[Cite as State v. Pennington, 2020-Ohio-757.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2019CA00092 JESSE PENNINGTON : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2019CR095
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 2, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO KRISTINA POWERS-GRIFFITHS Stark County Prosecutor Stark County Public Defender BY: RONALD MARK CALDWELL 201 Cleveland Avenue S.W., Ste 104 110 Central Plaza South Canton, OH 44702 5th Floor Canton, OH 44702 [Cite as State v. Pennington, 2020-Ohio-757.]
Gwin, J.
{¶1} Defendant-appellant Jesse Pennington [“Pennington”] appeals the May 20,
2019 judgment of the Stark County Court of Common Pleas, Stark County, Ohio
overruling his motion to suppress.
Facts and Procedural History
{¶2} On December 30, 2019, at 5:47 pm, Officer Matthew Krueger of the
Massillon Police Department observed a vehicle driving over the posted speed limits in a
25 mph zone. The officer testified that he was driving 25 mph and one car in front of him
was driving the posted speed. The vehicle in question was pulling away. The vehicle was
a red, two door Chevrolet. When the officer ran the license plate, the plate indicated that
the vehicle should be a gray, two door Chevrolet. As a result, the officer stopped the
vehicle. The vehicle was stopped approximately one mile from where the officer observed
the speeding infraction.
{¶3} On approaching the vehicle, Officer Kruger noted that there were only two
people inside the stopped vehicle — the driver and one passenger (Pennington). Officer
Kruger determined that the driver of this vehicle only had a valid temporary driving permit,
and therefore checked Pennington's ID in order to determine whether he could drive the
car away at the conclusion of the traffic stop. However, the license check revealed that
Pennington’s driver's license was under suspension.
{¶4} The officer stated that he smelled an odor of alcohol. The driver then
advised the officer that there was an open container in his backpack in the back seat.
The driver then gave the officer consent to search the automobile. The driver was then
removed from the vehicle "because of the open container.” The driver was placed in the Stark County, Case No. 2019CA00092 3
cruiser. Once the driver was placed inside the police cruiser, Officer Kruger then had
Pennington exit the vehicle and join the driver in the backseat of the cruiser. Officer Kruger
asked Pennington “if he knew of anything illegal that was in the vehicle and he said ‘no’”.
(T. at 11-12).
{¶5} Officer Kruger searched inside the vehicle and found an open container of
alcohol inside a backpack behind the driver's seat. The alcohol had spilled from this bottle.
As part of his search of the passenger compartment of the car, Kruger looked in the front
and saw a drawstring-type backpack bag on the floor of the front passenger seat (where
Pennington had been sitting). The drawstring was pulled shut. The officer did not notice
the backpack prior to Pennington exiting the vehicle. The officer admitted that he would
not have allowed Pennington to remove the backpack from the vehicle. However, he had
no specific recollection as to whether or not Pennington attempted to remove the backpack
from the automobile. Officer Kruger opened the bag and found inside some marijuana, a
marijuana pipe, a grinder, and six amphetamine pills. Because the bag was on the
passenger seat floor where Pennington had been seated, Officer Kruger returned to his
cruiser, read Pennington his Miranda rights, which Pennington waived, and asked
Pennington about the pills. Pennington admitted to Kruger that the bag and the drugs
belonged to him, that the pills were Adderall for which he did not have a prescription.
Pennington was arrested for possessing the drugs.
{¶6} Officer Kruger testified during the suppression hearing that he did not conduct
an inventory search of the car because he was not impounding the vehicle. Officer Kruger
did not charge the driver of the vehicle for the open container or the alcohol. The driver Stark County, Case No. 2019CA00092 4
was charged only with the speeding violation. Officer Kruger released the car to the driver’s
mother at the scene.
{¶7} The trial court overruled the motion to suppress by judgment entry:
Upon review, the Court finds that Officer Kruger was justified in
stopping the vehicle for the traffic violation. Once he made contact with the
occupants and observed the odor of alcohol, he was then justified in
investigating for a possible alcohol related offense. The Court further finds
that Officer Kruger obtained valid consent to search the vehicle, and that his
request that the occupants exit the vehicle prior to the search was
reasonable. Contrary to the Defendant's assertions, the Court finds no
evidence that police prevented the Defendant from retrieving his bag.
Rather, the bag remained inside the vehicle, which was searched subject to
valid consent provided by the driver. The Court further finds that probable
cause did exist to search the vehicle and containers inside in which alcohol
could be located, based upon the odor of alcohol coming from the vehicle as
well as the finding of one open container in a bag behind the driver seat.
State v. Pennington, Stark County Court of Common Pleas Case No. 2019-CR-0095,
Judgment Entry, filed May 20, 2019 at 3.
{¶8} The trial court further held that the search was valid under the inevitable
discovery doctrine. "Therefore," the trial court ruled, "even if the Court would find that the
officers did not have authority to search the defendant's car and its containers, the
contraband found within is still admissible because it inevitably would have been found
during the course of the search, which would have been conducted according to the Stark County, Case No. 2019CA00092 5
Massillon Police Department's procedures.” State v. Pennington, Stark County Court of
Common Pleas Case No. 2019-CR-0095, Judgment Entry, filed May 20, 2019 at 4.
Assignment of Error
{¶9} Pennington raises one Assignment of Error,
{¶10} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION
TO SUPPRESS EVIDENCE.”
Law and Analysis
{¶11} In his sole assignment of error, Pennington argues that the search of his
backpack was an unconstitutional warrantless search.
STANDARD OF APPELLATE REVIEW.
{¶12} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534 Stark County, Case No. 2019CA00092 6
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review Ornelas, supra.
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
ISSUE FOR APPEAL.
A. Whether the officer’s search of Pennington’s backpack pursuant to the driver’s
consent to search the car was constitutionally permissible.
{¶13} The trial court ruled that the driver’s consent to search the car gave the
officer authority to search the closed backpack of Pennington located on the floor of the
passenger seat where Pennington had been seated.
{¶14} Although the Fourth Amendment may permit a brief detention of property on
the basis of only “reasonable, articulable suspicion” that it contains contraband or evidence
of criminal activity, United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77
L.Ed.2d 110 (1983), it proscribes—except in certain well-defined circumstances—the
search of that property unless accomplished pursuant to judicial warrant issued upon
probable cause. See, e.g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619,
109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989); Mincey v. Arizona, 437 U.S. 385, 390, 98
S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 357, 88
S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). That guarantee protects alike the “traveler who
carries a toothbrush and a few articles of clothing in a paper bag” and “the sophisticated
executive with the locked attaché case.” United States v. Ross, 456 U.S. 798, 822, 102
S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982). Thus, “[w]hen a defendant moves to suppress Stark County, Case No. 2019CA00092 7
evidence recovered during a warrantless search, the state has the burden of showing that
the search fits within one of the defined exceptions to the Fourth Amendment’s warrant
requirement.” State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 18, citing
Athens v. Wolf, 38 Ohio St.2d 237, 241 (1974).
{¶15} No Fourth Amendment violation occurs when an individual voluntarily
consents to a search. See United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105,
153 L.Ed.2d 242(2002) (stating that "[p]olice officers act in full accord with the law when
they ask citizens for consent"); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.
2041, 36 L.Ed.2d 854(1973) ("[A] search conducted pursuant to a valid consent is
constitutionally permissible"); State v. Comen (1990), 50 Ohio St.3d 206, 211, 553 N.E.2d
640.
{¶16} The driver of the car had authority to allow Officer Kruger to search the car.
The driver admitted and told the officer that the open bottle of liquor was in the driver’s
backpack in the backseat The state presented no evidence that it was illegal for
Pennington to possess or to consume alcohol. Thus, there was no basis for conducting
a “probable cause” search of closed containers not belonging to the driver in a search for
alcohol. Therefore, the question in the case at bar is whether the driver’s consent to
search the car and the driver’s own backpack extended to allow Officer Kruger to search
Pennington’s closed backpack located on the passenger side floorboard where
Pennington had been seated.
1. For Consent of a Third Party to Validate a Search, the State Must Prove the Third
Party Had Joint Access, Control, or Common Authority Over the Subject of the Search. Stark County, Case No. 2019CA00092 8
{¶17} To say that the driver consented to a search of the car is not necessarily to
say that he consented to a search of the items it contained. In United States v. Matlock,
415 U.S. 164, 171-72, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court held that
when the government seeks to justify a warrantless search by proof of voluntary consent,
in the absence of proof that consent was given by the defendant, it “may show that
permission to search was obtained from a third party who possessed common authority
over or other sufficient relationship to the premises or effects sought to be inspected.” In
describing what constitutes common authority, the Supreme Court explained, “[c]ommon
authority is, of course, not to be implied from the mere property interest a third party has
in the property. The authority which justifies the third-party consent does not rest upon
the law of property [.]” Id. at 171, n. 7, 94 S.Ct. 988. Rather, the Court said, common
authority rests “on mutual use of the property by persons generally having joint access or
control for most purposes, so that it is reasonable to recognize that any of the co-
inhabitants has the right to permit the inspection in his own right and that the others have
assumed the risk that one of their number might permit the common area to be searched.”
Id. On this basis, a resident’s consent to search his home is not necessarily consent to
search a closed object within the home. See United States v. Karo, 468 U.S. 705, 725-
26, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (O’Connor, J., concurring) (“A homeowner’s
consent to a search of the home may not be effective consent to a search of a closed
object inside the home.”). See also, United States v. Waller, 426 F.3d 838, 845 (6th Cir.
2005).
{¶18} A valid consent to search the closed container must come from one who
has common authority over the effects sought to be inspected, one who has mutual use Stark County, Case No. 2019CA00092 9
of the property, and one who generally has joint access or control for most purposes.
Karo, 468 U.S. at 725-26, 104 S.Ct. 3296. The government bears the burden of
establishing the effectiveness of a third party’s consent. Illinois v. Rodriguez, 497 U.S.
177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). As one court has noted,
Suppose Rodriguez had checked his briefcase with United Airlines
for a flight. United could have consented to a search of its baggage handling
facilities, in which passengers anyway lack privacy interests; no one thinks
that United could consent to a search of all luggage in its possession. So
too with checkrooms at restaurants, parcels in transit with express
companies, and other containers in public places. Many a closed container
is accessible; opening it requires justification, United States v. Chadwick,
433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), just as turning over a
stereo system to observe its serial number requires justification. Arizona v.
Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
***
United States v. Rodriguez, 888 F.2d 519, 523(7th Cir. 1989).
{¶19} In the case at bar, the trial court did not find, nor did the state argue, that
the driver had authority to consent to a search of Pennington’s backpack, or that the driver
gave such consent to Officer Kruger. Officer Kruger did not believe that the driver had
common authority over the backpack found on the passenger side floor. Upon finding
contraband in that backpack, Officer Kruger immediately returned to the cruiser and
advised Pennington of his Miranda rights, “because the bag was sitting on the floorboard Stark County, Case No. 2019CA00092 10
where his feet were….” (T. at 15-16). Officer Kruger did not ask Pennington for consent
to search his backpack.
{¶20} In this case, it is obvious that the driver, who consented to the search of his
car in general, did not have common authority specifically with regard to Pennington’s
backpack. On these facts, we conclude that the driver did not have mutual use of the
backpack, nor did he have joint access and control for most purposes. Thus, he did not
have common authority to grant permission to search Pennington’s backpack.
2. Inevitable discovery.
{¶21} In the case at bar, the court further justified the search based upon
inevitable discovery because a search “would have been conducted according to the
Massillon Police Department's procedures.”
{¶22} In the case at bar, no contention has been raised that the officer's searching
of Pennington’s backpack involved a self-protective action necessary for the officer's safety.
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Smith v. Ohio, 494
U.S. 541, 542, 110 S.Ct. 1288, 1289, 108 L.Ed.2d 464 (1990). Neither the driver nor
Pennington had been arrested prior to the search of the car or Pennington’s backpack.
Officer Kruger admitted that he did not conduct an inventory search of the car. (T. at 16).
{¶23} In the case at bar, the state argues that the Massillon Police Department had
a policy of doing an inventory search of the passenger compartment of a motor vehicle
“whenever it was going to be turned over to a third party.” [Appellee’s Brief at 12].
{¶24} “Inventory searches involve administrative procedures conducted by law
enforcement officials and are intended to (1) protect an individual’s property while it is in
police custody, (2) protect police against claims of lost, stolen, or vandalized property, and Stark County, Case No. 2019CA00092 11
(3) protect police from dangerous instrumentalities.” State v. Mesa, 870 Ohio St.3d 105,
108, 1999-Ohio-253, 717 N.E.2d 329, citing South Dakota v. Opperman, 428 U.S. 364, 369
(1976). “Because inventory searches are administrative caretaking functions unrelated to
criminal investigations, the policies underlying the Fourth Amendment warrant requirement,
including the standard of probable cause, are not implicated.” Mesa at 108, citing
Opperman at 370. “Rather, the validity of an inventory search of a lawfully impounded
vehicle is judged by the Fourth Amendment’s standard of reasonableness.” Mesa at 108.
{¶25} In State v. Hathman, 65 Ohio St.3d 403, 604 N.E.2d 743(1992), the Ohio
Supreme Court analyzed and followed various United States Supreme Court decisions
regarding inventory searches and held:
1. To satisfy the requirements of the Fourth Amendment to the United
States Constitution, an inventory search of a lawfully impounded vehicle must
be conducted in good faith and in accordance with reasonable standardized
procedure(s) or established routine. (South Dakota v. Opperman (1976), 428
U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; Colorado v. Bertine (1987), 479
U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739; and Florida v. Wells (1990), 495
U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1, followed.)
2. If, during a valid inventory search of a lawfully impounded vehicle,
a law-enforcement official discovers a closed container, the container may
only be opened as part of the inventory process if there is in existence a
standardized policy or practice specifically governing the opening of such
containers. (Colorado v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93 Stark County, Case No. 2019CA00092 12
L.Ed.2d 739; and Florida v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109
L.Ed.2d 1, followed.)”
Accord, State v. Greeno, 5th Dist. Morgan No. 14AP002, 2014-Ohio-4718, ¶ 18-19.
{¶26} The Ohio Supreme Court has stated, “the existence of a reasonable policy
or procedure governing inventory searches in general is insufficient to justify the opening
of closed containers encountered during the inventory search.” Hathman, 65 Ohio St.3d
at 408, 604 N.E.2d 743. It went on to state that,
If, during a valid inventory search of a lawfully impounded vehicle, a
law-enforcement official discovers a closed container, the container may
only be opened as part of the inventory process if there is in existence a
standardized policy or practice specifically governing the opening of such
containers.
State v. Hathman, 65 Ohio St.3d 403, 604 N.E.2d 743 (1992), paragraph two of the
syllabus. (Emphasis added).
{¶27} The Ohio Supreme Court in Hathman found that there was “no evidence in
[the] case of any standardized policy or practice of the Ohio State Highway Patrol
specifically governing the opening of closed containers found during inventory searches.”
Id. The state trooper testified “concerning the scope of an inventory search related to the
areas (or parts) of a vehicle which are normally searched, i.e., the interior, trunk, glove
box, etc.” Id. at 408. However, the Supreme Court found that the state trooper’s
testimony fell “short of establishing that some policy or practice of the Highway Patrol
governed the opening of the closed containers.” The court held that the state trooper’s Stark County, Case No. 2019CA00092 13
opening of the closed containers found during the inventory search was constitutionally
impermissible, and that the evidence seized as a result had to be suppressed.
{¶28} In the case at bar, the following exchange occurred between the trial court
and Officer Kruger,
[The Court]: Okay. With regard to this policy or this issue that Ms.
Day brought up about releasing the car to a third party you said, and I want
to make sure I understand this right, that before you would release it to a
third party, regardless of what the nature of the stop was, that it's your policy
that you would search at least the passenger compartment of the vehicle
before turning it over to them?
[Officer Kruger]: Correct.
[The Court]: Okay. Is that like a Massillon Police Department policy
or is that just something you do?
[Officer Kruger]: There's a written policy for releasing it to a tow truck
driver.
[The Court]: So it's sort of the same thing?
[Officer Kruger]: Just me going through it just to insure that that
person wasn't taking anything illegal with them.
T. at 27-28. (Emphasis added).
{¶29} Officer Kruger testified that there is a written policy concerning an inventory
search of an impounded vehicle. Officer Kruger did not state that a standard procedure
to conduct a warrantless search of a car and to open closed containers found within the
car that was not impounded was reduced to a written policy by the Massillon Police Stark County, Case No. 2019CA00092 14
Department. The state did not introduce a written policy. See, State v. Banks-Harvey,
152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶36.
{¶30} We find no evidence that the state proved the Massillon Police Department
has a standardized policy or practice for conducting a warrantless, non-inventory search
and opening of closed containers inside a vehicle stopped for any traffic violation before
the vehicle is released to a third party. Officer Kruger’s testimony regarding inventory
searches is not applicable in the case at bar because Officer Kruger did not conduct an
inventory search of the vehicle. (T. at 16). In any event, the mere adoption of a policy by
the Massillon Police Department to conduct a warrantless search of a vehicle and open
closed containers cannot authorize unconstitutional police action that violates the Fourth
Amendment and Section 14 of the Ohio Constitution.
CONCLUSION.
{¶31} The driver did not have mutual use of the backpack, nor did he have joint
access and control for most purposes. Thus, he did not have common authority to grant
permission to search Pennington’s backpack.
{¶32} We find no evidence that the state proved the Massillon Police Department
has a standardized policy or practice for conducting a warrantless, non-inventory search
and opening of closed containers inside a vehicle stopped for a traffic violation before the
vehicle is released to a third party. In any event, the mere adoption of a policy by the
Massillon Police Department to conduct a warrantless search of a vehicle and open
closed containers cannot authorize unconstitutional police action that violates the Fourth
{¶33} Pennington’s sole Assignment of Error is sustained. Stark County, Case No. 2019CA00092 15
{¶34} The judgment of the Stark County Court of Common Pleas is reversed and
this case is remanded to that court for further proceedings in accordance with this
Decision and the Law.
By Gwin, J.,
Hoffman, P.J., and
Wise, Earle, J., concur