REDIRECT EXAMINATION BY MR.

NICODEMO:

Q. Officer, when is it that you initially detected an

odor of alcohol, excuse me, not alcohol, but of

Marijuana?

I couldn’t hear the question.

When is it that you initially detect an odor of

Marijuana?

Talking in between the two vehicles.

Okay. He’s outside of the car?

When I first approached, right.

And does he indicate to you that he wasn’t

smoking, but that others were smoking?

He stated that he had been in the company of

some friends that had...

Did he indicate to you where that was?

No, he didn’t.

Did he indicate to you that they were smoking in

his vehicle?

No, he didn’t.

And when you found the Marijuana in the car,

was it in a joint form or was it in a bag or what?

What I found inside the vehicle in the passenger

Right. And my back was to the door.

So other officers were now doing the search and

you were outside in front of the car?

Right. I was searching the hood area of the car.

The hood area of the car for inventory?

Well, people put things underneath the hood too

at times.

Did you find anything under the hood?

. No.

MR. SMITH: No further questions, Your

Honor.

THE COURT: Thank you, Officer.

Any further witnesses.

MR. NICODEMO: No.

THE COURT: Does the defense want to call

>D POP OPP OP OPO > OPOP Or

any witnesses?

MR. SMITH: Yes, sir. At this time the

Defendant, and only for

purposes of this hearing, will

call Doug Harbert.

NOTE: THE DEFENDANT APPROACHED THE

STAND TO BE SWORN BY THE BALIFF

| AT 10:09 A.M.

THE BAILIFF: Would you please raise your

right hand.

NOTE: THE DEFENDANT RAISED HIS HAND

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AS REQUESTED FOR THE OATH.

know whether he took a pad and pencil, do

you know?

I don’t recall.

Did he ever give you a copy of a piece of paper at

any time about the contents...

No.

Let me finish the question. Did he or anybody

else ever give you a list of the contents of your

car?

No, they never did.

Okay. When you left was the car still there?

Yes.

Was any officers still there when you left?

Yes, there was two or three of ’em.

Okay. When you had originally got out of the car,

you had saw the officer’s lights, is that why you

went to the back of the car?

Yes.

Okay.

He pulled in behind me.

Okay. And when you were handcuffed you were

patted down, is that correct?

Yes.

Okay. Was it, let me rephrase that. When you

were told to put your hands on the trunk or

I guess, is because...

I always lock my car.

>OD POPOPOPO> OP OPOPO

How long had you lived at this house?

Oh, about two or three months.

And prior to that where did you live?

At 1214 Village Avenue, S.E., Canton, Ohio.

And was this a home that you had purchased or

were you renting it or...?

I’m renting it, yes.

And you lived there that entire time with your

girlfriend?

Yes.

And does anybody else live there?

No, well, her son.

And...

Her little boy.

And that car, that is your car, is that correct sir?

Which car?

The car that you were in?

Well, I wasn’t in the car, I was outside. Which car

are you talking about? I’ve got two vehicles.

The car that you were driving that evening?

All right, that’s my vehicle.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.