Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga
County Prosecutor Mary M. Dyczek Assistant County Prosecutor
ATTORNEY FOR APPELLEE Steven L. Bradley Marein and Bradley
BEFORE: Blackmon, J., McCormack, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
The state of Ohio appeals from the order of the trial court
that suppressed evidence obtained during a warrantless search
of Valinton Foster's ("Foster") vehicle. The
state assigns the following error for our review:
The trial court erred in granting [Foster's] motion to
suppress physical evidence and statements because the police
conducted an inventory search of a closed container in good
faith and pursuant to a standardized and written policy.
Having reviewed the record and pertinent law, we agree with
the trial court's conclusion that the state's search
of a closed can was conducted with an investigatory purpose,
and the evidence obtained as a result of this search was
On January 22, 2016, Foster, who was driving a white BMW, was
stopped by Cleveland Police Det. Donald Kopchak ("Det.
Kopchak") for failing to signal a lane change, having no
front license plate, and operating a vehicle with tinted
windows. During the stop, Det. Kopchak determined that
Foster's license was suspended. Prior to having the car
towed to the impound lot, Det. Kopchak searched the car. He
opened a can of Arizona Iced Tea, and observed residue, then
used a chemically treated wipe to confirm the presence of
On February 23, 2016, Foster was indicted for possession of
less than one gram of heroin, in violation of R.C. 2925.11,
and possession of criminal tools, in violation of R.C.
2923.24(A), both with forfeiture specifications (cell phone
and $3, 412).
Foster pled not guilty to the charges. On May 6, 2016, Foster
moved to suppress the evidence against him, arguing that the
search was conducted with an investigatory purpose, and not
as an inventory of the contents of the car.
The trial court held an evidentiary hearing on July 25, 2016.
Det. Donald Kopchak testified that while on routine patrol on
St. Clair Avenue in Collinwood, he observed Foster's
vehicle make an unsignalled lane change. The tinting on the
window obscured his view into the car, and the front plate
was missing. Det. Kopchak stopped the vehicle, then
determined that Foster's license was suspended. According
to Det. Kopchak, police department policy required him to tow
the vehicle, and the tow policy instructs officers to open
any closed, unlocked containers found inside the vehicle and
describe those containers.
Det. Kopchak testified that while inventorying the contents
of the backseat, he noticed a can of Arizona Iced Tea. He
stated that he was not thinking of opening the can at that
point, but he picked it up and "grabbed it just to move
it." After Det. Kopchak picked it up, however, he
determined that it felt heavier than normal. When he shook
the can, he did not hear liquid inside. In light of his
experience with such containers being used to conceal other
items, he unscrewed the top. He observed a white powdery
substance, then used a wipe to test it for the presence of
narcotics, yielding a positive result.
On cross-examination, Det. Kopchak acknowledged that he
picked up small white pebbles from the floor and from
crevices of Foster's BMW. He stated that he wanted to see