[Cite as In re C.R., 2013-Ohio-1724.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

IN RE: C.R.                                          C.A. No.      12CA0078-M



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
                                                     CASE No.   2012 06 DQ 0428

                                 DECISION AND JOURNAL ENTRY

Dated: April 29, 2013



        HENSAL, Judge.

        {¶1}     The State of Ohio appeals an order of the Medina County Common Pleas Court,

Juvenile Division, granting C.R.’s motion to suppress. For the following reasons, we affirm.

                                                I.

        {¶2}     Officer John Fink was on patrol one evening when he learned that a sergeant had

stopped a car that was being driven by someone with an outstanding warrant. He went to assist

with the stop. When he arrived, he observed that the driver of the car had been arrested and that

the passengers were either standing at the back of a marked police car or seated in one of the

cars. According to Officer Fink, the sergeant was inside, or partially inside, the car that he had

stopped and was holding a bag. When the sergeant emerged from the car, he asked Officer Fink

to find out who the bag belonged to because there was marijuana and drug paraphernalia in it.

Officer Fink spoke to the passengers and learned that the bag belonged to C.R. After the police
                                                2


charged C.R. with possession of marijuana and possession of drug paraphernalia, he moved to

suppress the evidence, arguing that the sergeant did not have probable cause to search his bag.

       {¶3}    The sergeant who stopped the car did not testify at the hearing on C.R.’s motion.

Officer Fink, however, testified about what he saw and did during the stop. C.R. also testified at

the hearing. According to C.R., he was sitting in the backseat of the car, wearing the bag when

he was asked to step out of the car. C.R. testified that once he was outside of the car, the bag

was removed, at the request of the officer and it was placed on the back of the car. The officer

then searched C.R. and escorted him to a police car. Additionally, another witness testified that

C.R.’s bag was on the back of the car.

       {¶4}    Following the hearing, the trial court granted C.R.’s motion to suppress. The

court found that the State had not produced competent credible evidence of the basis for the

search. Acknowledging that warrantless searches are per se unreasonable and that the State has

the burden of proof to establish an exception to the warrant rule, the court concluded that the

State had not met its burden. The State has appealed, assigning four errors.

                                                II.

       THE TRIAL COURT ERRED IN GRANTING THE JUVENILE’S MOTION TO
       SUPPRESS BECAUSE THE RULES OF EVIDENCE DO NOT APPLY AT
       SUPPRESSION HEARINGS.

       {¶5}    The State argues that the trial court should not have prohibited Officer Fink from

testifying about where the sergeant found C.R.’s bag. During the suppression hearing, the

prosecutor asked the officer if, during his investigation, he was “made aware of information on

where that black bag was located in the vehicle[.]” The court sustained an objection to the

question. After the court’s ruling, the State proffered that Officer Fink would have testified that

he learned that the bag “was found in the vehicle.”
                                                 3


        {¶6}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

        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. 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. (citations omitted).

        {¶7}    Evidence Rule 104(A) provides that “[p]reliminary questions concerning * * * the

admissibility of evidence shall be determined by the court[.]” “In making its determination it is

not bound by the rules of evidence except those with respect to privilege.” Evid. R. 104(A); see

also Evid.R. 101(C)(1) (noting that, under Evid.R. 104, questions about the admissibility of

evidence are “determined by the court[.]”). Other Ohio district courts have determined that this

rule “gives [a] trial judge broad discretion concerning the admissibility of evidence presented in

a suppression hearing.” State v. Woodring, 63 Ohio App.3d 79, 81 (11th Dist. 1989); State v.

Edwards, 5th Dist. No. 2003 AP 09 0077, 2004-Ohio-870, ¶ 18.

        {¶8}    The State does not contest that Officer Fink’s proffered testimony regarding what

the sergeant told him was hearsay which did not fall under an exception to the rule. Rather, it

contends that the court should have allowed the testimony because there is not a per se bar on the

use of hearsay at suppression hearings. See Evid. R. 101(C)(1) and 104(A).

        {¶9}    In its original response to C.R.’s motion to suppress, the State argued that the

sergeant had probable cause to search the bag. At the time of the hearing the sergeant was

unavailable. The court inquired of the State whether they wished to proceed or continue the

matter due to the sergeant’s unavailability. The State responded that they would not seek a

continuance and wished to proceed. After further inquiry by the court, the State indicated it was
                                                   4


proceeding on the basis that the bag was searched pursuant to a valid inventory search of a motor

vehicle. The trial court gave both sides an opportunity to file briefs after the hearing regarding

the law and basis of a search due to an inventory of a motor vehicle, which they did.

       {¶10} Even if the trial court should have allowed the hearsay evidence at the

suppression hearing, it would not have changed the court’s ruling on the motion to suppress. The

State, therefore, did not suffer prejudice as a result of the exclusion of the hearsay evidence. See

Crim.R. 52(A); Woodring, 63 Ohio App.3d at 81. In finding that the State had “not met its

burden of proof,” the court noted that the sergeant who seized the bag “was not present at the

hearing to testify about where the bag was found or the legal basis for its seizure.” On the other

hand, C.R. and one of the other passengers of the car testified that the bag was on C.R.’s back

when he exited the car. Accordingly, even if Officer Fink had testified that he was told that the

bag was found in the car, it would not change the fact that the State did not submit evidence from

anyone who was present at the time the bag was found who could testify about where it was

found or provide the legal basis for its search.

       {¶11} “Hearsay evidence is inherently unreliable because the declarant is not testifying

under oath and is not subject to cross-examination.” State v. Lenoir, 2d Dist. No. Civ.A. 19241,

2003-Ohio-2820, ¶ 17; see Chambers v. Mississippi, 410 U.S. 284, 298 (1973); Pamer v. Foley,

9th Dist. No. 8000, 1976 WL 188739, *1 (Apr. 14, 1976) (“Hearsay evidence is not competent

evidence.”).   Upon review of the record, we cannot say that Officer Fink’s “inherently

unreliable” proffered hearsay testimony would have changed the trial court’s conclusion that the

State failed to meet its burden of proof. Lenoir at ¶ 17. The State’s first assignment of error is

overruled.
                                                5


                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ADMIT
       THE VEHICLE INVENTORY DOCUMENT MARKED AS STATE’S
       EXHIBIT TWO (2) UNDER EVIDENCE RULE 803(6).

       {¶12} The State argues that the trial court incorrectly refused to allow it to admit the

vehicle inventory report that was generated after the stop. The State attempted to ask Officer

Fink about the report, but the court sustained C.R.’s objection to the question because it

determined that the officer could not authenticate the report. The State argues that the report was

admissible under the business-records exception of the hearsay rule and that Officer Fink did not

have to have personal knowledge of the exact circumstances of how it was produced. According

to the State, he only had to have a working knowledge of the system used to produce the report.

       {¶13} Upon review of the transcript of the hearing on the motion to suppress, we note

that the State did not move to admit the vehicle inventory report. It also did not proffer the

report or Officer Fink’s answer to the prosecutor’s question after the court sustained C.R.’s

objection. The State, therefore, has failed to preserve the record for appeal, and this Court has

nothing to review. State v. Bobo, 9th Dist. No. 21581, 2004-Ohio-195, ¶ 6; Evid. R. 103(A)(2).

Its second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN GRANTING THE JUVENILE’S MOTION TO
       SUPPRESS BECAUSE THE CONTRABAND WAS LOCATED DURING A
       VALIDLY EXECUTED INVENTORY SEARCH OF THE AUTOMOBILE.

       {¶14} The State argues that the trial court should have denied the motion to suppress

because the sergeant searched C.R.’s bag pursuant to a valid inventory search. The Ohio

Supreme Court has determined that “a standard inventory search * * * of a lawfully impounded

automobile does not contravene the Fourth Amendment to the United States Constitution.” State
                                                 6


v. Robinson, 58 Ohio St.2d 478, 480-81 (1979). “To determine if an inventory search is valid,

the court must first determine whether the police lawfully impounded the vehicle. A vehicle can

be lawfully impounded when the occupant of the vehicle is arrested.” State v. Neal, 9th Dist. No.

25937, 2012-Ohio-2609, ¶ 7, quoting State v. Robinson, 9th Dist. No. 19905, 2000 WL 1587007,

*3 (Oct. 25, 2000).

       {¶15} In this case, it is not disputed that the driver of the car had been arrested at the

time of the search. The State asserts that, because the bag was in the car, the sergeant could open

it pursuant to an inventory search. It notes that Officer Fink testified that the sergeant “removed

a bag from the vehicle and handed it to me” to determine who owned the bag.

       {¶16} Although Officer Fink’s testimony suggests that the bag was inside the car at the

time the sergeant decided to impound the car, C.R. presented contrary evidence. According to

C.R., at the time of the stop, he was wearing the bag on his back. C.R. testified that it remained

on his back when he exited the vehicle. C.R. also testified that an officer later asked him to take

it off and place it on the back of the car and that he complied with this request. One of the other

passengers of the car corroborated that the bag was on C.R.’s back when C.R. exited the car and

that the bag was sitting on the back of the car. The passenger further testified that he saw the

sergeant pick the bag up off the back of the car and look inside the bag.

       {¶17} The trial court found that, because the sergeant did not testify, the State failed to

establish that the bag was found in the car or the basis for opening the bag. The State did not

argue that the sergeant could have searched the bag pursuant to a valid inventory search if it had

been found by the sergeant outside the car. Instead, the State argues that they were prejudiced by

the trial court’s ruling excluding evidence proffered to establish that the sergeant told Officer

Fink that he found the bag inside of the car. In light of C.R. and the other passenger’s testimony,
                                                  7


the court’s finding was supported by some competent, credible evidence. It, therefore, follows

that, when the trial court found that the search of the bag was not incident to a valid inventory

search of the car, it did not act in an unreasonable, arbitrary or unconscionable manner. The

State’s third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN GRANTING THE JUVENILE’S MOTION TO
       SUPPRESS BECAUSE THE SEARCH OF THE JUVENILE’S BAG WAS
       JUSTIFIED BY OFFICER SAFETY.

       {¶18} The State’s final argument is that the sergeant was allowed to search the bag

pursuant to a protective search. “In the course of a constitutionally valid stop, an officer may

conduct a limited search of the subject for weapons when, considering the totality of the

circumstances, a reasonably prudent person would be justified in believing that his safety was at

risk.” State v. McCray, 9th Dist. No. 99CA007310, 2000 WL 254909, *2 (Mar. 8, 2000). In this

case, however, Officer Fink was not present at the time of the search of the bag. He did not

testify about any specific safety risks that the officers faced. According to him, when he arrived,

all of the individuals who had been in the stopped car were either secured in a marked police car

or standing at the back of a marked police unit accompanied by an officer.

       {¶19} According to C.R., officers approached the car with guns out and told them to put

their hands up. They got the driver out of the car, and then returned for the rest of them. After

he got out, they told him to take his bag off and put it on the back of the car. They patted him

down and brought him over to a police car, where they detained him in handcuffs. C.R. testified

that the officers treated the other passengers in a similar manner.

       {¶20} It is not clear from the record when the sergeant searched C.R.’s bag. It appears,

however, that it was not until each of the passengers had been secured and taken some distance
                                                 8


from the stopped car. Upon review of the record, we conclude that the State failed to establish

that, at the time he searched the bag, a reasonable person in the sergeant’s position would have

been justified in believing that his safety or the safety of others was at risk. Accordingly, the

search does not fall within the officer-safety exception to the warrant rule. The State’s fourth

assignment of error is overruled.

                                                III.

       {¶21} The trial court did not err when it granted C.R.’s motion to suppress. The

judgment of the Medina County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                                 9




CARR, J.
CONCURS.

WHITMORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.

          {¶22} Although I agree that the State’s second assignment of error must be overruled, I

respectfully dissent with regard to the remainder of the opinion. I would sustain the State’s first

assignment of error and conclude that the trial court erred by excluding evidence from the

suppression hearing due to hearsay and authentication issues. Moreover, because the court’s

error materially prejudiced the State, I would reverse the court’s decision to grant C.R.’s motion

to suppress and remand the matter for further proceedings.

          {¶23} Multiple courts have recognized that trial courts have broad discretion in the

admission or exclusion of evidence in a suppression hearing. See, e.g., State v. Scrivens, 11th

Dist. No. 2009-T-0072, 2010-Ohio-712, ¶ 12; State v. Edwards, 5th Dist. No. 2003 AP 09 0077,

2004-Ohio-870, ¶ 18; State v. Bishop, 2d Dist. No. 2003-CA-37, 2004-Ohio-6221, ¶ 18; State v.

Faykosh, 6th Dist. No. L-01-1244, 2002-Ohio-6241, ¶ 23.           The reason for the discretion,

however, is that in making a preliminary determination about the admissibility of evidence a

court “is not bound by the rules of evidence except those with respect to privileges.” Evid.R.

104(A). The Supreme Court has specifically held that “the Rules of Evidence do not apply to

suppression hearings.” (Emphasis added.) State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-

1251, ¶ 17. Thus, “judicial officials at suppression hearings ‘may rely on hearsay and other

evidence, even though that evidence would not be admissible at trial.’” State v. Edwards, 107

Ohio St.3d 169, 2005-Ohio-6180, ¶ 14, quoting United States v. Raddatz, 447 U.S. 667, 679

(1980).
                                                 10


       {¶24} Although certain evidence may be inadmissible at trial due to its status as hearsay

or the proponent’s failure to authenticate it, “the standard of evidence required is different at the

suppression level.” Bozcar at ¶ 17.

       During a pretrial oral hearing on a motion to suppress evidence the trial court is
       not required to adhere strictly to the exclusionary rules of evidence in making a
       preliminary determination concerning the admissibility of evidence at a trial.

       Pursuant to Evid.R. 101(C)(1) and 104(A) a trial court has broad discretion
       concerning what evidence to permit at a pretrial motion to suppress hearing. Thus
       the status of testimony of a witness as hearsay does not per se bar its use or
       introduction before the court at such a hearing.

(Emphasis added.) Hagel, Thomas, Anderson’s Ohio Criminal Practice and Procedure, Section

24A.501.1, 377 (11th Ed.2005).

       There is * * * much to be said for the proposition that in proceedings where the
       judge himself is considering the admissibility of evidence, the exclusionary rules,
       aside from rules of privilege, should not be applicable; and the judge should
       receive the evidence and give it such weight as his judgment and experience
       counsel. However that may be, certainly there should be no automatic rule
       against the reception of hearsay evidence in such proceedings * * *.

United States v. Matlock, 415 U.S. 164, 175 (1974). Were it otherwise, the State would be

required to try at least a portion of its case to procedural perfection twice; once at the suppression

stage and once at the trial stage. Out of an abundance of caution, the State would have to

procure the appearance of every declarant and every custodian at every suppression hearing only

to recall the same witnesses for trial. The time and expense involved would be great. Moreover,

such a requirement would conflict with certain practical realities and accepted legal principles.

“Search warrants are repeatedly issued on ex parte affidavits containing out-of-court statements

of identified and unidentified persons.” Id. at 174. Additionally, absent a demonstrated need for

disclosure, the State has a privilege to “withhold from disclosure the identities of those who give

information to the police about crimes.” State v. Calhoun, 9th Dist. No. 26144, 2012-Ohio-2374,

¶ 8, quoting State v. Bays, 87 Ohio St.3d 15, 24 (1999). The idea that a trial court may reject
                                                 11


certain evidence at a suppression hearing strictly because it is hearsay or unauthenticated runs

afoul of the foregoing principles.

       {¶25} On redirect examination, the State asked Officer Fink whether, through his

investigation, he had been “made aware of information on where [C.R.’s backpack] was located

in the vehicle.” Defense counsel then objected on the basis of hearsay, and the trial court asked

the prosecutor whether any hearsay exception applied. The prosecutor responded by stating that,

per the Rules of Evidence, witnesses are permitted to testify as to hearsay statements at a

suppression hearing.     The court then sustained the hearsay objection absent any further

explanation. The State proffered that, had Officer Fink been permitted to answer, he would have

testified that the information he received was that C.R.’s bag had been found in the vehicle. The

State also notified the court that it had subpoenaed the sergeant who acted as the lead officer in

this case for the hearing, but that he was unable to attend due to an emergency. Nevertheless, the

court refused to allow Officer Fink to testify as to the location of C.R.’s bag.

       {¶26} The record supports the conclusion that the only reason the court refused to

permit Officer Fink to answer was that his answer was hearsay. A trial court cannot strike

evidence at a suppression hearing for the sole reason that it fails to strictly comport with the

hearsay rules. See Boczar at ¶ 17 (“[T]he Rules of Evidence do not apply to suppression

hearings.”). The State was entitled to rely upon the Supreme Court’s mandate in Boczar, which

stemmed from a plain language reading of the Rules of Evidence. I would conclude that, by

refusing to allow Officer Fink to answer, the trial court abused its discretion. See State v.

Amilcar, 10th Dist. No. 08AP-357, 2008-Ohio-6918, ¶ 35 (“While appellant argues that these

statements were inadmissible hearsay, the rules of evidence do not bar the admission of hearsay

at a suppression hearing. * * * Thus, even if counsel had objected, the testimony still would have
                                                12


been admissible.”); Edwards, 2004-Ohio-870, at ¶ 19 (“[H]earsay evidence is not per se barred

from use at a suppression hearing * * *.”); State v. Woodring, 63 Ohio App.3d 79, 81 (11th

Dist.1989) (“The acting judge’s decision to exclude the testimony therefore constituted an abuse

of discretion because the testimony’s undisputed status as hearsay does not per se bar its use in

this instance * * *.”).

        {¶27} The State was materially prejudiced by the court’s exclusion of Officer Fink’s

testimony. The trial court granted C.R.’s motion to suppress because the State failed to prove the

applicability of one of the established exceptions to the warrant requirement. Everyone agreed at

the suppression hearing that the applicable exception here was the inventory exception. See

State v. Goss, 9th Dist. No. 10CA009940, 2012-Ohio-857, ¶ 8-9 (routine inventory search of a

lawfully impounded vehicle allows police to search contents of vehicle as well as any closed

containers, pursuant to established policy). The trial court held that the State failed to meet its

burden of establishing the exception because no one testified where C.R.’s backpack was found.

Officer Fink’s excluded testimony would have been competent evidence that the backpack was

found in the vehicle. Because the defense witnesses testified that the backpack was removed

from the vehicle and placed on the trunk, the issue of the backpack’s location then would have

been a matter of credibility for the court to resolve in favor of either the State or C.R. See State

v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Because of its earlier ruling, the court

here failed to engage in any credibility determination. Accordingly, the court’s ruling materially

prejudiced the State.

        {¶28} For the reasons set forth above, I also would conclude that it was error for the trial

court to exclude the State’s Exhibit 2 (the inventory report) on the sole basis that it was not

properly authenticated. See Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, at ¶ 17 (“[T]he Rules
                                                   13


of Evidence do not apply to suppression hearings.”). See also State v. Keene, 7th Dist. No. 08

MA 95, 2009-Ohio-1201, ¶ 46-47. Nevertheless, I agree that the State’s second assignment of

error must be overruled because the State failed to proffer the contents of the report and, thus,

cannot demonstrate prejudice as a result of the report’s exclusion. Therefore, I would sustain the

State’s first assignment of error and overrule its second assignment of error. Because the trial

court never made a credibility determination in the first instance, I would not reach the State’s

third assignment of error. Instead, I would remand the matter for the trial court to make a

credibility determination in the first instance with the understanding that the State produced

competent evidence in support of the inventory exception to the warrant requirement. See

Burnside at ¶ 8. Based upon the foregoing resolution, I would conclude that the State’s fourth

assignment of error is moot and decline to address it. See App.R. 12(A)(1)(c). Therefore, I

respectfully concur in part and dissent in part.


APPEARANCES:

DEAN HOLMAN, Prosecuting Attorney, and MICHAEL O. MCGINTY, Assistant Prosecuting
Attorney, for Appellant.

L. RAY JONES, Attorney at Law, for Appellee.
