State v. Zinmeister

• Decision Date: 07 October 1985
• Docket Number: No. 49478,49478
• Citation: 27 Ohio App.3d 313,501 N.E.2d 59
• Parties: , 27 O.B.R. 370 The STATE of Ohio, Appellee, v. ZINMEISTER, Appellant. *
• Court: Ohio Court of Appeals

Page 313

27 Ohio App.3d 313

501 N.E.2d 59, 27 O.B.R. 370

The STATE of Ohio, Appellee, v. ZINMEISTER, Appellant. ^*

No. 49478.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Oct. 7, 1985.

Syllabus by the Court

1. Cleveland Codified Ordinances Section 601.15, which allows for warrantless inspections of such establishments as public garages, auto sales lots, motor vehicle salvage facilities, junk yards, etc., is constitutional on its face.

2. Evidence was properly seized under Ordinance 601.15 where the search was undertaken as a routine regulatory inspection rather than a mission to gather evidence of a crime.

3. The "plain view" doctrine cannot be used to justify the general seizure of vehicle parts under Ordinance 601.15 and any parts so seized subject to the warrantless search must be suppressed.

John T. Corrigan, Pros. Atty., for appellee.

Timothy J. Potts, Cleveland, for appellant.

PRYATEL, Judge.

On August 2, 1984, Kenneth Zinmeister, defendant-appellant, was indicted on twelve counts of receiving stolen property (in violation of R.C. 2913.51); three counts of possession of criminal tools (in violation of R.C. 2923.24); one count of tampering with a public utility (in violation of R.C. 4933.18); one count of theft of utility service (in violation of R.C. 4933.19); and one count of possession of a motor vehicle with concealed identity (in violation of R.C. 4549.07).

Defendant filed a motion to suppress all physical evidence seized by the police. Following the presentation of evidence the court denied defendant's motion to suppress. The court then accepted defendant's plea of no contest (which defendant entered after retracting a not guilty plea) and sentenced defendant to an aggregate definite sentence of six years.

The evidence adduced at the hearing on defendant's motion to suppress was as follows: On June 12, 1984, at approximately 1:15 p.m., three members of the Cleveland Police Department arrived at defendant's place of business (Z's Towing and Salvage) located at 10401 Detroit Avenue, for the purpose of conducting an inspection of the premises pursuant to Cleveland Codified Ordinances Section 601.15 ¹ (which allows for warrantless inspections of such establishments as public garages, auto sales lots, motor vehicle salvage facilities, junk yards, etc.).

The officers testified that they had tried to inspect Z's Towing and Salvage on June 11, 1984, but the lot appeared to be closed. On June 12, 1984, an officer phoned the establishment and was told that Z's Towing and Salvage was open for business. Upon police arrival, the gate to Z's Towing and Salvage was unlocked. Two men were on the premises (one was seen looking for hubcaps). The officers approached the other man, Wayne Nagy, who told them that the owner (defendant) was out of town. Nagy indicated that he (Nagy) was in charge of the business. The officers told Nagy their purpose for being there (i.e., to inspect the premises) and showed Nagy a copy of Cleveland Codified Ordinances Section 601.15, before Nagy gave the police permission to inspect the premises.

The police officers discovered that the vehicle identification numbers ("VIN") on several vehicles or the motor numbers were altered. ² After being contacted by phone, defendant denied that these vehicles belonged to him. Nagy produced a list of all the titles in the salvage yard's possession. No titles were included for the vehicles suspected of being stolen. The three officers, who were later joined by approximately three other policemen, had these vehicles towed as well as engines and other motor vehicle parts that also appeared to be stolen. ³ According to the officers, the towing of vehicles and parts that appear to be stolen was standard procedure followed in the eight to ten prior inspections conducted pursuant to the Cleveland ordinance.

An interdepartmental memorandum issued on May 21, 1984 by the chief of police to the officers and members of the police department advised that it was improper to search for stolen vehicle parts without a warrant. According to the memorandum:

"All inspections shall be for the sole purpose of locating stolen motor vehicles and, therefore, only motor vehicles will be inspected. If probable cause is developed to warrant a search of the premises for contraband, stolen vehicle parts, or personal property, the inspecting officer shall obtain a proper search warrant before conducting such a search."

Two of the three officers directly involved in the inspection testified that they became aware of the interdepartmental memorandum through a phone conversation on June 12, 1984--after the vehicles were towed. Although one of the officers admitted that he was informed that only vehicles (and not parts) were to be towed, he said that a truckload of parts was towed after this conversation. However, the sergeant (in charge of the operation) testified that he was merely told that "there may be some problem with towing the vehicles" (but not vehicle parts). The sergeant received this information over the phone. Nor did he discuss the matter with his fellow officers. The third officer had no knowledge of the interdepartmental memorandum on June 12, 1984 and believed he was entitled to inspect vehicle parts.

Search warrants were obtained and executed on June 13, 1984 and June 15, 1984. As a result of these searches, additional stolen motor vehicles and parts were recovered.

William Nagy and Pedro Carabello testified on behalf of defendant. Nagy admitted telling the police officers that defendant placed him in charge of the salvage yard while he (defendant) was away and that the sergeant introduced himself at the gate (which Nagy said was locked) and told him he was there to make an inspection under the city ordinance. Nagy further admitted that he phoned defendant two times and learned that defendant did not have a permit to run the salvage yard.

Nagy said that he observed the officers inspect the vehicles in the yard and a locked trailer parked outside the inner gate. According to Nagy, a flatbed truck used to tow various vehicle parts arrived between 4:00 and 4:45. Other tow trucks arrived at 6:30 or 7:00 and between 11:00 and 11:30 p.m.

Nagy testified that he returned to the salvage yard around 4:00 p.m. the next day and saw "at least 15 to 20 people going through everything inside the yard." He also observed the officers at the scene on June 15, 1984.

Pedro Carabello, who was present at the salvage yard on June 12, 1984, said he arrived at the yard with Nagy (a friend of his) at around 9:30 a.m. with the intention of fixing a transmission line on one of the vehicles. Although Carabello denied that he was a customer, he did admit that he was looking for hubcaps for his car.

The trial court denied defendant's motion to suppress all physical evidence seized by the police. The court concluded that Cleveland Codified Ordinances Section 601.15 was constitutional since the vehicular handling industry is pervasively regulated. The court further found that the ordinance was sufficiently limited as to time, place and scope and that warrantless inspections were necessary to the regulation scheme. Finally, the court concluded that the police officers who conducted the inspection acted in good faith in seizing automobiles and vehicle parts found in plain view and did not exceed the scope of the ordinance.

Defendant filed the instant appeal, assigning three errors.

Assignment of Error No. I

"The lower court erred in overruling appellant's motion to suppress evidence seized pursuant to Cleveland Codified Ordinance 601.15 as the ordinance is violative of the Fourth Amendment of the United States Constitution and Article I[,] Section 14 of the Ohio Constitution."

Appellant initially contends that Cleveland Codified Ordinances Section 601.15 is unconstitutional on its face. In particular, appellant posits that Section 601.15, ⁴ in authorizing warrantless inspections of vehicles on commercial premises, is not reasonably necessary to the furtherance of a legitimate state interest and does not provide minimally adequate procedural safeguards for its implementation.

It is axiomatic that the Fourth Amendment protects against unreasonable searches and seizures, and that subject to specific exceptions (Camara v. Municipal Court [1967], 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930), the police may not conduct a search unless a neutral magistrate first finds that there is probable cause and issues a warrant. New York v. Belton (1981), 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768; Chambers v. Maroney (1970), 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419.

Hence, in general, warrantless administrative searches are unreasonable and therefore invalid. Marshall v. Barlow's, Inc. (1978), 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305; See v. Seattle (1967), 387 U.S. 541, 545, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943. ⁵ Nevertheless, the United States Supreme Court has carved out an exception to the search warrant requirement for "pervasively regulated business[es]," United States v. Biswell (1972), 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (firearms) and industries closely regulated and "long subject to close supervision and inspection." Colonnade Catering Corp. v. United States (1970), 397 U.S. 72, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (liquor).

Although commercial businesses enjoy Fourth Amendment protection against unreasonable searches and seizures (see Marshall, supra, and See, supra ), "[t]he greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home * * *." Donovan v. Dewey (1981), 452 U.S. 594, 598-599, 101 S.Ct. 2534, 2537-2538, 69 L.Ed.2d 262. Therefore, "a warrant may not be constitutionally required when Congress...