[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

Amendment and Section 14 of the Ohio Constitution.

       {¶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
