State v. Fleming

162 N.E.3d 981

2020 Ohio 5352

STATE of Ohio, Plaintiff-Appellee

v.Jess FLEMING, Defendant-Appellant

No. 28743

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on November 20, 2020

OPINION

WELBAUM, J.

{¶ 1} Defendant-Appellant, Jess Fleming, appeals from his conviction for possession of heroin, in violation of R.C. 2925.11(A), a felony of the third degree, and possession of a fentanyl-related compound, in violation of R.C. 2925.11(A), a felony of the fifth degree. Fleming's no contest plea to these charges occurred after the trial court overruled his motion to suppress.

{¶ 2} According to Fleming, the suppression motion should have been granted because police officers violated his Fourth Amendment right to be free of warrantless searches when they conducted an inventory search of his vehicle. Fleming contends first that, by failing to offer him a chance to remove his property before the search was conducted, the police officers violated a tow policy that allowed them only to inventory property "left in the vehicle." Alternatively, Fleming argues that the tow policy is unreasonable because it fails to give vehicle owners a chance to remove property before the police conduct an inventory search on disabled vehicles in a non-arrest situation.

{¶ 3} After considering the evidence in the record and the legal arguments, we find Fleming's argument to be without merit. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} At the suppression hearing, Dayton Police Officer Michael Floyd was the only witness. Floyd testified that on October 20, 2019, he was dispatched to a traffic crash at the intersection of South Smithville Road and East Third Street in Dayton, Ohio. Transcript of Suppression Hearing ("Tr."), p. 6. The collision involved multiple vehicles that were blocking the intersection. Id.

{¶ 5} After arriving at the scene, Floyd observed Fleming sitting on the southeast curb of the intersection, filling out a witness statement. Id. at p. 7. Fleming had been the driver of a Ford F-150 truck, which was one of the vehicles that had been involved in the collision. Id. Because the entire northbound lane of the road was obstructed and the intersection typically was busy, the police decided to tow all the vehicles that could not be moved on their own power. Id. at p. 8, 15, and 21. Since Fleming's truck was not functioning, it was one of the vehicles that had to be towed. Id. at p. 15.

{¶ 6} The Dayton Police Department has a tow policy that provides officers with guidelines concerning what they should do when towing vehicles. Id. at p. 9 and State's Ex. 1. Under the policy, officers conduct an inventory of property in vehicles that are to be towed. This is an administrative care-taking function to secure valuables. Id. at p. 14 and 16. After deciding that Fleming's truck needed to be towed because it was blocking traffic, Officer Floyd told Fleming that the truck was going to be towed. Id. at p. 9-10. Fleming did not say anything in response. Id. at p. 10. Floyd did not tell Fleming that an inventory search was going to be conducted, nor did he ask Fleming if he would like to remove anything from the truck before the search began. Id. at p. 17. Floyd was not certain why he did not ask Fleming; he indicated he was just worried about getting traffic out of the way. Id. at p. 18.

{¶ 7} As Officer Floyd walked over to the truck's door, he immediately saw an aluminum container with a clear plastic top sitting in the middle of the front bench seat. He could see through the top and could see pills inside. Tr. at p. 11-12. As soon as Floyd saw the container, he grabbed it, took a closer look, and confirmed that it was what he thought it was. He then opened the container, removed the pills, and found a baggie of powder under the pills. Id. at p. 12. The pills also contained powder. Id. at p. 13. These items were later determined to contain illegal drugs.

{¶ 8} As a result, Fleming was indicted in November 2019 for the following offenses: Count I, possession of heroin (50 unit doses but less than 100 unit doses), in violation of R.C. 2925.11(A), a felony of the third degree; Count II, possession of heroin (less than one gram), in violation of R.C. 2925.11(A), a felony of the fifth degree; Count III, possession of a fentanyl-related compound, in violation of R.C. 2925.11(A), a felony of the fifth degree; and Count IV, possession of a fentanyl-related compound (50 unit doses but less than 100 unit doses), in violation of R.C. 2925.11(A), a felony of the third degree. At his arraignment on November 20, 2019, Fleming stood mute, and the trial court entered a not guilty plea on his behalf.

{¶ 9} The following day, Fleming filed a motion to suppress any statements he made to police and to suppress any physical evidence seized during the vehicle's search. The trial court then held a hearing on the motion on January 13, 2020, and overruled the motion to suppress from the bench. On the same day, the court filed an entry and order journalizing its decision overruling the motion to suppress.

{¶ 10} Thereafter, Fleming pled no contest to Count I, possession of heroin (50 unit doses but less than 100 unit doses), and Count III, possession of a fentanyl-related compound, in exchange for dismissal of the two remaining counts. The trial court accepted his pleas, and on February 19, 2020, it sentenced Fleming to nine months in prison on one count and 18 months on the other, with the sentences to be served concurrently with each other and with a sentence Fleming received in another case. Fleming timely appealed from the judgment of the trial court.

II. Did the Trial Court Err in Overruling the Motion to Suppress?

{¶ 11} Fleming's sole assignment of error states that:

The Trial Court Erred in Overruling Appellant's Motion to Suppress Where Police Conducted a Warrantless Search of His Automobile, Thereby Violating His Fourth Amendment Right to Be Free of Unreasonable Searches And Seizures.

{¶ 12} Fleming advances two main reasons for his contention that the trial court erred when it overruled his motion to suppress. First, Officer Floyd did not ask Fleming if he wanted to remove anything from the disabled truck before the contents were inventoried pursuant to the Dayton Police Department tow policy. Fleming also argues that the tow policy is unreasonable and violates the Fourth Amendment of the United States Constitution because it does not require officers to offer owners of disabled vehicles a chance to remove personal property before conducting inventory searches in non-arrest situations.

{¶ 13} "Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. * * * Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id.

{¶ 14} Both the Fourth Amendment to the United States Constitution and Article I, Section 14, Ohio Constitution protect persons from unreasonable searches and seizures. State v. Leak , 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 13. "Under the Fourth Amendment to the United States Constitution, a search conducted without prior approval of a judge or magistrate is per se unreasonable, subject to certain well-established exceptions." State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 181, citing Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). (Other citation omitted.)

{¶ 15} One such exception involves inventory searches "conducted in the service of law enforcement's community-caretaking function, which results from the government's extensive regulation of motor vehicles and traffic." Leak at ¶ 20, citing Cady v. Dombrowski , 413 U.S. 433, 441-442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). "In the interest of public safety, as part of the community-caretaking function of police, vehicles are frequently taken into police custody." Id. , citing South Dakota v. Opperman , 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). (Other citation omitted.) "Examples of vehicles taken into custody as part of law enforcement's community-caretaking role include those that have been in accidents, those that violate parking ordinances, those that are stolen or abandoned, and those that cannot be lawfully driven." Id. , citing Opperman at 368-369, 96 S.Ct. 3092.

{¶ 16} These routine procedures of securing and inventorying a vehicle's contents serve "three distinct needs: the protection of the owner's property while it remains in police custody, * * * the protection of the police against claims or disputes over lost or stolen property, * * * and the protection of the police from potential danger." Opperman at 369, 96 S.Ct. 3092. "An inventory search is not subject to the Fourth Amendment's warrant requirement or a probable-cause review, because it is a search that is made for administrative reasons and is unrelated to a criminal investigation." State v. Banks-Harvey , 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 20.

{¶ 17} In the case before us, Officer Floyd ordered Fleming's vehicle to be towed and taken into custody as authorized by General Order 3.02-6 of the Dayton Police Department. This is the document that outlines the Department's policy for towing vehicles. As indicated, Floyd issued the order because Fleming's vehicle was disabled due to the collision and was obstructing traffic. The relevant provisions of the tow policy state as follows:

I. WHEN

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