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State v. Foster

Court of Appeals of Ohio, First District, Hamilton

May 31, 2017

STATE OF OHIO, Plaintiff-Appellee,
DANIEL FOSTER, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1505813

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          J. Thomas Hodges, for Defendant-Appellant.



         {¶1} 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.

         I. Background Facts and Procedure

         {¶2} 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 criminal damaging.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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 the Suburban.

         {¶6} 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.

         {¶7} 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."

         {¶8} 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 red.

         {¶9} 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."

         {¶10} 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.

         {¶11} 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 12.270 (B)(2)(c).

         {¶12} Defense counsel stressed that Foster had repeatedly asked if his wife could pick up the vehicle and had in fact arranged for her to ...

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