City of Blue Ash v. Kavanagh

113 Ohio St. 3d 67
CourtOhio Supreme Court
DecidedMarch 28, 2007
DocketNo. 2005-2149
StatusPublished
Cited by33 cases

This text of 113 Ohio St. 3d 67 (City of Blue Ash v. Kavanagh) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Blue Ash v. Kavanagh, 113 Ohio St. 3d 67 (Ohio 2007).

Opinions

Lundberg Stratton, J.

I. Introduction

{¶ 1} Today this court must determine whether discretionary impoundment of a vehicle during a legitimate traffic stop constitutes an unreasonable seizure under the Fourth Amendment. For the reasons that follow, we find that the impoundment was justified and that the detention of the driver and subsequent search of the vehicle were lawful, and we therefore reverse the judgment of the court of appeals.

II. Facts

{¶ 2} On January 15, 2004, Blue Ash Police Officer Robert Rockel pulled over defendant-appellee, William Kavanagh, on Interstate 71 for driving with expired license plates. When asked for his driver’s license, defendant produced an expired driver’s license. Officer Rockel noticed that defendant appeared to be nervous, his voice trembled, and his hands were shaky.

{¶ 3} Because defendant’s operator’s license and tags had both been expired for almost three months and defendant could not lawfully drive the vehicle away, and the vehicle could not be parked or pushed to a safe location on the highway, Officer Rockel decided to impound defendant’s vehicle. Officer Rockel testified that with regard to a driver with an expired driver’s license and license plates, Blue Ash Police Department policy is to leave the decision whether to impound the vehicle to the officer’s discretion.

{¶ 4} After speaking to defendant, Officer Rockel went back to his cruiser, requested backup, and began writing a citation. Officer Rockel then returned to defendant and asked him to step out of his vehicle for the officer’s safety and because the vehicle was being impounded. Officer Rockel also asked defendant if there was any marijuana in the vehicle. In Officer Rockel’s opinion, the question [68]*68seemed to make defendant more nervous, but defendant answered in the negative. Around that time, Officer Beth Monteith arrived as backup.

{¶ 5} Officer Rockel asked defendant to stand with Officer Monteith between his cruiser and defendant’s vehicle for safety. Officer Rockel then decided to deploy his narcotics-detection dog, which was in his cruiser. The dog alerted to the driver’s side and passenger’s side door handles of defendant’s vehicle. Because of the positive alert by the dog, Officer Rockel decided that he would search the vehicle. Before Officer Rockel could open defendant’s car door to begin the search, defendant informed Officer Monteith that there was a gun in the center console. On that information, Officer Rockel retrieved the loaded 9 mm weapon from the vehicle’s console.1

{¶ 6} Defendant was cited for the traffic violations2 and was placed under arrest for improperly handling a firearm in a motor vehicle in violation of Blue Ash Codified Ordinances 549.04, a first-degree misdemeanor. Defendant sought to have the results of the search suppressed. After a hearing, the trial court denied the motion to suppress. Defendant pleaded no contest to the firearm charge and was found guilty by the trial court.

(¶ 7} Defendant appealed his firearm conviction and the trial court’s denial of his motion to suppress. The Hamilton County Court of Appeals reversed the judgment of the trial court and remanded the cause. The cause is now before this court pursuant to the acceptance of a discretionary appeal.

III. Analysis

{¶ 8} In reversing the trial court’s judgment denying the motion to suppress, the court of appeals held that defendant “was unlawfully detained at the time the search began because the traffic stop had ended when Rockel finished citing him for the license and registration violations. * * * Once the justification for the traffic stop had ended, Rockel was not permitted to extend the stop for [the] purpose of using the dog to detect narcotics.”

{¶ 9} The court rejected the city’s argument that because Officer Rockel had decided to impound the car, the traffic stop was not over. The court reasoned that but for the officer’s decision not to permit defendant to drive the car, the car would not have been parked illegally or obstructing traffic, and impoundment would not have been necessary. The court concluded that the improper exten[69]*69sion of defendant’s detention invalidated everything that occurred beyond the time of the unlawful traffic stop, including the canine sniff and the discovery of the firearm. We disagree.

A. Impoundment

{¶ 10} The parties agree that defendant was lawfully stopped. The question is whether the lawful detention for the traffic infractions became an unlawful detention when the officer decided to impound the vehicle and deploy the narcotics-detection dog. We hold that it did not.

{¶ 11} While focusing primarily on inventory searches rather than impoundment, South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, is instructive. The United States Supreme Court concluded that a routine inventory search of a lawfully impounded vehicle is not unreasonable within the meaning of the Fourth Amendment when performed pursuant to standard police practice and when the evidence does not demonstrate that the procedure involved is merely a pretext for an evidentiary search of the impounded vehicle. The court held that “[i]n the interests of public safety and as part of what the Court has called ‘community caretaking functions,’ * * * automobiles are frequently taken into police custody. * * * The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” Id. at 368-369, 96 S.Ct. 3092, 49 L.Ed.2d 1000, quoting Cady v. Dombrowski (1973), 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706. See, also, State v. Robinson (1979), 58 Ohio St.2d 478, 480, 12 O.O.3d 394, 391 N.E.2d 317.

{¶ 12} Thus, we must determine whether the vehicle was lawfully impounded and whether the impoundment was merely a pretext for an evidentiary search of the impounded vehicle.

{¶ 13} R.C. 4513.61 provides that “[t]he sheriff of a county or chief of police * * * or a state highway patrol trooper * * * may order into storage any motor vehicle * * * that has come into possession of the sheriff, chief of police, or state highway patrol trooper as a result of the performance of the [officer’s] duties or that has been left on a public street or other property open to the public for purposes of vehicular travel * *

{¶ 14} Further, Blue Ash Code of Ordinances 303.08 also addresses impounding of vehicles:

{¶ 15} “(a) Whenever any police officer finds a vehicle unattended upon any highway * * * where such vehicle constitutes an obstruction to traffic, such officer may provide for the removal of such vehicle to the nearest garage or other place of safety. In addition to the above, any police officer may impound any [70]*70stolen, abandoned or unroadworthy vehicle, or any other vehicle parked at a place where parking is prohibited * *

{¶ 16} Thus, under both R.C. 4513.61 and Blue Ash Code 303.08, Officer Rockel was expressly authorized to use his discretion whether to impound the vehicle.

B. Pretext

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Bluebook (online)
113 Ohio St. 3d 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-blue-ash-v-kavanagh-ohio-2007.