State v. Peagler

• Decision Date: 28 August 1996
• Docket Number: No. 95-1197,95-1197
• Citation: 668 N.E.2d 489,76 Ohio St.3d 496
• Parties: The STATE of Ohio, Appellant, v. PEAGLER, Appellee.
• Court: Ohio Supreme Court

Page 496

76 Ohio St.3d 496

668 N.E.2d 489

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

No. 95-1197.

Supreme Court of Ohio.

Submitted May 21, 1996.

Decided Aug. 28, 1996.

[668 N.E.2D

490]

SYLLABUS BY THE COURT

1. While an appellate court may decide an issue on grounds different from those determined by the trial court, the evidentiary basis upon which the court of appeals decides a legal issue must have been adduced before the trial court and have been made a part of the record thereof.

2. When a police impoundment policy specifically addresses the inventory of closed containers and governs the procedures to be used by the police, the opening pursuant to this policy of a closed container by the police is not pretextual and thus is reasonable for Fourth Amendment purposes.

On May 13, 1994, the Montgomery County Grand Jury indicted George Edward Peagler, defendant-appellee, charging him with aggravated trafficking, a violation of R.C. 2925.11(A). On May 17, 1994, appellee pled not guilty, and on June 6, 1994, he filed a motion to suppress evidence. At the hearing on the motion, the parties stipulated to the following underlying facts.

On May 9, 1994, at approximately 3:00 a.m., officers of the Dayton Police Department stopped appellee for operating a motor vehicle with an expired registration. Upon checking appellee's record, the officers discovered that there was an outstanding warrant for appellee's arrest for failure to pay a traffic fine. The officers subsequently arrested appellee and took him into police custody.

Prior to impounding appellee's car and pursuant to a written departmental policy, the police officers conducted an inventory search of the car. The written policy required the officers to open all closed containers found in the vehicle. The officers found on the front floor of the car, in plain view, a pill container with appellee's name on it. The officers opened the container and found heroin inside.

In his motion to suppress, appellee asserted only that the police had searched beyond the scope of a constitutional inventory search (the opening of the pill container) and that the location of the search was unconstitutional (done prior to impounding the vehicle). In granting appellee's motion to suppress, the trial court found that because the police conducted the inventory search prior to impounding the vehicle, the search was unconstitutional.

The court of appeals affirmed the trial court's judgment, but on different grounds. The court of appeals found that the police impoundment policy allowed for impoundment when abandoning the vehicle would leave it "vulnerable to theft," and that the prosecution had presented no evidence supporting the assertion that the police had impounded the vehicle pursuant to this policy. The court of appeals accordingly held that the impoundment was unconstitutional.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and M. Catherine Koontz, Assistant Prosecuting Attorney, for appellant.

Lynn Koeller, Montgomery County Public Defender, and Charles L. Grove, Assistant Public Defender, for appellee.

ALICE ROBIE RESNICK, Justice.

In the case sub judice, the parties stipulated to the facts stated above ¹; moreover, the defense attorney clarified his arguments by stating: "Judge, my objection would be to the on-the-scene inventory of the vehicle. I don't believe that that's the proper procedure. I believe its got to go to the tow yard and the opening of any containers that are not weapons I believe is contrary to established law * * *. That appears to be the only issue in the case, is the situs, the timing of the inventory and the scope of the inventory."

The prosecutor stated that he intended to put a police officer on the stand to testify to the police impoundment policy. Defense counsel indicated that it would be sufficient to admit into evidence the written policy. Neither the prosecution nor defense counsel raised the issue considered by the court of appeals, that is, whether the vehicle would be "vulnerable to theft" upon abandonment and therefore whether the impoundment was conducted pursuant to established police policy. Thus, the issue presented in this appeal is whether a court of appeals may reverse a decision of a lower court on a legal theory not raised or considered in the lower court by the parties.

Generally, an appellate court will not consider any error that counsel could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524, 526, quoting State v. Childs (1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus, and citing State v. Glaros (1960), 170 Ohio St. 471, 11 O.O.2d 215, 166 N.E.2d 379, paragraph one of the syllabus; State v. Williams (1977), 51 Ohio St.2d 2d 112, 117, 5 O.O.3d 98, 101, 364 N.E.2d 1364, 1367; State v. Lancaster (1971), 25 Ohio St.2d 83, 54 O.O.2d 222, 267 N.E.2d 291, paragraph one of the syllabus.

Likewise, App.R. 12(A)(2) provides that the court of appeals "may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief." (Emphasis added.) Although this rule allows a court of appeals discretion in deciding to address an issue not briefed or raised below, the court of appeals must base any factual conclusions reached upon evidence that exists in the record. C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298, 301, 67 O.O.2d 358, 360, 313 N.E.2d 400, 403, citing Paulin v. Midland Mut. Life Ins. Co. (1974), 37 Ohio St.2d 109, 66 O.O.2d 231, 307 N.E.2d 908. Similarly, there must be sufficient evidentiary basis in the record before the reviewing court upon which it can decide a particular legal issue. Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 342, 25 OBR 392, 395, 496 N.E.2d 912, 915. Fairness, which is required for the proper operation of the adversary system of justice, requires at least that the parties be allowed in the trial court the opportunity to present evidence that would support or refute the legal theory addressed by the court of appeals. ²

In the instant case, the court of appeals correctly stated that if the police failed to obtain a search warrant, then the prosecution has the burden to establish that the search fell within an exception to the warrant requirement. Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, paragraph two of the syllabus. However, this court also held in Wallace that:

"To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge." Wallace, paragraph one of the syllabus. See, also, State v. Shindler (1994), 70 Ohio St.3d 54, 636 N.E.2d 319, syllabus.

The Wallace court reasoned that:

" * * * [T]he prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search.

"The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits. State v. Johnson (1974), 16 Ore.App. 560, 567-570, 519 P.2d 1053, 1057. Therefore, the defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search or seizure. Id. United States v. Culotta (C.A.2, 1969), 413 F.2d 1343, 1345; Duddles v. United States (D.C.App.1979), 399 A.2d 59, 61-62. Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal. State v. Carter (Utah 1985), 707 P.2d 656; see, also, United States v. Di Stefano (C.A.2, 1977), 555 F.2d 1094; United States v. Arboleda (C.A.2, 1980), 633 F.2d 985; United States v. Hensel (C.A.1, 1983), 699 F.2d 18, 41; State v. Kremer (1976), 307 Minn. 309, 239 N.W.2d 476; People v. Lyles (1985), 106 Ill.2d 373 , 478 N.E.2d 291." Id. at 218-219, 524 N.E.2d at 892.

To require the prosecution to prove the validity of every aspect of the search when there has been a stipulation to the facts and a narrowing of the issues would in effect permit a defendant to invite error. A party cannot be permitted to take advantage of an error that he himself invited or induced. State v. Wilson (1996), 74 Ohio St.3d 381, 396, 398, 659 N.E.2d 292, 307, 309; State v. Hill (1995), 73 Ohio St.3d 433, 444, 653 N.E.2d 271, 281; State v. Seiber (1990), 56 Ohio St.3d 4, 17, 564 N.E.2d 408, 422. If a party cannot rely upon a stipulation, then such stipulations should not be permitted. In the case sub judice, the parties stipulated to the facts, and appellee narrowed the issues to the specific situs of the search and the opening of the vial. Appellee cannot then complain of an error he himself induced by stipulation in the trial court.

Appellee did not assert before the trial court that the police improperly impounded the vehicle without first finding that it would be vulnerable to theft, and therefore that the police failed to follow their established departmental impoundment policy. Rather, the only error appellee raised during the motion to suppress was "the situs, the timing of the inventory and the scope of the inventory." To further underscore the basis of the objection the defense attorney concluded that, "I just believe that the opening of the vial is improper * * *. And so it would be the scope of the inventory with...