State v. Bernius

• Decision Date: 23 December 1964
• Docket Number: No. 38588,38588
• Citation: 203 N.E.2d 241,177 Ohio St. 155
• Parties: , 29 O.O.2d 359 The STATE of Ohio, Appellee, v. BERNIUS, Appellant.
• Court: Ohio Supreme Court

Page 155

177 Ohio St. 155

203 N.E.2d 241, 29 O.O.2d 359

The STATE of Ohio, Appellee, v. BERNIUS, Appellant.

No. 38588.

Supreme Court of Ohio.

Dec. 23, 1964.

Syllabus by the Court

1. Any evidence, no matter how reliable, acquired as a result of an unreasonable search must be suppressed. (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, followed.)

2. A search without a warrant of an automobile, made after the possessor thereof has been lawfully arrested and removed with the automobile to a police station, is unreasonable. (Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, followed.)

3. In providing procedural protections to those charged with crime, a state court cannot rely upon the law of agency as developed by its decisions. (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, followed.)

4. Where the owner of an automobile entrusts the possession and control thereof to another, a search thereof with the consent of the one so entrusted but without a warrant and without the express consent of such owner will, as against such owner, be unreasonable. (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, followed.)

Defendant was indicted by the Hamilton County Grand Jury for 'unlawfully and knowingly' having 'in his possession or under his control obscene, lewd or lescivious photographs.' The indictment charges a crime as specified in Section 2905.34, Revised Code.

Defendant had loaned his automobile to a Miss Young, who was arrested while driving that automobile for changing lanes in violation of a city ordinance.

When she was unable to produce a driver's license or the registration for the automobile or to satisfactorily account for her possession of the automobile, she was arrested for operating a motor vehicle without a license and she and the automobile were removed to a police station.

At the station, Miss Young gave the keys to the automobile to the police who then searched the automobile and found a suitcase in its trunk. They opened the suitcase and found therein photograph albums containing the photographs for possession or control of which defendant has been convicted.

Prior to the trial, defendant filed a motion to suppress those photographs as evidence on the ground, inter alia, that they had been found only as the result of an unlawful and unreasonable search. That motion was overruled and the photographs were admitted as evidence at the trial.

The cause is now before this court on appeal from the judgment of the Court of Appeals which affirmed the judgment of conviction.

Raymond E. Shannon, Pros. Atty. and William S. Matthews, Asst. Pros. Atty., for appellee.

James L. Ostrander, Cincinnati, for appellant.

TAFT, Chief Justice.

The Supreme Court of the United States has held that the Fourteenth Amendment to the Constitution of the United States now requires a state court to suppress any evidence, no matter how reliable, acquired as a result of an unreasonable search. This represents a departure from its previous decisions on this precise question. Wolf v. Colorado (1949), 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. See dissenting opinion, Mapp v. Ohio (1961), 367 U.S. 643, 672, 81 S.Ct. 1684, 1701, 6 L.Ed.2d 1081, 1100. However much the writer may disagree with the most recent holding of the Supreme Court on this question or question its wisdom or soundness (see 50 American Bar Association Journal, 815), we are required to follow it just as we followed its previous holding on the same question. See State v. Mapp. 170 Ohio St. 427, 166 N.E.2d 387.

The search of defendant's automobile, having been made after the possessor of the automobile had been arrested and removed with the automobile to the police station, cannot be justified as incident to a lawful arrest. Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.

However, the state contends that the search which resulted in the finding of these photographs was not unreasonable because (1) it was made with the consent of Miss Young and (2) for the purpose of attempting to ascertain the owner of the automobile so as to enable its return to him.

Obviously, the police who searched the automobile knew that it was not owned by Miss Young. Therefore, miss Young's consent could only be effective if authorized by defendant. Since defendant had entrusted the automobile to Miss Young, it might reasonably be argued that defendant had apparently authorized Miss Young to consent to a search of his automobile. United States v. Eldridge (4 Cir. 1962), 302 F.2d 463. See Miller v. Wick Bldg. Co. (1950), 154 Ohio St. 93, 93 N.E.2d 467. However, the opinion of Mr. Justice Stewart in Stoner v. California (1964), 376 U.S. 483, 84 S.Ct. 889, 892, 11 L.Ed.2d 856, 860, clearly indicates that, in providing 'procedural protections * * * to those charged with crime,' a state court...