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State v. Foster

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 18, 2017

STATE OF OHIO PLAINTIFF-APPELLANT
v.
VALINTON L. FOSTER DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602936-A

          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.

         {¶1} 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.

         {¶2} 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 properly suppressed.

         {¶3} 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 narcotics.

         {¶4} 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).

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 what ...


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