State v. Bradshaw

• Decision Date: 31 May 1974
• Citation: 41 Ohio App.2d 48,322 N.E.2d 311
• Parties: , 70 O.O.2d 52 The STATE of Ohio, Appellee, v. BRADSHAW, Appellant.
• Court: Ohio Court of Appeals

Page 48

41 Ohio App.2d 48

322 N.E.2d 311, 70 O.O.2d 52

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

Court of Appeals of Ohio, Sixth District, Wood County.

May 31, 1974.

Syllabus by the Court

1. The requirement of a bail bond in the sum of $100 for a second traffic offense in one year is not a denial of equal protection of the laws to a person unable to make bond and as a result of which his automobile is impounded and searched.

2. The reasonableness of an inventory search of an automobile after a traffic arrest must be determined by balancing Fourth Amendment rights against the duties of the police officers to use reasonable measures to protect the vehicle itself and the property within the vehicle.

3. The presence or absence of police regulations do not per se affect the reasonableness of the inventory search of a vehicle.

4. Absent extraordinary circumstances, where a motor vehicle is in the custody of the police solely by reason of the arrest of the driver for a traffic offense, only property within plain view and that property within the immediate control of the person arrested can be seized as evidence.

Openlander, Callahan & Connelly, Toledo, for appellant.

Chester H. Marcin, Prosecutor, and Steven L. Ball, legal intern, for appellee.

WILEY, Judge.

Defendant, the appellant herein, was arrested for speeding in the city of Perrysburg, at 3 A. M. and having been previously arrested for speeding on a prior occasion within one year, was placed in custody upon his failure to post a $100 appearance bond.

His automobile, the trunk of which was partially open and secured only by a string, was driven by a police officer to a private garage, at about 4 A. M., impounded and inventoried as provided by standard police procedure, including the use of an inventory form.

Contraband, as indicated by the inventory, was seized and later introduced in evidence, over objection, at the trial of the defendant on the charge of unlawful possession of an hallucinogen. The defendant was found guilty and sentenced. An appeal was duly taken.

Two assignments of error were made:

'1. The trial court erred in overruling the defendant's motion to suppress the evidence taken from the automobile.

'2. By overruling the motion to suppress the evidence, the trial court denied the defendant his right to equal protection of the laws in violation of Article I, Section 2, of the Ohio Constitution and the Fourteenth Amendment to the Constitution of the United States.'

The second assignment of error is found not well taken for the reason that the defendant failed to indicate that he was indigent. His argument, that he was denied equal protection of the laws when his automobile was impounded and subjected to a search because he could not post a bail bond, whereas the automobiles of other traffic offenders who could post a bail bond would be neither impounded norsearched, is not persuasive. The $100 bond, established by the court, was reasonable in amount and was applicable to all persons charged with a second offense of speeding within one year. The defendant was released on bond about twelve hours after his arrest.

The first assignment of error squarely presents the issue of whether the 'inventory' of an inpounded vehicle is an unreasonable search and seizure. ¹

At the trial, the prosecution specifically stated that no claim of probable cause to search was being made; rather, no 'search' was made, only an inventory. Furthermore, it is contended that even if such an inventory is considered to be a search, it is not an unreasonable search and any contraband taken was not an unreasonable seizure.

Many courts have sustained the position of the prosecution. Among the reasons usually advanced are that the search is benign in that it protects the owner, the bailee, the police officer and the public. See cases cited in United States v. Lawson (C.A.8, 1973), 487 F.2d 468, footnote 3; People v. Sullivan (1971), 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464, 48 A.L.R.3d 527 and the annotation at 537; United States v. Gerlach (E.D.Mich.1972), 350 F.Supp. 180; Shelton v. State (Tenn.Cr.App.1972), 479 S.W.2d 817, cert. denied at 409 U.S. 852, 93 S.Ct. 65, 34 L.Ed.2d 95; United States v. Gravitt (C.A.5, 1974), 484 F.2d 375, cert. denied 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761; People v. Trusty (Colo.1973), 516 P.2d 423; State v. Gowans (1972), 18 Ariz.App. 110, 500 P.2d 641, vacated in part at 109 Ariz. 521, 514 P.2d 442; United States v. Rosenberg (C.A.5, 1972), 458 F.2d 1183, cert. denied in 409 U.S. 868, 93 S.Ct. 166, 34 L.Ed.2d 117; People v. Babic (1972), 7 Ill.App.3d 36, 287 N.E.2d 24; State v. Undorf (1972), 210 Kan. 1, 499 P.2d 1105; Roush v. State (Fla.App.1967), 203 So.2d 632.

On the other hand, many courts have decided that a warrantless inventory search is an unreasonable search and seizure, violative of Fourth Amendment rights. See cases cited in footnote 4, United States v. Lawson, infra; see, also, Amador-Gonzalez v. United States (C.A.5, 1968), 391 F.2d 308; Pigford v. United States (D.C.App.1971), 273 A.2d 837; United States v. Pannell (D.C.App.1969), 256 A.2d 925; Carpio v. Superior Court (1971), 19 Cal.App.3d 790, 97 Cal.Rptr. 186; People v. Burke (1964), 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67; People v. Nagel (1971), 17 Cal.App.3d 492, 95 Cal.Rptr. 129; People v. Heredia (1971), 20 Cal.App.3d 194, 97 Cal.Rptr. 488; People v. Greenwood (1971), 174 Colo. 500, 484 P.2d 1217; State v. Keller (1973), 265 Or. 622, 510 P.2d 568.

In a recent case, the Supreme Court of the United States upheld a warrantless search of an automobile in a factual situation somewhat similar to the typical 'inventory search' of an impounded vehicle. Cady v. Dombroski (1973), 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706. In Cady, a warrantless search was made of the trunk of an automobile, driven by a Chicago police officer who was arrested and incarcerated for drunken driving. The next day, the defendant's automobile was searched by police, at the garage where the automobile had been towed the night before, to secure the revolver believed to be carried at all times by Chicago police officers. The justification for the search was the concern for the safety of the general public if an intruder should obtain the revolver from the trunk of the automobile.

Bloodied items found during the search were admitted in evidence at the later murder trial of the officer. (The report of the case does not indicate whether the revolver was found.) Cf. Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (plain view; benign act) and Cooper v. California (1967), 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (auto held under a state forfeiture statute).

For warrantless searches of the person which were upheld by the Supreme Court of the United States, see United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 and Gustafson v. Florida (1973), 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456. In the search incident to an arrest, of course, a search may be made of the area within the control of the one arrested. See United States v. Robinson, supra, 94 S.Ct. at 471. See, also, State v. Dempsey (1970), 22 Ohio St.2d 219, 259 N.E.2d 745.

The Supreme Court of the United States has not ruled directly on the issue presented in the case sub judice-see Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067; cf. Cady v. Dombroski, supra-nor has the Supreme Court of Ohio; see State v. Reynolds (1972), 32 Ohio St.2d 101, at 106, 290 N.E.2d 557, at 561:

'* * * we find it unnecessary to pass on the state's contention that the search was justified for the purpose of inventorying the contents of the vehicle for safekeeping.'

We call attention to the thoughtful discussions of 'Benign Purpose-Inventory Searches' in 87 Harv.L.R. 835, 848 (1974), and the article 'The Inventory, Search of an Impounded Vehicle,' 48 Chi.-Kent L.R. 48 (1971). See, also, annotation 48 A.L.R.3d 537 et seq., Lawfulness of 'Inventory Search' of Motor Vehicle Impounded by Police.

For an excellent discussion of the same problems arising from warrantless inventory searches, see United States v. Lawson (C.A.8, 1973), 487 F.2d 468.

In Lawson, the district court granted defendant's motion to suppress (S.D.1973), 355 F.Supp. 101, and the United States Court of Appeals affirmed. Defendants were arrested for passing insufficient fund checks at Aberdeen, South Dakota. Their automobile, parked at a motel with the doors and trunk locked, was impounded and taken to the police station. The next day, it was rearched pursuant to a written regulation of the Aberdeen police department for the purpose of proparing an inventory. A .22 calibre revolver was found and criminal charges were brought. As in the case sub judice, no assertion was made that the search could be justified on any groung other than as an inventory search.

We quote extensively from United States v. Lawson, supra, 457 F.2d at 469:

'* * * The Government specifically disavows any contention that the search was incident to a lawful arrest, and it is equally clear from the record that there existed no probable cause to support a search of the locked trunk. Rather, the Government argues that the search and seizure should be upheld because, '(t)he discovery of the firearm was made while the Police Officers were following a legitimate, reasonable and necessary police function.' The Government argues that when the inventory is carried out pursuant to a standard uniform procedure, it is reasonable; thus the evidence seized should be admissible. This position finds support in the language of some of the cases that have considered the problem of an inventory search. ² However, the contrary position, that an inventory search is unreasonable, had been taken by other courts. ³

'The problem of automobile searches and their relationship to the warrant requirements of the Fourth...