Petition for Writ of Certiorari — Skripick v. Ohio

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OCTOBER TERM 1987

BRIAN SCOTT SKRIPICK,

Petitioner,

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR LUCAS COUNTY, OHIO

George C. Rogers

ROGERS & GODBEY CO., LPA

231 Security Building

243 North Huron Street

Toledo, Ohio 43604

(419) 241-3113

On Behalf of Petitioner

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond, Virginia 23219 (804) 648-3664

QUESTION _PRESENTED

Is the burden on the State to prove

in a suppression hearing that a search

conducted without a warrant and probable

Cause as an inventory was conducted to

mandatory police procedure, rules, regu-

lations, ordinances, or statutes that

leave the officers no discretion to con-

duct the search and to determine its

scope?

IN THE SUPREME CCURT

OF THE UNITED STATES

FOR THE OCTOBER TERM 1987

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

LUCAS COUNTY, OHIO

To The Honorable, The Chief Justice

and Associate Justices of the

Supreme Court of the United States:

Brian Scott Skripick, the

Petitioner herein, prays that a Writ of

Certiorari issue to review the judgment

of the Court of Appeals of Lucas County,

Ohio, entered on October 16, 1987, in

State of Ohio v. Brian Scott Skripick,

C.A. No. L-87-041, for which the Ohio

Supreme Court denied certiorari or

review on February 10, 1988, Case

No. 87-2054.

The Petitioner was stopped on an

anonymous CB radio report that his .

automobile was involved in an auto

%

accident? in another police jurisdic-

tion. Petitioner was arrested for an

outstanding bad check warrant, and his

passenger was directed out of the car

and directed to leave the city. A

police sergeant subsequently searched

the vehicle trunk at the scene and dis-

covered a few baggies of marijuana. At

a motion to suppress hearing, there was

no evidence introduced of any rules and

regulations of the City of Maumee peante~

ing that the vehicle be impounded, and

no rule or regulation that all impounded

vehicles be searched, leaving the offi-

cer no discretion in the matter. The

trial court explicitly found that there

was no rule or regulation shown cover-

ing the impoundment or inventory search

and issued a written opinion granting

the motion to suppress. The Court of

1

No automobile accident was ever

discovered.

Appeals, upon appeal by the State,

reversed the motion to suppress ignor-

ing the express finding of the trial

court and the lack of proof of any rule

or regulation in the record. Petitioner

argued in the Court of Appeals that

Colorado v. Bertine, 479 U.S. 93 L.Ed.

2d 739, 107 S. Ct. (1987) was dis-

positive of the requirement on the

state to show rules and regulations

giving the officers no discretion in

impounding and conducting an inventory

search.

Opinions DdelOW.. ee ccccccees eeseee

JUPISGICEION. -cccccccsessesees

Question Presented... ..eeeseee

Constitution Involved.........

Statement of the Case.........

Reason for Granting the Writ..

Certificate of Service........

Appendix

Finding and Opinion of

Trial COurtccccccccccessces

Opinion and Entry of the

Court of AppealS...cccccccee

Entry of Ohio Supreme Court...

Transcript of Suppression

Hearing... .cceee Trrrererere T

OPINIONS BELOW

The Court of Common Pleas of Lucas

County, Ohio, the trial court, issued

a written decision of its findings and

conclusions in granting the Motion to

Suppress, which appears in Appendix

to this petition, page App. 1. The

Court of Appeals of Lucas County, Ohio,

issued a decision and judgment entry

in overruling the trial court's motion

to suppress which appears in the Appendix

at page App. 28 The Supreme Court of

Ohio declined to review the decision of

the Court of Appeals in a one sentence

entry which appears in the Appendix at

page 48

JURISDICTION

The judgment of the Supreme Court

of Ohio was entered on February 10, 1988

The jurisdiction of this Court is in-

voked under 28 U.S.C. §1257(3).

a

2

QUESTION PRESENTED

The trial court stated at page 10

in regard to inventory procedures:

"...-AS to turnover of the car,

there was sketchy, if conflict-

ing testimony adduced as to

sowe procedure; but as to the

method and scope of the search,

there was no such testimony

and there is no evidence such

a policy even exists (con-

tract this evidentiary dearth

with the detailed Vermillion,

South Dakota standard police

procedure and report form

which were before the court

in Opperman, supra, at 380--

see especially footnote (6).

The inescapable conclusion

is that the Skripick vehicle

was not searched in further-

ance of nor in accordance

with any standard Maumee

police procedure."

The Court of Appeals, ignoring this

determination of the trial court and the

requirement in Colorado v. Bertine,

Supra, said at page 8:

"The record is without evi-

dence indicating that the

search was performed other

than pursuant to standard

procedures of the Maumee

Police Department. Admit-

tedly, the record is silent

as to whether the standard

inventory search procedures

of the Maumee Police Depart-

ment actually exist in written

form."

The record was also silent as to

whether standard inventory procedures

existed at all in the Maumee Police

Department. The question thus presented

is:

Is the burden on the State to prove

in a suppression hearing that a search

conducted without a warrant and probable

cause as an inventory was conducted to

mandatory police procedures, rules, reg-

ulations, ordinances, or statutes that

leave the officers no discretion to con-

duct the search and to determine its

scope.

CONSTITUTION INVOLVED

This case involves the Fourth and

Fourteenth Amendments to the Constitution

of the United States.

STATEMENT OF THE CASE

The motion to suppress hearing was

very brief with the State only present-

ing two witnesses. The entire tran-

script of the proceedings constitutes

36 pages, and it has been included in

the Appendix to clearly show that the

record contains no evidence of any man-

datory inventory procedure, rules, etc.,

of the Maumee Police Department. The

trial court's finding of fact was entire-

ly appropriate, and the Court of Appeals

had no basis to reverse such finding and

to reverse the trial court.

REASON FOR GRANTING THE WRIT

This court has in Colorado v.

Bertine, Supra, clearly established the

Fourth Amendment requirement upon the

State to show that inventory searches

conducted as an exception to a warrant

and probable cause are conducted solely

due to a mandatory policy, rule or regu-

lation, etc., and that the officers have

no discretion in conducting the search

or its extent. The Colorado v. Bertine

case upheld the inventory search because

the mandatory procedures had been shown.

Upholding a police search often does not

send an effective message to state

courts as to the necessary minimum

requirements for a valid search. This

case iS appropriate to show that the

minimum requirements have not been met.

Petitioner requests that this Court

Summarily reverse the Court of Appeals

of Lucas County, Ohio, with the citation

of the Coiorado v. Bertine decision.

Respectfully submitted,

ROGERS & GODBEY CO., LPA

Ca. 7

™ L oa

George C. Rogers

CERTIFICATE OF SERVICE

This is to certify

the foregoing was served

Mail of

County

house,

43604,

1988.

Same to Anthony

Prosecutor, Lucas

Adams & Erie Streets,

on this 7th day

ROGERS &

that a copy of

J.

of Apri

.

7

via First

Pizza,

Class

Lucas

County Court-

m. ¢ .

LOoliead

o, Ohio

ODBEY CO.

» LPA

Georgé C. Rogeys

y

‘

App. 1

IN THE COURT OF COMMON PLEAS,

LUCAS COUNTY, OHIO

STATE OF OHIO, * Case No: CR86-

6942

-vs- *

OPINION AND

BRIAN SCOTT SKRIPICK, * JUDGMENT ENTRY

Defendant. *

This cause is before the court pur-

Suant to the motion of the defendant to

Suppress a quantity of marijuana recov-

ered from the locked trunk of defen-

dant's motor vehicle during the course

of a so-called "inventory" search. A

hearing was held on December 22, 1986,

and both the State of Ohio and the de-

fense submitted post-hearing briefs for

the court's consideration. Several as-

pects of the stop and arrest of the de-

fendant, as well as the search of his

vehicle, bear close analysis. A review

of the facts adduced will help frame the

issues.

SE

App. 2

In the very early morning hours of

November 1, 1986, Officer Boggs of the

Maumee Police Department was on a routine

patrol, monitoring his radio. The Maumee

Police Department Dispatcher relayed a

transmission picked up in turn from the

Toledo Police Department Dispatcher. The

Toledo report quoted an unconfirmed Citi-

zens Band radio transmission just picked

up from an unidentified van driver. The

gist of the C.B. transmission cited by

Toledo was that a dark car bearing out-

of-state license plates had been involved

in a hit-skip/pedestrian accident, and

was headed out the Anthony Wayne Trail

toward the contiguous municipality of

Maumee. The thrice-relayed report heard

by Officer Boggs indicated that the dark

Car was being trailed by a brown van

(driven by the C.B.'er) and it gave the

car's license number. Neither police

dispatch confirmed that any such pedes-

trial accident had occurred. And, in

fact, no such accident had taken place.

Within a few minutes of hearing the

transmission, Officer Boggs saw two

vehicles in tandem on the Trail which

matched the descriptions given. The

Officer fell in behind; he confirmed the

car's out-of-state plate number; he

turned on his car siren _ flasher; and

he pulled the car over. The van, whose

driver had a clear view of the police

stop of the dark car, inexplicitly drove

off into the night and permanent obscur-

ity.

Officer Boggs approached the car,

and asked the defendant-driver about his

route of travel and his activities in

Toledo; the answers were, apparently,

unremarkable. Officer Boggs then made

an inspection of the exterior of

defendant's vehicle; that inspection re-

vealed no fresh marks on defendant's car--

in short, nothing to suggest a recent

accident. Notwithstanding, Officer

Boggs then requested and got identifi-

Cation from both the defendant-driver

and his passenger, and this information

was called in for a routine check. In

a few minutes, the Maumee dispatcher con-

veyed the news that there was an out-

standing bad check warrant on the defen-

dent in Toledo.

The defendant and his passenger were

ordered out of the vehicle and both were

frisked. The frisk turned up a mari-

juana cigarette in the defendant's

possession (no charge was filed), and

nothing of note in the passenger's

possession. Officer Boggs called for

a tow on defendant's car, testifying

at the suppression hearing that the

ee

App. 5

passenger couldn't take defendant's car,

because the Maumee Police Department's

standard police procedure prohibited

giving the car to a non-owner, other than

a spouse. Officer Lindsay, who provided

virtually immediate backup to Officer

Boggs at the site, testified that he

couldn't authorize turning the car over

to the passenger, because he was intoxi-

cated. Interestingly, it was disclosed

that the Maumee Police Department offered

to drive the passenger to the munici-

pality limits and drop him off--inter-

esting because it was by now pushing

3:00 A.M., and Officer Lindsay claims

the passenger was intoxicated.

Thus an “inventory" search was con-

ducted of the defendant's vehicle. The

search was conducted by a Sgt. Zink of

the Maumee Police Department. Sgt. Zink

did not testify at the hearing, but

App. 6

Officer Lindsay stated that the Sergeant

checked the interior of the vehicle

finding nothing. According to Officer

Lindsay, Sgt. Zink emerged from the

vehicle, paused, and then said, "...let's

check the trunk...do we have the keys?"

The keys were recovered from the ignition

and the trunk was opened. The trunk

contained several packages and a clear

plastic bag containing what appeared to

be marijuana, and it is that substance

which forms the basis of the charge

herein, and which defendant now seeks to

Suppress.

In reviewing these facts and the

inferences they compel in this case, it

is the conclusion of the court that the

so-called inventory search of defendant's

locked trunk was unlawful and that,

therefore, the fruits thereof must be

Suppressed. This conclusion rests on

App. 7

two independent bases--one having to do

with the stop and detention of Mr. Skripick

and his vehicle, and one having to do

with the subsequent trunk search itself.

It is the opinion of this court that Of-

ficer Boggs lacked both jurisdiction and

basis for the stop and detention of the

Skripick vehicle. Further, it is the

opinion of this court that Sgt. Zink

lacked sufficient reason to extend the

inventory search to defendant's locked

trunk, even assuming a valid reason to

stop and detain; and, finally that this

incursion into defendant's trunk was not

done in furtherance of any standard

Maumee police procedure.

There is no serious question in this

case that the stop pf the defendant's

vehicle was made by Officer Boggs with-

out a warrant for a supposed offense,

committed outside his presence and,

App. 8

indeed, outside Maumee's jurisdiction.

Further it is clear that the stop in this

case had nothing to do with any erratic

driving of the defendant immediately

prior to the stop. On this basis, assum-

ing the supposed offense was a misde-

meanor, Officer Boggs had no authority

to stop and detain the defendant. State

v. Wallace, 50 Xhio App. 2d 78 (Ct of

App. Franklin County, 1978); Cincinnati

v. Alexander, 54 Ohio St. 2d 248 (1978);

and State v. VanBerg, 44 Ohio Misc. 1l

(Toledo Mun. Court, 1975). Officer

Boggs testified he was afraid a felony

might be involved (aggravated vehicular

homicide?), though even that night this

fear was the rankest form of speculation

and supposition. No confirmation--

official or otherwise--was forthcoming

during the entire period that any

accident took place. And, as we all

App. 9

learned no accident had taken place. The

C.B. report was false.

The stop and detention of the defen-

Gant cannot be defended on the basis of

probable cause, either--a proposition

so obvious that it hardly bears discus-

sion. No one knew of the informant's

reliability or even his identity; there

was no confirmation of the incident

itself; the informant apparently fled;

and, the car bore no signs of having been

in an accident.

Thus, the legality of the stop and

detention devolves to an analysis of

whether there was a reasonably articulable

suspicion sufficient to justify the

seizure of Mr. Skripick and/or his car.

The prosecutor urges consideration of

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

regard, especially as Terry is applied

to vehicles in Adams v. Williams, 407

2

U.S. 143 (1972); U.S. v. Brignoni-Price,

ae ee eee eee)? 6and U.S. v. Cortez,

449 U.S. 441 (1981). Defense counsel

relies on State v. Chatton, 11 Ohio St.

3d 59 (1984) and State v. Frye, 21 Ohio

App. 3d 133 (1985), noting the Chatton

proposition that, without a reasonable

and articulable suspicion of a law viola-

tion, an officer may not stop and request

a license. These cases, in the view of

the court, are all reconcilable and as

applied to the case at bar simply require

a determination of whether all-of the

facts and events leading up to the stop-

ping and continued detention of the

Skripick vehicle provided a reasonable

and an articulable suspicion of a law

violation on the part of the defendant

or his vehicle.

In the court's view, the simple

answer to this question is "no", there

pn

App. 11

was no reasonable and articulable suspi-

cion. The C.B. report itself was thrice-

relayed; nothing was known of the infor-

mant; and 7 corroborating data was

given which might have lent credence to

the report (e.g. a Toledo transmission

such as "...by the way, unit #1 reports

pedestrian injured at Front and Main--

driver left scene"). It is reasonably

likely that a pedestrian accident,

especially a serious one, would receive

some kind of official confirmation or,

at least, notation within a short period

of time, even at 2:30 A.M. Here, some

Significant time had elapsed from the

Supposed incident. Three sequential

radio reports had been given, presumably :

with some time in between. Officer Boggs

testified that five minutes passed from

the Maumee transmission until he sighted

the vehicles. And, it took several

additional minutes for Officer Boggs to

fall in behind the vehicles, check the

plate number, turn on the siren and pull

the car over. Still, no confirmation had

been given; and Officer Boggs did not

follow up with his dispatcher to see if

there was further information available.

We now know to a certainty there

would have and could have been no confir-

mation of a hit-skip/pedestrian accident

because none had taken place. Of course,

Officer Boggs did not know that Novem-

ber lst and had to base his evaluation

of the unconfirmed, anonymous and thrice

relayed hearsay C.B. report on other

facts and inferences. It is at least

arguable that the bizarre and dubious

nature of the report was sufficient to

Sustain a reasonable and articulable

suspicion. Officer Boggs, however, was

privy to other crucial facts which

App. 13

strongly indicated the report was bogus:

first, as noted, ten minutes or more had

passed without further police word or

confirmation; second, the supposedly

public-spirited C.B.'er chose to flee

rather than establish his reliability

by an offer of his assistance or even

just his name and address; and, third,

the Skripick vehicle bore no evidence

of having been in an accident, as Officer

Boggs confirmed in his inspection of the

car's exterior--an inspection compleied

prior to the demand for identification

and the request for a record check.

One can speculate, I suppose, as to

the motives of the sly and shy samaritan

in the brown van. Was his report his

idea of a practical joke? Was it a

response to a real or imagined traffic

Slight by the Skripick vehicle? Was it

deliberate payback for some other

irae iain

App. 14

personal dispute? Or was it simply random

maliciousness? Regardless, it is clear

the report was false when given. And,

as seen, this court is persuaded that the

attenuated nature of the report itself

together with the demonstrably contrary

facts cited fairly screamed “hoax".

As noted previously, the decision

to suppress the evidence in the case at

bar is based independently and severably

on the unlawful stop-detention, and on

the improper inventory search. Paren-

thetically, it can also be noted that,

even assuming a valid stop, there may

have been no need for an inventory search,

because the defendant's passenger was

ready, willing and arguably able to take

the vehicle after discovery of the bad-

check warrant made defendant's arrest

inevitable.

Both officers who testified, however,

would not permit the passenger (a Mr.

App. 15

Bunce) to take charge of the vehicle,

albeit for differing reasons. Officer

Boggs testified that the Maumee police

department had a standard policy which

proscribed the turnover of a vehicle in

this situation to one other than a title-

owner of the vehicle in question, or the

spouse of a title-owner. Officer Lindsay

made no reference to this supposed stan-

dard policy (though clearly Bunce was

neither title-owner nor spouse), and in-

stead testified that Bunce was too drunk

to be entrusted with the car. With _

regard to the Lindsay testimony, he did

state that Bunce was "walking alright";

he did not perform field tests on Bunce;

nor did he arrest him. In fact, as noted,

the officers offered to drive Bunce to

the municipality limits where he would

be dropped off to fend for Himself. Bunce

demurred, and was then given "on-foot"

- mie

App. 16

instructions to an area diner some blocks

away and he left the scene. Remarkably,

the Maumee police at the hearing were

able to offer no information about Bunce

(the only other person they knew had been

privy to earlier activities); in fact,

they barely recognized his name when

quizzed on cross-examination. Also, no

copy of the supposed Maumee procedure

on vehicle turn-over was presented to the

Court, and no overall statement thereof

was elicited.

Before analyzing the purported inven-

tory search of the Skripick locked trunk,

it bears reiterating that this court views

the stopping and continued detention of

the defendant and his vehicle as improper--

especially after it was absolutely clear

the car had not been involved in any

recent accident, and obvious that the

supposed informant had fled. Notwith-

ONAL ALLL POL HEELS EIS ETT

App. 17

Standing, it is the view of this

court that even as to the narrow question

of the inventory search alone, the Maumee

police acted beyond the law, and beyond

their authority.

Because, even if it is assumed

arguendo that the Skripick vehicle was

lawfully within the custody of the Maumee

P.D. up through the point when the warrant

news was relayed, and even if it is

assumed that Maumee had no alternative

but to retain and inventory the vehicle

in conjunction with a tow, the fact is

there are still limits on an inventory

search. South Dakota v. Opperman, 428

U.S. 364 (1976).

Opperman, supra (which involved the

inventory search of an unlocked glove

compartment) articulates the parameters

and purposes of an inventory search.

Opperman clearly establishes that the

iia

App. 18

search's method and scope must conform

to an existing aritculated standard

police procedure for the municipality

in question. Opperman, supra, at 374,

375. Further, it is therein set forth

that the search must be reasonable--

though this normally may be inferred

from conformity with the local department's

standard procedure--and the search may

not be investigatory in nature. Opper-

man, Supra, at 372, 373. Most notably,

Opperman isolates the three purposes of

an inventory search: 1) to protect an

owner's property in police custody; 2)

to protect the municipality against

Claims for lost or stolen property; and,

3) to protect the police from danger.

Opperman, supra, at 369.

When analyzing this case within the

Opperman framework, it is difficult

indeed to justify the extension of the

Ee

App. 19

search into the locked trunk of the

Skripick vehicle. There was no indica-

tion that morning that any property of

the defendant needed greater protection

than would be afforded by a locked trunk.

There was no suggestion that anything

remarkable or of significant value

reposed in the trunk. And, there was

certainly no hint of any lurking danger.

The cumulative weight of these facts calls

into question the reasonableness of the

extension of the search to include the

trunk. And, of course, the reasonable-

ness can neither be inferred nor presumed

by its conformity to a standard Maumee

police procedure in effect on November l,

1986 dealing with the method and scope

of an inventory search. As to turnover

of the car, there was sketchy, if con-

flicting testimony adduced as to some

procedure; but as to the method and scope

App. 20

of the search, there was no such testi-

mony and there is no evidence such a

policy even exists (contrast this evi-

dentiary dearth with the detailed Ver-

million, South Dakota standard police

procedure and report form which were

before the court in Opperman, supra, at

380--see especially footnote 6). The

inescapable conclusion is that the

Skripick vehicle was not searched in

furtherance of nor in accordance with

any standard Maumee police procedure.

And it is equally clear that no extrinsic

facts or circumstances gave the Maumee

officers a reasonable basis for extending

the search into the trunk. Based on

Officer Lindsay's testimony in describing

Sgt. Zink's search in this case, it is

Clear that the decision to search the

trunk was not part of some regularized

procedure, but rather an afterthought.

—

App. 21

In view of the facts of the search, and

its afterthought nature, it is a fair

inference in fact that the incursion into

the trunk was investigatory in nature.

As noted above, Opperman, while

definitive in many respects in the area

of inventory searches, dealt with fact

pattern involving an unlocked glove com-

partment. There are two significant

cases which deal with inventory searches

of locked trunks which should be analyzed

as they bear on the case at bar, speci-

fically, State v. Robinson, 58 Ohio St.

478 (1979) and Cady v. Dombrowski, 413

U.S. 433 (1973).

In Robinson, the defendant was

arrested for a serious traffic offense

and taken into custody. While awaiting

a tow truck, the arresting officer took

a standard Cincinnati P.D. inventory

form and began a methodical search of

App. 22

the vehicle, including the locked trunk.

All standard procedures were followed,

and marijuana was discovered in a plastic

bag in the trunk. Of course, there are

obvious similarities to the case at bar;

but there are also salient and crucial

differences. First, the stop in Robinson

was righteous and routine in sharp con-

trast to the bizarre facts of the Skrip-

ick stop. But more importantly for

present purposes, it is clear that Robin-

son conformed to Opperman dictates

because the Robinson inventory search

meticulously followed existing, articu-

lated and standard departmental procedure.

Here it is almost certain that no such

standard policy exists--certainly none

was introduced and none was mentioned--

and it is beyond question that no such

policy was followed in determining to

extend the search into the trunk.

App. 23

Moreover, as we have seen earlier, there

Was no extrinsic, reasonable basis for

the incursion into the trunk.

Interestingly, Robinson cites Cady.

In Cady, a vehicle was towed following a

serious accident which disabled the

vehicie's driver, an off-duty Chicago

policeman. Existing departmental regu-

lations reeateed that officer to carry

his weapon twenty-four hours a day. An

inventory search of the locked trunk in

Cady produced crucial evidence. But it

was found that the Cady search was con-

ducted in complete conformity with a

then-existing standard police procedure.

Moreover, and significantly, the investi-

gating police in Cady were found to have

a reasonable basis for believing that a

weapon was still in the car, and thus

potentially available to potential thieves

Or vandals. Again, both of these factors

arm missing in the case at bar: Maumee had

no standard procedure, and there wasn't

even a pretext that any procedure was

being followed in effecting the trunk

portion of the search; and, there was no

reasonable basis for the extension of the

search.

In conclusion, it is clear that the

law dictates that the evidence in this

case recovered from defendant's locked

trunk on November 1, 1986 must be sup-

pressed. There was no warrant and no

offense committed within Officer Boggs'

presence to justify the stop. The stop

was extra-jurisdictional as it related

back to the offense in question, however

imaginary it was. There was no probable

cause to believe an offense had taken

place. And, there was no reasonable and

articulable suspicion that either the

defendant or his vehicle were subject

App. 25

to seizure. This court feels that the

unconfirmed and anonymous nature of the

report, standing alone, was sufficiently

questionable to vitiate any reasonable

and articulable suspicion, though here

there was more. Indeed, when the dubious

report is combined with the independent

facts known to Officer Boggs prior to

the request for identification (i.e. no

corroboration; an anonymous and now flee-

ing informant--if he was, in fact, the

informant; and affirmative proof gleaned

from the car itself that no accident had

occurred involving that car, at least),

then all vestiges of the suspicion are

eradicated and it is clear everyone has

beer had. As to the search of the trunk,

it is obvious that the search was not

justified by the extrinsic facts available,

nor was it carried out in conformity to

any regularized procedure.

App. 26

In the opinion of the court, then,

Suppression of the evidence recovered

from defendant's trunk is compelled by

existing law. Likewise, suppression is

mandated by sound public soLiey. To

accept reports such as the one in question

at face value, with no corroboration and

in defiance of countervailing evidence,

would be to subject citizens to police

stops based on rumor, hoax and whim.

To place the aegis of the court on the

sloppy and unjustified Maumee police pro-

cedures in this case would broaden the

notion of inventory searches to include

an investigative function, it would

invite official lawlessness, and it would

seriously erode substantial and long-

standing rights.

JUDGMENT ENTRY

Based upon the courts findings pur-

Suant to hearing, the arguments of

| ee ees

App. 27

counsel, and the post-hearing briefs of

counsel, the Court finds that defendant's

motion to suppress evidence is well taxen,

and the same is hereby granted. It is

therefore ORDERED that all evidence

seized as a result of the search of

defendant's trunk on November 1, 1986

be, and it hereby is suppressed.

/s/ William J. Skow

DATE JUDGE WILLIAM J. SKOW

i

App. 28

COURT OF APPEALS OF OHIO, SIXTH DISTRICT

COUNTY OF LUCAS

C. A. NO. L-87-041

State of Ohio APPEAL FROM

APPELLANT LUCAS COUNTY

COMMON PLEAS

-VS- COURT

Brian Scott Skripick NO. CR 86-6942

APPELLEE DECISION AND

JOURNAL ENTRY

DATE October 16, 1987

This matter is before the court

of the granting of appellee's motion

to suppress evidence. The facts of

the case are as follows.

On November 1, 1986 at approximately

2:30 a.m. appellee, Brian Scott

Skripick, was driving south on a section

of State Route 24 located within the

municipality of Maumee when he was

stopped by Officer Robert Boggs of

inane

App. 29

the Maumee Police Department. Boggs

stopped appellee because appellee's

vehicle appeared to be the vehicle

described by a dispatch received less

that five minutes earlier from the

Maumee Police Department. The dispatch

describing the vehicle was relaying

infromation from the Toledo Police

Department that the particular vehicle

travelling towards Maumee was believed

to have struck a pedestrian in Toledo.

The information from Toledo was based

on an anonymous report from an operator

of a citizens' band radio. The alleged

accident was unconfirmed by the Toledo

police. Upon stopping appellee, it

is unclear from the record as to what

exactly next occurred. It is suffic-

ient at this point of our inquiry to

conclude that in close proximity of

time Officer Boggs requested forms

App. 30

of identification from appellee and

his passenger, performed a rudimentary

"perimeter check" of appellee's vehicle,

and questioned appellee about his recent

whereabouts. Boggs communicated to

the Maumee police dispatcher the

identification information received

from the two men. The dispatcher

reported back that there was an outstan-

ding warrant for the arrest of appellee.

Boggs thereupon arrested appellee and

requested a tow truck for appellee's

vehicle.

Appellee's vehicle was searched

before it was towed away. The search

extended into the rear storage space

area of the "hatchback" styled vehicle

where a quantity of marijuana was

discovered. Appellee was indicted

soon thereafter for trafficking in

marijuana pursuant to R.C. 2925.03(A)

App. 31

(2). Appellee subsequently moved to

suppress the evidence of the marijuana,

Claiming it should be excluded because

it resulted from an unlawful stop and

an unlawful subsequent search.

Agreeing that the evidence should

be suppressed, the trial court stated

that its conclusion rested on two bases:

"***tone having to do with the stop

and detention of Mr. Skripick and

his vehicle, and one having to

do with the subsequent trunk itself.

It is the opinion of this court

that Officer Boggs lacked both

jurisdiction and basis for the

stop and detention of the Skripick

vehicle. Further, it is the opinion

of this court that Sgt. Zink lacked

sufficient reason to extend the

inventory search to defendant's

locked trunk even assuming a valid

reason to stop and detain; and,

finally that this incursion into

defendant's trunk was not done

in furtherance of any standard

Maumee police procedure."

Appellant, state of Ohio, filed

a timely notice of appeal asserting

the following sole assignment of error,

reduced into subparts:

intial eee

App. 32

"THE TRIAL COURT ERRED IN GRANTING

THE DEFENDANT'S MOTION TO SUPPRESS

EVIDENCE.

"A. The Stop And Detention Of

The Defendant's Automobile Was

Legal Pursuant To The Dictates

Of Terry v. Ohio And United States

v. Hernandez.

"B. The Inventory Search Conducted

By The Maumee Police After The

Impoundment Of The Vehicle Was

Legal."

Appellant's first assignment of

error contends that the stopping and

detaining of appellant were constitut-

ional under the progeny of Terry v.

Ohio (1968), 392 U.S. 1. We agree.

Before proceeding to our discussion

as to whether Boggs had a constitut-

ional basis to stop and detain appellee,

we first address the relevancy of stat-

utory limitations on the authority

to arrest to the applicability of the

exclusionary rule. The Supreme Court

of the United States first implemented

the exclusionary rule in U.S. v. Weeks

(1914), 232 U.S. 383, wherein the court

ruled that federal courts must exclude

evidence seized by federal officers

in violation of the Fourth Amendment.

Mapp v. Ohio (1961), 367 U.S. 643,

held the rule applicable to state

Criminal proceedings. The rule is

designed to deter police officers from

obtaining evidence through unreasonable

searches and seizures, and protect

judicial integrity by foreclosing the

judicial forum to such evidence. Terry,

Supra, at 9. Application of the exclus-

ionary rule is predicated on the finding

of an unreasonable search and seizure.

United States v. Calandra (1974), 414

Nevertheless, the trial court

found, and appellee argues, that Officer

Boggs' lack of statutory jurisdiction

5 ee

App. 34

to stop appellee supports the appli-

cation of the exclusionary rule. We

disagree. Absent express statutory

language to the contrary, the exclus-

ionary rule will not be invoked as

the remedy for a police violation of

State statutory law, unless there is

a distinct constitutional basis for

Suppression. See Kettering v Hollen

(1980), 64 Ohio St. 2d 232. Our reading

of the applicable sections of the

Revised Code does not discern an express

authorization of the remedy of suppress-

ion in the case sub judice. Moreover,

we find that the lack of statutory

jurisdiction to arrest does not constit-

ute a distinct constitutional basis

for suppression. Therefore, the issue

of Officer Boggs' statutory authority

to stop appellee is irrelevant to the

applicability of the exclusionary rule.

Tn See

App. 35

Even if the stopping of appellee is

per se contrary to Officer Boggs’

statutory authority, this error does

not justify the remedy of suppression.

Officer Boggs' stopping appellee's

vehicle doubtlessly constitutes a

“seizure” within the meaning of the

Fourth Amendment. United States v.

Hensley (1985, 469 U.S. 221, 226.

Evidence arising from the seizure is

inadmissible if the seizure is “unreas-

onable". Mapp, supra. The court below

found that Officer Boggs' seizure of

appellee was unreasonable under the

Fourth Amendment. We disagree.

Officer Boggs stopped appellee

for the purposes of lavantioution.

Beginning with Terry v. Ohio, the

Supreme Court of the United States

has upheld certain warrantless invest-

igative detentions based on suspicions

a ee ne aa ee

App. 36

less than probable cause as not violat-

ive of the FourthAmendment's proscript-

ion against unreasonable searches and

seizures. In particular, a "Terry-

type" investigative stop will be upheld

if it furthers a governmental interest

and the stop is supported by a reason-

able suspicion based on specific and

articulable facts. Delaware v. Prouse

(1979),440 U.S. 648, 653-655. The

trial court found that Officer Boggs

lacked specific and articulable facts

necessary to support a reasonable

suspicion. More specifically, the

trial court found that an anonymous

citizens' band report of an unverified

"hit and run" traffic accident lackéd

the indicia of reliability to justify

a reasonable suspicion of criminal

activity.

The reasonableness cof a seizure

LL

App. 37

requires a review of all the circumstan-

ces of the particular case. South

Dakota v. Opperman (1976, 428 U.X.

364, 372. "The test of reasonableness

Cannot be fixed by per se rules; each

Case must be decided on its own facts."

Id. (citations omitted.) Although

Officer Boggs' suspiciion was indeed

based ~—— anonymous and unverified

citizens' band report, our review of

the facts finds that a negligible

amount of time passed before he obser-

ved the car described by the radio

dispatcher. This scarcity of time

precluded the possibility of corrobor-

ation. If it is true that Officer

Boggs had relatively little inform-

ation on which to base a reasonable

suspicion, it is equally true that

he had little time to act. But for

his stopping the suspect vehicle, a

crime might go unsolved. In support of

Officer Boggs' actions, we are reminded

of the statement that "[t]he Fourth

Amendment does not require a police-

man who lacks the precise level of

information necessary for probable

Cause to arrest to simply shrug his

shoulders and allow a crime to occur

Or a Criminal to escape." Adams V\V.

Williams (1972), 407 U.S. 143, 145.

Under the exigent circumstances

of this case, we find officer Boggs'

stopping of appellee reasonable.

The stop was in furtherance of the

governmental interests in "solving

Crimes and bringing offenders to jus-

tice." Hensley, supra, at 229. More-

over, Adams, supra, tells us that

"(a] brief stop of a suspicious indiv-

idual, in order to determine his ident-

ity or to maintain the status quo

momentarily while obtaining more inform-

ation may be most reasonabie in light

of the facts known to the officer

at the time." Id. at 146. We believe

this passage properly applies to the

facts in the case sub justice. There-

fore, we find that under the time

constrained circumstances of the present

case, the anonymous and unverified

citizens' band report provided suffic-

iently specific and articulable facts,

forming a proper basis for a reasonable

Suspicion.

Finding the initial stop lawful,

we now review the ensuing detention

for constitutional defects. Once

a "terry-type" stop is effected, invest-

igation must be pursued diligently

during a period of time that is tempor-

ary in duration. United States v.

Place (1983), 462 U.S. 696, 709.

A review of the record finds no viola-

tion of this rule. Officer Boggs'

actions in the case sub justice

appear "*** reasonably related in

scope to the circumstances which justif-

ied the interference in the first

place." Terry, supra, at 20.

Based on the foregoing, we find

that the stop and detention of appellee

were lawful and they therefore provided

no basis for the remedy of suppression.

Accordingly, we find appellant's first

assignment of error well-taken.

Appellant's second assignment

of error contends that the ‘search

of appellee's vehicle which produced

the marijuana was lawful. We agree.

Once the warrant was verified and

appellee was arrested, a tow truck

was summoned for appellee's vehicle,

presumably for purposes of impounding.

App. 41

This course of action conformed to

standard procedures of the Maumee

Police Department. The trial court

faulted the Maumee police for deciding

to impound the vehicle instead of

turning it over to appellee's passen-

ger, who was "*** ready, willing,

and arguably able to take the vehicle

**x*" Nevertheless, "[t]he real question

is not ‘what could have been achieved, '

but whether the Fourth Amendment reg-

uires such steps." Illinois v.

Lafayette (1983, 462 U.S. 640, 647.

We find that the Fourth Amendment

did not reguire turning the vehicle

cver to appellee's passenger. Moreover,

we find the towing of appellee's vehicle

a very reasonable response in view

of the circumstances. The car was

illegally parked. The putative owner

of the vehicle was under arrest and

thus incapable of driving the vehicle

away. Standard procedures of the

Maumee Police Department prohibited

turning the vehicle over to an individ-

ual not a titleholder of the vehicle

or the spouse of such a titleholder.

Therefore, we find that the towing

of appellee's vehicle was lawful.

The vehicle was searched before

it was towed. The area searched includ-

ed the rear storage space of the “hatch-

back" styled vehicle. The United

States Supreme Court "*** has consist-

ently sustained police intrustions

into automobiles impounded or.otherwise

in lawful police custody where the

process is aimed at securing or protect-

ing the car and its contents." Opperman,

Supra, at 373. Searches carried out

for such administrative caretaking

purposes are commonly referred to

as “inventory searches." See Opperman,

Supra. Inventory searches are justified

by the need to protect the owner's

property while it remains in police

custody; to protect the police against

Claims or disputes over lost or stolen

property; and to protect the police

from potential danger. Id. at 369.

(Citations omitted.) The Supreme Court

of this state has interpreted Opperman

to hold that "*** a routine inventory

search of a lawfully impounded auto-

mobile is not unreasonable in the

meaning of the Fourth Amendment when

performed pursuant to standard police

practice, and when the evidence does

not demonstrate that the procedure

involved is merely a pretext for an

evidentiary search of the impounded

automobile." State v. Robinson (1979),

55 Ohio St. 2d 478, 480.

App. 44

Based on our readings of Opperman,

Supra, and Robinson, supra, and applic-

ation of these decisions to the case

Sub judice, we find that the search

of appellee's vehicle was lawful.

The search occurred while the vehicle

was in lawful custody of the Maumee

Police Department. The search was

aimed at securing or protecting the

vehicle or its contents. As Officer

Lindsey explained at the suppression

hearing, «*** it's customary that

we [conduct inventory searches], because

we've had alot [sic] of problems where

defendants later on say, ‘well, I

had this in my car and had this in

my car and it's -- it's not there.'"

The record is without evidence indicating

that the search was performed other

than pursuant to standard procedures

of the Maumee Police Department.

App. 45

Admittedly, the record is silent as

to whether the standard inventory

search procedures of the Maumee Police

Department actually exists in written

form. The trial court seemed to view

this as a fatal defect. We do not

share this belief. The United States

Supreme Court has stated that conducting

protective searches in accordance

with standard procedures is but one

factor "*** tending to ensure that

intrustion [is] limited in scope to

the extent necessary to carry out

the caretaking function." Opperman,

Supra, at 375. (Citation omitted).

Nevertheless, the court below appears

to believe that mere failure to produce

the standard inventory search procedures

in written form is sufficient to render

the inventory search unlawful. In

review of the liberal language of

ae

Opperman, supra, we find that the

trial court's belief is unnecessarily

erroneously narrow. Lastly, we find

that the record is without evidence

demonstrating that the procedure involved

in the case sub judice is merely a

pretext for an evidentiary search.

Based on the foregoing, we find

that the search of appellee's vehicle

was lawful and that it therefore provi-

ded no basis for the remedy of suppress-

ion. Accordingly, we find appellant's

second assignment of error well-taken.

On consideration whereof, this

court reverses the decision of the

Lucas County Court of Common Pleas

and this case is remanded to said

court for further proceedings not

inconsistent with this decision. Costs

to abide final determination

App. 47

A certified copy of this entry

shall constitute the mandate pursuant

to Rule 27 of the Rules of Appellate

Procedure. See also Supp. R. 4, amended

1/1/80.

Peter M. Handwork, P.J.

PRESIDING JUDGE

John J. Connors, Jr., J.

JUDGE

Alice Robie Resnick, J.

CONCUR.

JUDGE

App. 48

THE SUPREME COURT OF OHIO

COLUMBUS

State of Ohio, : 1988 TERM

Appellee, : To wit:

Vv. : February 10, 1988

Brian Scott Skripick, : Case No. 87-2054

Appellant. : ENTRY

Upon consideration of the motion for

leave to appeal from the Court of Appeals

for Lucas 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 sub-

stantial constitutional question exists

therein.

COSTS :

Motion Fee, $20.00, paid by Rogers

& Godbey Co., L.P.A.

App. 49

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

I, Marcia J. Mengel, Clerk of the

Supreme Court of Ohio, do hereby certify

that the foregoing order was correctly

copied from the records of said Court,

to wit, from the Journal of this Court.

IN WITNESS WHEREOF, I have hereunto

subscribed my name and affixed the

seal of said Supreme Court, on this

10th day of February, 1988.

App. 50

On Behalf of the State of Ohio:

George J. Conklin, Ass't Prosecutor

On Behalf of the Defendant:

George C. Rogers, Esq.

THE COURT: Call your first

witness then, Mr. Conklin.

MR. CONKLIN: State would call

Officer Boggs.

ROBERT BOGGS

Having been first duly sworn, as provided

by law, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. CONKLIN:

QO Please state your full name for the

record.

A Officer Robert Boggs.

Q And where are you employed?

A City of Maumee, Division of Police.

Q And in what capacity do you serve

with the city police division?

A Road patrolman.

Q And were you so employed in that

Capacity on November lst of 1986?

A Yes, I was.

Q And what were your duties that

App. 51

day?

A Patrolling the road.

Q And what were your hours of

work that day?

A We were working the night shift,

from 11:00 to 7:00 in the morning.

Q Okay. Were you working with

anyone or were you working alone?

A Single car.

Q Okay. And you were working in

an automobile, is that correct?

A Yes, sir.

Q If I could direct your atten-

tion to approximately 2:30 to 2:45 in

the morning of November lst of 1°36,

what, if anything, unusual occurred at

that time, that date and time?

A We received a broadcast from

Our dispatcher that had been relayed to

them, the best of my knowledge, from

Toledo that a C.B. report had stated

that an automobile was involved in a hit-

skip of a pedestrian down in Toledo and

believed to be heading out towards

Maumee.

A description of the car was

given, and the vehicle that had called

this in was a van that was following the

a

App. 52

Car, talking on the C.B. to some police

division down in Toledo.

Q All right. Do you know whether

Or not they gave any further descrip-

tion of the automobile?

A They gave a license plate num-

ber. The color of it was a dark vehicle.

They stated it was a Chevrolet. I don't

remember the numerical numbers right now,

but it was an out-of-state plate, I1li-

nois I believe.

Q Okay. Do you recall whether or

not the van was described?

A The van was described as a dar-

ker two-tone, I believe.

Q Okay. In reference to "Headed

out to you," what do you mean by that?

A They described it as going out

Route 24, which is the Trail, a main

junction from Toledo to Maumee, and

Toledo had been dispatched on the call.

We were to be on the look-out

for this vehicle, and I just happened to

be about a street or so away from the

Trail at the time of the broadcast, so

I went over to the Trail area and

shortly thereafter spotted the suspect

Car and van.

App. 53

Q Okay. Did they indicate when

this particular hit-skip may have

occurred?

A It was in the broadcast that

something just had happened.

Q Okay. And how long after you heard

the broadcast did you observe the

vehicles?

A I'd say a matter of minutes,

probably five minutes or less.

Q Okay. And at that time, what

did you see and where did you see it?

A I first noticed the suspect

vehicle -- I had come down on Gibbs to

the Traii heading towards Conant. The

vheicle turned left onto Conant Street

heading south, so I proceeded down there

and was able to get in behind the sus-

pect vehicle, ascertained that the

match-up of the license plate given that

I had written down was in fact the

vehicle.

I called out I had the suspect

vehicle spotted and was going to pull

it over. The vehicle then proceeded

to turn over into the 100 block of West

Broadway, where it then came to a halt.

Q Okay. And is this all located

App. 54

in Maumee, Lucas County, Ohio?

A That's correct.

Q Okay. And what about the van?

A - The van, when I first saw it, I

lost as far as contact with it once I

saw the suspect vehicle. If it was be-

hind me it was probably several vehicles

behind or so.

I know that when I was out of

the car and was talking with the defen-

dant that a van did go past me, which I

believe to be the same van.

Q Okay.

A I was unable to get a license

plate of the van.

Q When you originally saw them,

were they traveling in tandem?

A No, but I knew that there was a

van behind the vehicle that had called

out.

Q Okay. You recognized that van

as being the one that was involved?

A It fit the general description,

that's correct.

Q And what was the approximate

time of this stop?

A Early morning hours; probably

2:30, 3:00 o'clock, somewhere in that

App. 55

time frame. I don't recall exactly.

Q Okay. What happened after you

stopped the vehicle?

"The Transcript continues from

Page 6 to Page 8 there being

no Page 7.

A I approached the vehicle,

talked with the driver and advised the

driver why I was there, what my purpose

was, and tried to ascertain whether or

not he had been down in Toledo, what his

general direction of flight was, and I

started looking at the outside of the

vehicle to ascertain if there -- there

was any damage.

I had asked for his identifi-

Cation and that of the subject that was

with him and had proceeded doing identi-

fication checks on these people, as they

did have out of -- out of plate --

Q Out-of-state plate?

A Out-of-state plates, yes.

Q Okay. And what happened next?

A At some point in time while

App. 56

looking the vehicle over, the radio dis-

patcher ascertained that there was a

warrant out for the defendant from Toledo

courts, and I called out on the air for

a backup at some point in time.

I don't remember the exact se-

quence, but I'm sure that once I knew

that there was a warrant out I had re-

peated for a backup, and Officer Lindsay

arrived on the scene within probably a

matter of seconds or so of that request.

I had the defendant out of the car. I

could detect he had alcohol about his

person. I talked to him about that, and

once I knew that there was a warrant I

proceeded to frisk him.

Q Okay. You conducted a frisk at

that time?

x Once I knew there was a warrant

on him, that's correct.

Q Okay. And after you conducted

that frisk, what else happened?

A Okay. In the process of doing

the frisk I discovered he was wearing

two jackets, one over the other. I

found an object called -- had the name

"rush" on it, some type of a little

cylindrical-type bottle that had the

App. 57

name "Rush" on it.

He had a large amount of keys on

him, I believe 19 in total. There was

also a substance that appeared to be --

looked to be that of a joint on him, and

I questioned him about that just briefly

and advised that due to the fact that --

I think about this time I got the con-

firmation on the warrant from Toledo.

I explainec to him the proce-

dure that was going to be trans --

would be followed in regards to that, in

regards to the warrant, and that the

joint would be disposed of along with

the Rush, and he had no objections to

that.

Q Okay. And what happened next?

ay When the information regards to

the warrant on him came back and the in-

formation regards to his friend that was

with him came back, his friend was found

to be clean, no warrants or anything.

He was advised to leave the area and get

himself a cab and be on his way.

Q He did that?

A Which he did, he did leave the

area.

Q What about the defendant and his

ne

App. 58

automobile?

A Once the warrant was con-

firmed a tow was called, I requested a

tow for the automobile, and a tow was

indicated to be in route. The defen-

dant was then placed in custody. After

the search and after the confirmation

and that, he was -- he was placed into

custody, and at that point in time I

transported him to the station, where

Toledo then came to pick him up.

Q Okay. Did you have any dis-

cussions with the defendant concerning

contents of the automobile?

A No, Sir. He did make a comment

to the effect it was his son's birthday;

that the reason he was in town was that

he was separated from his boy and he was

in on visitation to see his child and

he had some packages for his son.

Q Okay. So he had some gifts in

the car?

A That's correct.

Q Okay. And were you present at

any time when the automobile was

searched?

A No, I was not. I would have

been with the defendant, transporting

aia i ill

him back to the station.

Q Okay. When you asked the

individual for identification, did he

produce a driver's license and regis-

tration?

A He produced a driver's license.

I don't recollect the part about the

registration offhand.

MR. CONKLIN: I have

nothing further of this witness,

Your Honor.

THE COURT: Mr. Rogers.

CROSS EXAMINATION

BY MR. ROGERS:

Q Officer Boggs, this call of the

alleged hit-skip, did you ever do any

follow-up, was there ever any hit-skip

found to have taken place?

A. Not that I'm aware of, no.

Q Okay. And when you arrested him

you certainly weren't arresting him for

a hit-skip, was that the case?

A I arrested him based on the

Toledo warrants.

Q Okay. You arrested him on the

Warrants for bad checks?

A That's correct.

Sa

App. 60

Q Okay. You actually didn't even

have probable cause to arrest him on the

hit-skip, did you, in your opinion?

MR. CONKLIN: Objection.

THE COURT: Sustained.

BY MR. ROGERS;

Q Now, I think I heard you say

that the hit-skip was supposed to have

taken place in Toledo, is that correct?

A That's correct.

Q Okay. And didi you believe that

to be a felony or misdemeanor?

MR. CONKLIN: Objection,

Your Honor.

THE COURT: Overruled.

A I really didn't ascertain a tag

on it per se one way or the other. It

was a pedestrian was struck, so I didn't

know if the pedestrian was alive or dead

Or not. I did not know at that point in

time what I had.

Q Okay. Now, you were stopping

this car based upon this C.B. call that

had been made to Toledo about a hit-skip?

A That had been relayed to us,

that's correct.

Q Okay. And did I understand

correctly that the C.B. call was sup-

posed to have come from a brown van?

A That's how I understood it to

be, that's corrrect.

Q And when you’ stopped this car

the brown van didn't stop, it left the

scene.

A That is correct, it went past my

location and continued on.

Q Now, was the brown van in a

position where obviously it would have

seen you make the stop of this vehicle?

A Went directly past my location

when I was out of the vehicle, that's

correct.

Q And you had your lights flash-

ing?

A That's correct.

Q Okay. And you say that when you

got out you took a look at the vehicle to

see if there was any damage to the

vehicle?

4 I did a perimeter check, that's

correct.

Q Okay. Did you discover any dam-

age to the vehicle?

A As I recall, there were a few

marks on it and that, but I did not feel

Sn ee in

App. 62

them to be tied into what I believed to

be an accident at that time, but I did

check.

Q You say there was a second per-

son with Mr. Bryan Skripick. Who was

that person?

A It was a friend of the gentle-

man. I don't recall his name right now.

Q All right. But you did _a check

on him and he came back to be clean, no

warrants or any reason to arrest him?

A That's correct.

Q Now, didn't he in fact ask to be

able to take Bryan Skripick's car?

4 He might have asked, but he was

in the same state of potential intoxi-

cation from the ability to drive as the

other, as I recall, and the status check

on him was he did not have driving

privilages.

Q Well, you have a copy of that

status check?

A No, I would not have it. ‘

Q Okay. So you're saying the

thing came back he didn't have driving

privileges?

A I think I might be incorrect,

but from the standpoint of the alcohol

App. 63

consumed by the two of them I felt

neither was in a potential position to

be able to drive.

Q So you told him he couldn't take

this car. Now, did Bryan also say, "I

want to give him the keys. Let him take

the car with him."?

A No.

Q Bryan didn't say that?

A No.

Q You didn't charge this person

with intoxication or disorderly conduct?

A Which person?

A Kevin Bruce, I guess, the one

who was the passenger.

A No, I advised him where a coffee

shop was and made a suggestion that he go

have a cup of coffee.

Q What was the necessity to take

the vehicle into custody of the Maumee

Police Department?

4 Because the subject was

arrested on a Toledo warrant, and once I

arrest a subject I'm responsible for the

Car and its contents, and it's normal

procedure that we then call a tow.

Q Now, do you have written pro-

cedures and guidelines in the City of

App. 64

Maumee regarding that for the police

department?

A Yes, we do, written procedures.

Q And do you have any of those

with you today?

4 No, I don't.

Q And relate to us procedures in

regard to impoundment of motor vehicles.

A Excuse me? I missed the first

part.

Q Paraphrase what those procedures

require.

A Well, I've been with the depart-

ment over 1l years now, and I just know

that when we arrest somebody we call for

a tow, a police tow, and it's held in

police compound because we, the officers

who place that subject under arrest, are

now responsible for those contents.

As far as a section number or

anything like that, I couldn't quote you

that. I just know from 1l and a half

years of doing police work in Maumee

that's how it has always been done.

Q Then you don't really recall

whether in fact there is a written pro-

cedure that says you will do it that way,

it's just the way it's always been done?

App. 65

A To the best of my knowledge in

eleven and a half years. When I went

through training there was some procedure

on it.

Q Does that procedure say anything

-- or are you given any discretion, to

your knowledge, as to whether you can

leave that vehicle in the accompanyment

of another person present in the vehicle,

Or is there any discretion given to you

in regard to that?

A As far as if I were to turn the

vehicle over to somebody one I've arres-

ted him?

Q Sure, other persons in the

vehicle once the driver is arrested.

A If he were the owner of the

vehicle I might have the discretion to be

able to turn it over to a fellow owner of

the vehicle. If he was married and his

wife were there, that would be my judg-

ment call then, but to turn the car over,

I would never turn that car over to some-

body who was not registered on the regis-

tration as being the owner of the car, no,

I would not, even if it were a friend.

Q ° Was this vehicle in a position

where it was unlawfully parked?

App. 66

A Where it was sitting in the

street, that's correct.

Q It was?

A Yes, it was, in the middle of

the roadway in front of a school.

Q When you stopped this car you

had no knowledge of any misdemeanor

traffic offense occurring in your

presence?

A That's correct. I strictly

stopped him based upon the report from

the dispatcher.

Q How long did this stop take be-

fore your backup arrived?

4 I would say maybe we're talking

five to six minutes maybe, maybe less.

Q He wasn't free to leave the area

once you had stopped him and started

asking him questions, is that correct?

A No, he was not at that point in

time free to leave. We were discussing

whether or not he had been involved in

a hit-skip, and I was questioning his

passenger also, comparing stories of the

two as to where they had been and where

they were headed.

Q Well, up to the time that you

asked the driver for a copy of his

App. 67

driver's license, did you have any evi-

dence that- a hit-skip in fact had

occurred other than this radio broadcast?

A No, I wouldn't have, because at

that time it was dark, and until I had

gotten out of my vehicle and physically

started going around and looking at the

automobile for damage there was no way I

could have ascertained that.

Q When you asked the -- okay. What

did you do when you got out of your

police vehicle and went up to this car

that you had stopped and pulled to the

side?

A I asked for identification,

driver's license, and explained why I

was there.

Q Did you also take a brief 100k

at the outside of the vehicle as you

Came up to it?

A The only side I would have seen

would have been the driver's side.

Q So then you asked him for what?

A Identification.

Q Okay. And you asked the passen-

ger as well?

A Yes.

Q What crime was the passenger

App. 68

suspected of?

A None whatever. I just wanted to

know who he was.

Q Then what did you do after they

gave you their license?

A Did a check on them. I gave the

information back to the dispatcher.

Q Then what did you do?

A Started looking at the outside

of the vehicle. I don't recall, but at

some point in time I know the defendant

was with me, because I did find some

areas on the car that had either hit or

struck or something and questioned him in

regards to the marks that I had found.

The information on the broadcast did not

specify where on the car the subject

would have been run down, so I know I

was totally in the dark about that.

Q At some point after that you got

another radio call about the warrant

being out for the defendant?

A Yes.

MR. ROGERS: All right, I

have nothing further.

MR. CONKLIN: Nothing fur-

ther of this witness, Your

Honor.

App. 69

THE COURT: You may step

down, Officer Boggs.

THE WITNESS: Thank you.

MR. CONKLIN: Call Officer

Lindsey.

ROBERT LINDSEY

Having been first duly sworn, as pro-

vided by law, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. CONKLIN:

Q Please state your name for the

record.

fy Robert Lindsey.

Q And where are you currently em-

ployed?

A City of Maumee.

Q And in what capacity do you

serve with the City of Maumee?

A Police officers.

Q And how long have you been

employed in that capacity?

A About five years.

Q And were you so - -

MR. ROGERS: Your Honor,

before we continue on further, I

guess I would like a separation of

7 App. 70

witnesses.

MR. CONKLIN: OKay. I have

no intention of calling any further

witnesses that may be involved in

trial, but if you'd like them

separated --

MR. ROGERS: Yes, please.

THE COURT: All right, the

motion will be granted. All those

who are in the courtroom who anti-

Cipate being called as witnesses

either in the balance of this hear-

ing or in the trial, please depart

the courtroom, except for the chief

investigating officer, and please

make yourselves available in the

lobby on the fourth floor out here

in order that you might be called if

needed as witnesses in this hearing.

MR. CONKLIN: I would indi-

cate that Detective Ferraro will be

remaining as a representative of

the - -

THE COURT: All right.

MR. CONKLIN: -- Maumee

Police Division.

THE COURT: Proceed.

BY MR. CONKLIN:

App. 71

Q And were you so employed in

your capacity as a police officer on

November the lst of 1986?

“A Yes, I was.

: * And what shift were you working

that day?

A Midnight shift, 11:00 to 7:00

A.M.

Q And what were your duties that

day?

A Patrolman.

Q And were you in an automobile?

A Yes, I was.

Q And were you working with any-

one?

A No, I was not.

Q And if I could direct your atten-

tion to between the hours of say 2:30

and 3:00 o'clock in the morning, what, if

anything, unusual occurred at that time?

A ~ Well, I had just backed up

Officer Boggs on a traffic stop.

Q Okay. And do you recall where

that was?

A Yes, in the hundred block of

West Broadway.

Q And that was in Maumee?

A Yes, sir, it was.

App. 72

Q Okay. And could you describe

what you saw when you arrived upon the

scene?

A Well, at that time Officer Boggs

was behind another vehicle, a Chevy Cita-

tion I think it was, and the defendant

was out of the vehicle at the time.

Q Okay. And when you say the

defendant, who are you referring to?

A The subject in the black leather

jacket.

Q Okay.

A Sitting right there.

Q Okay. And that was the individ-

ual who was outside of the car with the

police officer?

A Yes.

Q And what happened next?

X Well, at the time Officer Boggs

waS waiting for confirmation on a war-

rant from Toledo when I pulled up.

Q I see. Then what happened?

A Okay. And I got out of the car,

and Officer Boggs began to pat the driver

down. ‘a

Q Okay. And the driver being the

individual you've identified earlier?

A Yes.

App. 73

Q What happened next?

A, Officer Boggs found a bottle of

rush on him and also a small -- well,

what was believed to be a joint.

Q Okay. And what happened after

the*?

a Well, we waited. Officer Boggs

crumpled up the joint and took the --

placed the bottle of rush in his pocket,

and then we waited for confirmation on

the warrant.

Q Okay. Did that eventually come?

Q Yes, it did.

Q What happened after that?

My I went with Officer Boggs and

placed the defendant inside the back seat

of Officer Boggs’ car.

Q Okay. And did Officer Boggs

transport the defendant to the best of

your knowledge?

A Yes, he did.

Q Now, what happened to the defen-

dant's automobile?

A Well, during this time Sargeant

Zink had showed up on the scene also.

Q I see.

M And as we were placing the

defendant in his vehicle Sergeant Zink

App. 74

Started the -- the search of the vehicle.

Q Okay.

A The front and back seat.

Q Okay. And for what purpose was

the search being conducted, if you know?

A Well, it's customary that we do

it, because we've had alot of problems

where defendants later on say, "Well, I

had this in my car and had this in my car

and it's -- it's not there." So, we try

to do a kind of like an inventory search,

just for our minds, in case someone

later says they had this in their car,

and then we can say no, he didn't.

ia Okay. And the vehicle was going

to be towed?

A Yes, it was.

Q And impounded by the police, is

that correct?

A Yes.

Q And you wanted to search the car

to ascertain what the contents of the

vehicle was?

A Yes.

Q And what happened next?

A I walked back after I placed

the defendant in Officer Boggs' car, and

as he was leaving I walked back up to

App. 75

the -- to the suspect's vehicle, and

Sergeant Zink said -- we decided to look

in the trunk.

Q Okay.

A He had already looked in the

front and back seat.

Q Okay. What kind of vehicle was

this, was there a traditional hood,

passenger compartment, trunk?

A No, it was a hatchback.

Q Okay. And so when you refer to

the trunk you're referring to opening

the hatch area?

A Yes.

Q What happened next?

A We took the keys, opened up the

trunk, or the hatchback, and as we did

we noticed several things; a brown -- or

a dark, grey suitcase, some gifts on the

right-hand side, and on the left of the

Suitcase was a yellow bag and also a

Clear plastic bag, which appeared or

looked to have a green vegetable sub-

stance I believed to be marijuana.

Q Okay. And were those items

seized at that time?

A Yes, they were.

Q Okay. And did you inventory the

ee

App. 76

vehicle further to ascertain what the

contents of the vehicle was?

A Yes.

Q Okay. Was the vehicle even-

tually towed?

A Yes, it was.

Q Okay. Were you present during

any sort -- or during any time that

Officer Boggs was having a conversation

with the defendant?

A Yes.

Q Okay. And could you relate

what, if anything, was said at the time

that you were there?

A Nothing out of the unusual that

was Said.

Q Okay. And when you searched

through the vehicle you weren't speci-

fically lcoking for contraband, were you?

A No.

Q Let me ask you this; did you

ever hear any radio broadcasts that

evening?

A Yes, I did.

Q Okay. Did you hear any referring

to a pedestrian hit-skip accident occur-

ring in Toledo?

A Yes.

a

App. 77

Q Okay. And do you recall what

the contents of that particular radio

broadcast was?

A Well, it came from Toledo

through a C.B. report that a pedestrian

had been struck; that there was a van

following the suspect vehicle and -- and

they were heading towards Maumee on the

Trail.

Q Okay. Did they give any indica-

tion as to when this would have occurred?

A Well, to our understanding, it

just had happened.

Q Okay. Did they indicate whether

Or not -- did they give any further

description of the automobile and van in-

volved in reference to license plates and

description?

A They gave the license plate of

the vehicle, I know the van was a -- was

a brown two-tone.

Q Do you recall anything else con-

cerning that original broadcast?

A Not that I can recall.

Q Okay. When the vehicle was on

the street and you were about to have it

towed and impounded do you recall

whether or not it was in a position where

App. 78

it was legally or illegally parked?

A Well, it was not legally

parked. It was on the right-hand side

of West Broadway and there is no park-

ing on that side, plus it was on the

street.

MR. CONKLIN: Okay. I have

nothing further of this witness,

Your Honor. |

THE COURT: Mr. Rogers.

CROSS EXAMINATION

BY MR. ROGERS:

Q Detective Ferraro -- Detective

Lindsey, excuse me.

A Yes.

Q That is Officer Lindsey?

A Officer Lindsey.

Q Okay. When you drove up you

said the defendant was out of the

vehicle?

A Yes.

Q Where was the passenger of the

vehicle?

A He was still in the vehicle at

the time.

Q Okay. And you said Officer

Boggs was still waiting on confirmation

App. 79

On this warrant?

A Yes.

Q And began to pat down the

defendant?

A Yes.

Q While you were present?

A Yes.

Q Okay. At some point you must

have been present when this passenger

waS available to take the automobile

away. Did you hear that conversation?

A No, I didn't hear the request,

but if I recall he was in no shape to be

driving the vehicle, in my estimation he

would be in no shape to be asking to

drive the vehicle.

Q So were you present when Offi-

cer Boggs allegedly told him to go get

a cab?

A Well, we had asked him if we

could give hima lift to the city limits.

If I recall, I think he was from the

East Side and it would have been down

the Trail at Detroit Avenue, and he

stated that he was oging to take a walk,

find his own way home.

Q Had you, or anyone that you ob-

served, given this person a standard

App. 80 |

finger to nose test, walk a straight

line test, anything along that type of

line?

A No. He was walking okay, he

wasn't falling down. We wouldn't have

let him leave if he was that bad shape,

but he -- I don't think he wanted to

take the chance of driving the vehicle.

Q You're saying you didn't hear

him ask to have the keys to be able to

take that vehicle?

A No.

Q Now, you say Sergeant Zink

showed up?

A Yes.

Q And he was the one that immedi-

ately started the inventory while --

what were you doing while he was doing

the inventory of the front and back

seats?

A We were waiting, and once con-

firmation came I assisted Officer Boggs

in placing the suspect in his vehicle,

and this was after we had already told

the passenger that he could -- he could

walk.

Q Okay.

X Sergeant Zink then went ahead

App. 81

and searched the front and back seat.

Q Okay. then you said Sergeant

Zink came on up and said something about

checking the trunk. What was it that he

said?

A Well, he says -- well, as far as

I can recall, he says, "Do we have the

keys? Let's check the trunk."

Q He said what?

A He says, "Let's check the trunk."

Q Did he say, "Let's check the

trunk to see if there's any drugs or any

marijuana there."?

A No.

Q And did you have the keys with

you?

A No, they were in the -- they

were in the column.

Q In the ignition?

A Yes, there you go.

Q And if he would have already

checked the front seat and the back seat,

why did he ask you to assist him to

check the trunk?

A Well, I had came back up. I'm

not sure.

Q Anda do you know why Sergeant

Zink was checking the trunk?

a a ee

App. 82

A Well, probably for an inventory

search.

Q You say probably?

A Yes.

Q But do you know why he was

checking the trunk?

A Well, no. We always -- I always

check the trunk for an inventory search,

so I presumed he would be doing the same

thing.

Q Do you check the -- have you

ever checked the trunk of a vehicle out

on the street without the consent of the

driver of the automobile?

A Yes.

Q Okay. And how many times have

you done that?

A : Well, I can't --

MR. CONKLIN: Your Honor,

I'm goirmgto object. It's not rele-

vant to --

THE COURT: Sustained.

THE WITNESS: Well, I've

had --

THE COURT: You don't

have to answer the question, offi-

cer.

BY MR. ROGERS:

|

App. 83

Q You say you were present during

the conversation with the defendant and

nothing out of the usual was said?

A No.

Q What do you recall about that

conversation?

A Nothing out of the ordinary. I

can't recall.

Q Now, the only thing that you had

heard over the radio was that Toledo was

saying that they had a C.B. report that

said there was hit-skip accident in the

City of Toledo?

A Yes, and they were heading

towards Maumee. |

Q Okay.

A And that a brown van was follow-

ing the vehicle.

Q Are you aware of any written

police of the Maumee Police Department

regarding searches of vehicles after the

driver's been arrested?

A No, I can't recall any proce-

dure.

MR. ROGERS: Okay. Nothing

further.

THE COURT: Mr. Conklin?

ee

App. 84

REDIRECT EXAMINATION

BY MR. CONKLIN: -

Q Officer, as far as you were

concerned, you were conducting a search

of the vehicle for the purpose of an

inventory, is that correct?

A Yes.

Q Sergeant Zink never told you

otherwise, did he?

A No.

MR. CONKLIN: I have

nothing further, Your Honor.

THE COURT: | You may step

down, Officer Lindsey.

MR. CONKLIN: The State

would call no further witnesses at

this time, Your Honor.

THE COURT: The case is

with the defense, Mr. Rogers.

MR. ROGERS: Yes, Your

Honor. I would call the defendant

for purposes of this hearing only,

to the -- well, I won't call the

defendant in this case. I don't

think I need to.

THE COURT: All right.

Are you going to present other wit-

_nesses then, Mr. Rogers?

App. 85

MR. ROGERS: No, Your

Honor, we have no witnesses to

present. |

THE COURT: All right.

I, THE UNDERSIGNED, DO HEREBY

CERTIFY THAT THE ABOVE AND FOREGOING

IS A TRUE AND COMPLETE TRANSCRIPT

OF THE PROCEEDINGS HAD IN THE CASE

OF THE STATE OF OHIO -VS- BRIAN

SCOTT SKRIPICK, CASE NO. CR86-6942

ON DECEMBER 22, 1986.

/s/ David O'Neil

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