Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Judith
Anton Lapp, Assistant Prosecuting Attorney, for
Thomas Hodges, for Defendant-Appellant.
CUNNINGHAM, PRESIDING JUDGE.
Defendant-appellant Daniel Foster appeals his convictions for
trafficking in marijuana, carrying a concealed weapon, and
having weapons under a disability, on the grounds that the
trial court failed to grant his motion to suppress evidence.
Foster contended that the evidence had been improperly
obtained during an unlawful traffic stop and an unlawful
search of the vehicle that he had been operating. For the
reasons that follow, we hold that the traffic stop was
lawful, but the state failed to establish that the subsequent
warrantless search of the vehicle was a lawful inventory
search. Therefore, we reverse the trial court's judgment
in part and remand the cause for further proceedings.
Background Facts and Procedure
Foster was driving a Chevy Suburban without any passengers
around 3 p.m. on October 16, 2015, when Officer Christopher
Clarkson and his partner observed Foster turn left at the
intersection of Martin Luther King Drive and Reading Road.
Believing that Foster had run a red light, Officer Clarkson
ran a search on the license plates of the vehicle, which was
registered to Foster's wife, and then effectuated a
traffic stop. Foster parked the Suburban in the far right
lane on Reading Road, impeding one lane of traffic. The
officers approached Foster and asked for his identification.
He fully cooperated. After running Foster's information
in the cruiser's computer, the officers learned that
there was a capias for his arrest related to a charge of
Upon learning of the capias, the officers placed handcuffs on
Foster and conducted a pat-down search. The officers found
over $1400 in his pockets. Afterwards, they placed him in the
back seat of the police cruiser. The officers then began
searching the Suburban. There was no evidence that the police
advised Foster before the search that he could have someone
remove the vehicle from the road. But when the officers told
him that they would be moving the vehicle, he asked if his
wife could retrieve it.
During the hour-long search of the vehicle, the police
discovered marijuana, a scale, and a gun. After the search,
an officer drove the Suburban to District 4, located about
two miles away. Foster was also taken to District 4 for
further questioning. Later that evening, after Foster had
been taken to jail, the police permitted Foster's wife to
retrieve her Suburban from District 4's parking lot.
After his indictment, Foster moved to suppress the money that
was found on his person and all contraband found in the
vehicle. He challenged both the constitutionality of the
initial traffic stop and the subsequent warrantless search of
In response to the motion to suppress, the state contended
that Officer Clarkson had reasonable suspicion to effectuate
the traffic stop. Further, the state argued that the
warrantless search of the Suburban was justified on the basis
of probable cause-because Officer Clarkson claimed to have
smelled marijuana coming from the vehicle-and under the
inventory search exception to the warrant requirement.
Both Officer Clarkson and Foster testified at the suppression
hearing, and provided conflicting versions of the facts with
respect to the traffic violation. Officer Clarkson testified
that Foster had driven through the intersection at a high
rate of speed in an unsuccessful attempt to beat the changing
light. Officer Clarkson also authenticated the police cruiser
dash-cam recording of the traffic stop that was admitted into
evidence. The recording did not show Foster's approach
through the intersection, but it did capture Officer Clarkson
excitedly explaining to Foster afterwards that he had seen
Foster "flying through the light."
Contrary to Officer Clarkson's testimony, Foster
testified that he had lawfully entered the intersection on a
green light and had turned left after waiting for the
oncoming traffic to clear, but before the light turned to
With respect to the search of the vehicle, Officer Clarkson
testified that he had ordered a search of the Suburban for
two reasons. First, he claimed that he had observed the scent
of marijuana coming from the vehicle when he first had
approached Foster, although he admitted that he never
mentioned this to Foster or noted it in his paperwork.
Second, he stated that he had intended to impound the vehicle
due to the driver's arrest, and that the Cincinnati
Police Department had a written inventory policy found in
Procedure 12.265 that required an inventory search of all
vehicles that came into police custody. Procedure 12.265 was
admitted into evidence and provided in relevant part that
"Department personnel will conduct a thorough inventory
search of all vehicles taken into custody per Cincinnati
Municipal Code 513-1, Impoundment of Motor Vehicles."
In support of suppression, Foster argued that Officer
Clarkson's testimony was not credible and did not support
a finding of probable cause to support the traffic stop or
the search of the vehicle. Foster further argued that the
search could not be considered an inventory search undertaken
in compliance with Procedure 12.265, because the vehicle was
not ultimately towed or impounded. Alternatively, Foster
argued that the officer's initial decision to impound the
vehicle was contrary to another written police policy,
Procedure 12.270, which Officer Clarkson was asked about on
cross-examination and which was admitted into evidence.
Procedure 12.270 sets forth criteria governing an
officer's decision to impound a vehicle, including a
vehicle in the possession of a "physically arrested
person." Procedure 12.270 (A)(g). In part, it provides
"do not impound the motor vehicle of a physically
arrested person * * * if * * * [t]he driver arranges for
someone to take custody of the vehicle." Procedure
Defense counsel stressed that Foster had repeatedly asked if
his wife could pick up the vehicle and had in fact arranged
for her to ...