# Petition for Writ of Certiorari — Skripick v. Ohio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1219

## Text

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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

——_ See —

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1710%3A1. Public record. Not legal advice.