Helm v. Commonwealth

813 S.W.2d 816, 1991 Ky. LEXIS 92, 1991 WL 117509

• Court: Kentucky Supreme Court
• Decided: July 3, 1991
• Docket: No. 89-SC-561-MR
• Status: Published

Opinions

REYNOLDS, Justice.

Charles Helm entered a conditional guilty plea pursuant to RCr 8.09 and was sentenced to twenty years imprisonment for robbery in the first degree, which was enhanced to thirty-five years imprisonment for being a PFO in the second degree. The issue preserved for appeal was whether the search and seizure involving an automobile which appellant was alleged to have been driving was lawful under the Fourth and Fourteenth Amendments of the United States Constitution.

The record of the suppression hearing discloses that a Taylor Drug Store in Louisville, Kentucky, was robbed on the evening of October 28, 1988. The gunman ordered the pharmacist to place both money and Schedule II drugs in a bag. Subsequently, in the early morning hours of October 29, two Dayton, Ohio, police officers on patrol and while driving toward an intersection, observed an automobile make a quick turn into the intersection and travel past them in the opposite direction. The car was without a front license plate as required by Ohio law and, as the automobile passed the officers, the driver and the silver Monte Carlo car were further observed. The officers turned around and followed the car which then sped up and disappeared. Shortly thereafter the officers saw appellant walking on the sidewalk. He was stopped and asked for identification and name. Appellant was without any identification, but related that his name was Charles Helm. When asked the location of the car that he had been driving, appellant’s reply was, “What car?” The police unit was equipped with a computer terminal and the officers determined by use of this equipment that there was an outstanding Ohio robbery warrant for Helm’s arrest. Appellant was arrested and taken to jail where a search revealed a single car key.

After booking Helm, the officers returned to the area and found a 1978 silver Monte Carlo less than a block from the place of arrest. The car motor was warm and it had a Kentucky license plate. The vehicle could not be entered from the driver’s side, but the passenger side was not locked and Officer Clark determined that the key would operate the ignition. Clothing and paraphernalia were observed lying in the back seat.

The officers determined to tow the vehicle based on police policy. A records check disclosed a Kentucky registration and that the owner of the vehicle was a resident of Somerset, Kentucky. Wallace, the other officer, advised that it was common practice after arresting a subject to tow the car for safekeeping. The car, which had a Kentucky plate, was not on an active/stolen report and Wallace also testified they had no way to contact the owner and it would be in the best interest to tow the vehicle and hold it as this was a high crime area. The car trunk was not equipped with a lock and it was thereafter unfastened. The officers noted a paper bag containing money and bottles of Schedule II drugs with Louisville Taylor Drug Store labels. A search warrant was subsequently obtained and ammunition, a revolver, and other items were found in the car.

As his sole assignment of error, appellant contends that the evidence found in the automobile was seized in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Section Ten of the Kentucky Constitution. He specifically asserts that the impoundment and subsequent search of the automobile which he had been driving violated his state and federal constitutional rights to be protected from unreasonable searches and seizures.¹ Appellant claims that the inventory search was not valid because his vehicle was illegally impounded. He states there was no evidence that the car was parked unsafely or illegally or that its contents were in danger. Since the impoundment was, therefore, unlawful, appellant maintains the subsequent inventory search by Dayton police officers was also unlawful.

It appears from the suppression record that the Dayton police, at the time appellant was arrested, were acting upon the authority of an Ohio warrant that was for a past crime committed against the state of Ohio. They were not subject to the constitution and the laws of Kentucky in the performance of their official duties. Our state constitution in this situation has no extraterritorial effect. Inasmuch as the Dayton police were not in any way amenable to our laws in arresting the appellant and impounding the automobile, their authority to make the impoundment and inventory search is not the subject of an investigation by the courts of this state.

Section Ten of the Kentucky Constitution is not applicable in the case before us. This Court has recognized that our state’s constitution is a limitation only on the state to authorize, and its officers to engage in a search for, and seizure of evidence of crime. McMahan’s Administratrix v. Draffen, 242 Ky. 785, 47 S.W.2d 716 (1932). The conduct of the Dayton police as to the impoundment and subsequent search of the vehicle driven by appellant is to be judged by reference to the Ohio constitution. Specifically, in this case, Article I, Section 14 of the Ohio Constitution which provides for “the right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated ...” is applicable. Accordingly, did the Dayton police officers’ search of the car driven by appellant constitute a violation of the Fourth and Fourteenth Amendments of the United States Constitution and Section 14, Article I of the Ohio Constitution?

The U.S. Supreme Court and the Supreme Court of Ohio recognize the validity of legitimately conducted vehicle inventory searches. Florida v. Wells, 495 U.S. -, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Caponi, 12 Ohio St.3d 302, 466 N.E.2d 551, 12 O.B.R. 375 (1984); State v. Robinson, 58 Ohio St.2d 478, 391 N.E.2d 317, 12 O.O.3d 394 (1979). In Bertine, the U.S. Supreme Court recognized that “inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment .... The policies behind the warrant requirement are not implicated in any inventory search ... nor is the related concept of probable cause.” 479 U.S. at 371, 107 S.Ct. at 738. See also, Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Opperman recognized the constitutional validity of police inventory searches “where the process is aimed at securing or protecting the car and its contents.” 428 U.S. at 373, 96 S.Ct. at 3099, 49 L.Ed.2d at 1007. The Ohio Supreme Court followed Opperman in the case of State v. Robinson, supra, and held:

The court concluded that a routine inventory search of a lawfully impounded automobile 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 evi-dentiary search of the impounded automobile. It appears logical to conclude that a pretextual search is not an inventory search.

58 Ohio St.2d at 480, 391 N.E.2d 317.

In the later case of State v. Caponi, supra, the Ohio Supreme Court limited the boundaries of permissible inventory searches by holding that: “A search which is conducted with an investigatory intent and which is not conducted in the manner of an inventory search, does not constitute an ‘inventory search’ and may not be used as a pretext to conduct a warrantless evi-dentiary search.”

It is apparent that a warrantless inventory search, such as occurred here, is permissible only where the automobile has been legally impounded, and where the inventory search is not merely a pretext for an investigative search.

The policy of impoundment of a vehicle following a felony arrest is not always of questionable legality.² The vehicle was owned by a nonresident who could not be readily contacted. The arrestee was a vehicle user denying use, or, in the alternative, was a nonpermissive user.

In Colorado v. Bertine, supra, the accused was arrested while in the automobile for driving while intoxicated. Defendant could not remove the car from the road, therefore, the police impoundment and inventory search was proper.

In the case of State v. Bronaugh, 16 Ohio App.3d 237, 475 N.E.2d 171,16 O.B.R. 260 (1984), the defendant was arrested while in the automobile. The car did not belong to the defendant and his passenger/companion was not permitted to drive the car because he did not have a valid operator’s license. The impoundment of the vehicle was not found to be illegal.

While the facts of this case do not clearly fall within the situations enunciated in Florida v. Wells, supra; Colorado v. Betine, supra; or South Dakota v. Opperman, supra, the record does not indicate unreasonable behavior or motivation or bad faith on the part of the Dayton police. We find no support indicating that this was a pretextual investigatory search. The officers were following standard practice and procedure which allowed them to impound and inventory for safekeeping purposes the car of an arrested individual. We recall that appellant was not the registered owner of the vehicle and denied being the permissive user. Added to this state of the facts was the good faith action of the police officers in following police procedure. Upon discovery of the paper bag containing money and drugs the officers obtained a search warrant prior to conducting a thorough search.

We conclude that impoundment of the car allegedly driven by appellant was not illegal under either the Fourth or Fourteenth Amendments of the United States Constitution or Article I, Section 14 of the Ohio Constitution. As the vehicle was legally impounded, the officers had a right to conduct an inventory search thereof.

The judgment of Jefferson Circuit Court is affirmed.

STEPHENS, C.J., and LAMBERT, SPAIN and WINTERSHEIMER, JJ., concur. COMBS, J., dissents by separate opinion. LEIBSON, J., also dissents by separate opinion in which COMBS, J., joins.

1 . We have serious reservations concerning Helm’s standing to raise the issue of whether his Fourth Amendment rights had been violated. The automobile in question did not belong to him and apparently he did not lease it or have permission to use it. The evidence does not explain why he happened to be in possession of it near the time of arrest. Helm’s use of the vehicle and his possession of the ignition key did not necessarily establish standing or a "legitimate expectation of privacy” in the automobile. See, United States v. Satvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). Appellant referred to standing, but it was neither denied nor argued by Commonwealth. Since the evidence is unclear, we decline to address the issue of standing on the merits.

2 . Were § 10 of the Kentucky Constitution applicable to the facts herein, the legality of the impoundment of appellant's vehicle would be questionable under this Court’s decision in Wagner v. Commonwealth, Ky., 581 S.W.2d 352 (1979), (overruled on other grounds by Estep v. Commonwealth, Ky., 663 S.W.2d 213 [1983]). In light of Estep, the holding in Wagner as to automobile impoundment without a warrant is questionable.