[Cite as State v. Klase, 2019-Ohio-3392.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellant                     :   Appellate Case No. 28323
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-3372
                                                  :
 MICHAEL KLASE                                    :   (Criminal Appeal from
                                                  :    Common Pleas Court)
          Defendant-Appellee                      :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 23rd day of August, 2019.

                                             ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellant

DANIEL B. RHODES, Atty. Reg. No. 0089545, 117 South Main Street, Suite 400, Dayton,
Ohio 45422
      Attorney and Representative for Defendant-Appellee

                                            .............

FROELICH, J.
                                                                                         -2-


       {¶ 1} Pursuant to R.C. 2945.67(A) and Crim.R. 12(K), the State of Ohio appeals

from an order of the Montgomery County Court of Common Pleas, which granted Michael

Klase’s motion to suppress. For the following reasons, the trial court’s judgment will be

affirmed.

                            I. Facts and Procedural History

       {¶ 2} The evidence at the suppression hearing consisted of the testimony of Officer

Christopher White. His testimony established the following facts.

       {¶ 3} At 6:18 p.m. on August 27, 2018, Officer White was dispatched to the

residence of Klase’s sister, Pam Snyder, who requested assistance with a mental health

situation involving her brother. Mental health calls require two officers, and Officer Caleb

Lawson also responded to the scene. Upon arriving, the officers approached Klase, who

was calm and not aggressive. Officer White noticed Snyder gesturing to him from the

corner of the garage, and he went over to speak with her.

       {¶ 4} Snyder informed Officer White that Klase had been staying with her for a few

days and that he was “not acting like himself.” Snyder reported that Klase was convinced

that there was a conspiracy against him propagated by the neighbors. Klase had also

told Snyder that he had had an encounter with the police earlier that day during which the

police had shot him, but the bullets went through him because he was invincible. (Officer

White testified that no such encounter had occurred.) Klase had also mentioned a

woman named Natalie, whom Klase believed was a demonic person with shapeshifting

abilities; Klase was adamant that Natalie was going to die and that Klase was going to

make sure that it happened that day. Officer White testified that it was unclear whether

Natalie was a real or imagined person. Officer White stated that Klase told similar
                                                                                          -3-


information to Officer Lawson.

       {¶ 5} Officer White testified that he decided to “pink slip” Klase. White stated that

a “pink slip” involves emergency hospitalization with a 72-hour hold, pursuant to R.C.

5122.10. White stated that “[a] pink slip is the equivalent of an arrest but the difference

is instead of going to jail you go to the hospital where you are evaluated for whatever the

issue may be, in this case, mental illness.” According to White, scenarios where it is

appropriate to take someone to be “pink slipped” include when the person expresses

homicidal or suicidal ideation.

       {¶ 6} After speaking with Snyder, Officer White returned to his partner and Klase.

White explained to Klase that the officers would be taking him to the hospital. Klase

originally was adamant that he was not going to go, partly due to a belief that God would

not allow it. Klase sat down on a cot in the garage and asserted that God would not

allow him to be removed from the cot; Klase told the officers that they would be stricken

down by God if the officers touched him. The officers removed Klase from the cot without

any difficulty. Klase became cooperative, and the officers walked Klase to a cruiser

without any issues. Officer White stated that he “cut a deal with [Klase] that [the officers]

wouldn’t handcuff him if he remained cooperative all the way to the hospital.”

       {¶ 7} White stated that, because a pink slip is equivalent to an arrest, the officers

searched Klase and went through his pockets before placing him the back of the cruiser.

The officers found marijuana, a pipe for smoking marijuana, and a “crack pipe” with black

residue, which he put in an evidence bag.        Officer White further stated that Officer

Lawson had found, but did not open, an Altoids container; that container was also placed

in the evidence bag. Officer White expressly testified that he conducted a full search,
                                                                                          -4-


not a pat-down for weapons. He stated that, although Klase was not under arrest due to

suspicion of criminal activity, a “pink slip” is treated the same as an arrest.

       {¶ 8} Upon arriving at the hospital, the officers took Klase to an assigned room.

Hospital personnel requested that Klase change out of his clothes and into hospital

garments. Klase’s clothes were placed in a hospital property bag.        According to White,

per policy, the officers collected Klase’s property and placed it off to the side to be

provided to the hospital police.      Officer White stated that the property would be

inventoried by the Dayton officers and/or hospital police.         White testified that they

decided to help the hospital police with the inventory, and he noticed that Klase had an

Altoids container that neither he nor Officer Lawson had opened during the prior search.

White opened the tin and found what appeared to be crystal methamphetamine.

       {¶ 9} Officer White later filed misdemeanor charges for possession of marijuana

and possession of drug paraphernalia (minor misdemeanors).               White requested a

summons on the possession of drug paraphernalia based on the crack pipe, but he did

not know if charges had been filed. White testified that he did not arrest Klase for a

criminal offense.

       {¶ 10} On November 6, 2018, Klase was indicted for aggravated possession of

drugs (methamphetamine), a felony of the fifth degree. Klase moved to suppress the

drugs, and the trial court conducted a hearing during which Officer White testified. The

parties filed post-hearing memoranda. In its memorandum, the State asserted that the

officers had probable cause “to arrest” Klase under R.C. 5122.10 and possibly for

aggravated menacing based on his comments; the State claimed that the search of Klase

was authorized as a search incident to a lawful arrest. The State further argued that the
                                                                                        -5-


subsequent search of the Altoids canister was permissible pursuant to inventory

procedures.

       {¶ 11} The trial court granted the motion to suppress, concluding that the State

had failed to meet its burden of proving the validity of the warrantless searches for three

reasons. The court first concluded that the officers’ search did not constitute a search

incident to a lawful arrest. It explained:

              This argument is flawed for the reason the Defendant Klase was not

       placed under “arrest” under R.C. 5122.10. By the very terms of this statute,

       Klase was taken “into custody,” not in connection with a criminal charge, but

       for the noncriminal purpose of “being taken for examination by mental health

       professionals at a specified mental health facility identified by name.” R.C.

       5122.10 (C).    Indeed, the person taken “into custody” pursuant to this

       statute must be advised “that the custody-taking is not a criminal arrest.”

       Id.

              The State has offered no case law authority in support of the

       proposition that the “Search Incident to Arrest” Doctrine, which requires an

       arrest based upon probable cause that the defendant committed a criminal

       offense, extends to an administrative, noncriminal “custody-taking.”

       Furthermore, R.C. 5122.10 does not itself authorize a warrantless search

       of the person taken “into custody.”

       {¶ 12} Second, the trial court concluded that the officers did not have probable

cause to arrest Klase for aggravated menacing.

       {¶ 13} Third, the trial court concluded that the State failed to show that the
                                                                                           -6-


warrantless search was pursuant to a standardized police department policy for inventory

purposes. The court noted that the officer testified that whenever he “pink slips” an

individual, he conducts an “inventory search” of the person’s belongings before

transferring the belongings to the hospital. The court further noted, however, that the

officer “never testified the Dayton Police Department has a standardized, routine policy

for such inventory searches, what that policy is, and how he acted in conformity with that

standardized policy.”

       {¶ 14} The State appeals from the trial court’s ruling. Its sole assignment of error

states, “The trial court erred in finding that the warrantless search of defendant was in

violation of the Fourth Amendment and in suppressing the State’s evidence.”

                           II. Review of Suppression Decision

       {¶ 15} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.” Id.

       {¶ 16} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under the community-caretaking/emergency-aid
                                                                                         -7-


exception to the Fourth Amendment warrant requirement, a law-enforcement officer with

objectively reasonable grounds to believe that there is an immediate need for his or her

assistance to protect life or prevent serious injury may conduct a community-

caretaking/emergency-aid stop.1 State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008,

964 N.E.2d 1037, ¶ 26.

       {¶ 17} Community caretaking functions are “divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal statute.”

Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

Accordingly, Ohio appellate courts generally have held that police officers are not required

to possess reasonable articulable suspicion of criminal activity when exercising

community caretaking functions/emergency aid. E.g., State v. Pattin, 10th Dist. Franklin

No. 17AP-575, 2018-Ohio-3876, ¶ 10; State v. Norman, 136 Ohio App.3d 46, 54, 735

N.E.2d 953 (3d Dist.1999).

       {¶ 18} “The touchstone of the Fourth Amendment is reasonableness.” Florida v.

Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Whether a search

is reasonable under the Fourth Amendment depends upon the particular facts and

circumstances, viewed objectively by examining the totality of the circumstances. State

v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 14. To assess the

reasonableness of a search, courts must balance the need for the search against the

invasions which the search entails. See Terry at 20-21; State v. Polk, 150 Ohio St.3d



1 The parties’ arguments at the suppression hearing focused on whether the search of
Klase was lawful. Defense counsel did not argue that the initial encounter with Klase at
Snyder’s residence was unlawful or that the officers unlawfully took Klase into custody
under R.C. 5122.10.
                                                                                        -8-

29, 2017-Ohio-2735, 78 N.E.3d 834; Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct.

1391, 59 L.Ed.2d 660 (1979) (“[T]he permissibility of a particular law enforcement practice

is judged by balancing its intrusion on the individual’s Fourth Amendment interests

against its promotion of legitimate governmental interests.”). In general, warrantless

searches are per se unreasonable, subject to only a few specific well-established

exceptions. Leak at ¶ 15, citing Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173

L.Ed.2d 485 (2009), citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967).

        A. Nature of Klase’s Detention

        {¶ 19} The State acknowledges in its reply brief that Klase was not arrested

pursuant to criminal activity and that individuals subject to emergency civil commitment,

such as Klase, are entitled to Fourth Amendment protections. At issue is the scope of

those protections.

        {¶ 20} Under R.C. 5122.10,2 a police officer may take a person into custody and

immediately transport him or her to a hospital if the police officer “has reason to believe

that the person is a mentally ill person subject to hospitalization by court order under

division (B) of section 5122 .01 of the Revised Code, and represents a substantial risk of

physical harm to himself or others if allowed to remain at liberty pending examination.”

See former R.C. 5122.10; In re J.L., 2d Dist. Montgomery No. 26938, 2016-Ohio-5649,

¶ 17.

        {¶ 21} R.C. 5122.10 expressly states that a person subject to emergency



2 R.C. 5122.10 was amended effective September 28, 2018. We rely on the version in
effect at the time of the incident.
                                                                                           -9-


hospitalization under that section is not under arrest. The statute provides that “[a]

person taking the respondent into custody pursuant to this section shall explain to the

respondent: the name and professional designation and affiliation of the person taking

the respondent into custody; that the custody-taking is not a criminal arrest; and that the

person is being taken for examination by mental health professionals at a specified mental

health facility identified by name.” (Emphasis added.) Former R.C. 5122.10.

       {¶ 22} Moreover, R.C. 5122.29 specifies certain rights to which “all patients

hospitalized or committed pursuant to” R.C. Chapter 5122 are entitled. Those rights

generally include, among others, the right to communicate freely with the patient’s

counsel and physicians; to receive visitors, make telephone calls, and send letters; to

wear the patient’s own clothes and maintain his or her appearance according to personal

taste; to keep and use personal possessions, including toilet articles; to have individual

storage space, spending money, and reading materials (without censorship); and to have

reasonable privacy, to have social interaction with individuals of either sex, and to the free

exercise of religious worship. R.C. 5122.29 further states that the patient has “[t]he right

at all times to be treated with consideration and respect for the patient’s privacy and

dignity, including without limitation, the following:”

       (1) At the time a person is taken into custody for diagnosis, detention, or

       treatment under Chapter 5122. of the Revised Code, the person taking that

       person into custody shall take reasonable precautions to preserve and

       safeguard the personal property in the possession of or on the premises

       occupied by that person; * * *

       {¶ 23} R.C. Chapter 5122 thus makes clear that a person who is taken into custody
                                                                                         -10-


for emergency hospitalization is not to be treated identically to an individual placed under

arrest for criminal activity. At the suppression hearing, the officer oversimplified the

matter when he testified that a “pink slip is the equivalent of an arrest but the difference

is instead of going to jail you go to the hospital where you are evaluated for whatever the

issue may be, in this case, mental illness.”

       B. Search of Klase Prior to Transport to the Hospital

       {¶ 24} Among the exceptions to the prohibition against warrantless searches are

the protective pat-down for weapons under Terry and a search incident to a lawful arrest

under Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Protective pat-downs for weapons and searches incident to a lawful arrest are distinct

concepts with differing justifications and limitations.

              Once a lawful investigatory stop has been made, a police officer may

       conduct a limited protective search for concealed weapons if the officer

       reasonably believes that the suspect may be armed or a danger to the

       officer or to others. State v. Evans (1993), 67 Ohio St.3d 405, 408; State

       v. Molette, Montgomery App. No. 19694, 2003-Ohio-5965, ¶ 13.             “The

       purpose of this limited search is not to discover evidence of crime, but to

       allow the officer to pursue his investigation without fear of violence * * *.”

       Evans, 67 Ohio St.3d at 408, quoting Adams v. Williams (1972), 407 U.S.

       143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612.

              To justify a patdown search, “the police officer must be able to point

       to specific and articulable facts which, taken together with rational

       inferences from those facts, reasonably warrant that intrusion.” Terry, 392
                                                                                        -11-


      U.S. at 21. However, “[t]he officer need not be absolutely certain that the

      individual is armed; the issue is whether a reasonably prudent man in the

      circumstances would be warranted in the belief that his safety or that of

      others was in danger.” Id. at 27; State v. Smith (1978), 56 Ohio St.2d 405,

      407. The totality of the circumstances must “be viewed through the eyes

      of the reasonable and prudent police officer on the scene who must react

      to events as they unfold.” State v. Andrews (1991), 57 Ohio St.3d 86, 87–

      88, citing State v. Freeman (1980), 64 Ohio St.2d 291, 295.

             In contrast, “[w]hen conducting a search incident to arrest, police are

      not limited to a Terry pat-down for weapons, but may conduct a full search

      of the arrestee’s person for contraband or evidence of a crime.” State v.

      Gagaris, Butler App. No. CA2007-06-142, 2008-Ohio-5418, ¶ 16. “The

      justification or reason for the authority to search incident to a lawful arrest

      rests quite as much on the need to disarm the suspect in order to take him

      into custody as it does on the need to preserve evidence on his person for

      later use at trial.” United State v. Robinson (1973), 414 U.S. 218, 234, 94

      S.Ct. 467, 38 L.Ed.2d 427.

State v. Todd, 2d Dist. Montgomery No. 23921, 2011-Ohio-1740, ¶ 29-31.

      {¶ 25} As stated above, the State argued to the trial court that Klase was “arrested”

under R.C. 5122.10 and was properly subjected to a search incident to a lawful arrest.

On appeal, the State appears to have modified its argument that Klase was “under arrest”

when he was taken into custody and now asserts that “a search incident to emergency

custody is permissible under the Constitution just as a search incident to arrest is
                                                                                         -12-


permitted.”

       {¶ 26} The State argues that a search arising from emergency custody is not

limited to a Terry pat down. The State emphasizes that the touchstone of the Fourth

Amendment is reasonableness, see Cady, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706,

and that a full search (akin to a search incident to a lawful arrest) for involuntary

hospitalizations is reasonable because of the substantial risk that the individual could

attempt to harm the officers or himself or herself, including with objects or items that are

not typically used as weapons (e.g., pens or medication).

       {¶ 27} In support of its argument, the State relies on cases from Washington, Utah,

and South Dakota. Washington courts apply a “community caretaking” exception to the

warrant requirement in the area of non-criminal investigations. State v. Thompson, 151

Wash.2d 792, 802, 93 P.3d 228 (2004); State v. Lowrimore, 67 Wash.App. 949, 957, 841

P.2d 779 (1992) (discussing “emergency situation” exception to the warrant requirement).

For a search to fall within the community caretaking/emergency exception, the officer

must be motivated by the need to render aid, a reasonable person under the

circumstances would have thought that an emergency existed, and there must be some

reasonable basis to associate the emergency with the place searched. Thompson at

802; Lowrimore at 957-958, citing State v. Lynd, 54 Wash.App. 18, 771 P.2d 770 (1989).

Washington appellate courts have held that a search incident to a civil commitment is not

limited to a weapons pat-down under Terry, because the officer “has a duty to identify

and remove anything with which [a defendant] might harm himself or others, including

street drugs.” State v. A.A., 187 Wash.App. 475 (2015), citing State v. Dempsey, 88

Wash.App. 918, 947 P.2d 265 (1997); Lowrimore at 957. Applying that standard, the
                                                                                        -13-

Lowrimore court concluded that the police officer reasonably searched Lowrimore’s purse

for weapons based on Lowrimore’s emotionally unstable behavior and her parents’

statements that she was threatening suicide and carrying knives.

       {¶ 28} The State also relies on State v. Collins, 2002 Utah App. 253, 53 P.3d 953

(2002), in which the Utah appellate court concluded that “[a] person being placed in civil

protective custody can expect to be searched the same as an individual who is placed in

criminal arrest custody.” Id. at 957. The court reviewed the Utah statute authorizing the

involuntary commitment of an individual who, due to mental illness, is likely to injury

himself/herself or others. The court noted a statutory “concern for the safety of both the

individual being taken into custody and those the statute refers to as ‘others.’ ” Id. The

Collins court concluded that the statute gave implied authorization to conduct a search

incident to taking an individual into custody pursuant to that statute. Id.     The court

continued: “Indeed a protective custody search of a mentally ill individual may be more

warranted given the greater likelihood that they could injure themselves or others with a

concealed weapon.” Id.

       {¶ 29} The Collins court further concluded that the scope of the statutorily-

authorized search was not limited to “a simple weapons pat-down,” again emphasizing

that the purpose of the search under the statute was to protect not only the peace officer

but also the mentally ill individual and others. The Collins court noted in a footnote that

courts in Washington had discussed emergency circumstances and community

caretaking; the Utah court found such a discussion unnecessary, as it relied on only

statutory authority for the search.

       {¶ 30} Citing Collins, the South Dakota Supreme Court similarly held that a search
                                                                                       -14-

incident to protective custody was permissible, although perhaps not as broadly. Cordell

v. Weber, 2003 S.D. 143, 673 N.W.2d 49, 54 (2003). The court reasoned:

       South Dakota’s involuntary commitment statutes also recognize the need

       to provide protection to the committed person and the public. SDCL ch.

       27A-10.    Therefore, when placed in protective custody, a person’s

       reasonable expectation of privacy is curtailed for these purposes.        A

       contrary conclusion would frustrate the legislative intent of preserving the

       safety of the public and the individual taken into protective custody. We

       agree that under the Collins rationale, a reasonable and limited protective

       search incident to involuntary commitment is permitted in order to protect

       the mentally ill individual and that person’s custodians. A person placed in

       protective custody, while not having the same diminished expectation of

       privacy as an arrestee, does have a lesser expectation of privacy than the

       average citizen on the street.

Id. at 54-55.

       {¶ 31} In response to the State’s argument, Klase argues that emergency

hospitalization is not arrest, and thus R.C. Chapter 5122 does not implicitly authorize a

search incident to involuntary commitment akin to a search incident to a lawful arrest.

Klase asserts that allowing such a search “would go against the legislative intent of R.C.

5122.10 and expose the patient to one of the highest degrees of intrusion to their [sic]

privacy.”

       {¶ 32} Klase supports his argument citing Lindsey v. State, 282 Ga.App. 644, 639

S.E.2d 584 (2006). In Lindsey, a court order found, pursuant to a Georgia statute, that
                                                                                         -15-


Lindsey was a drug dependent person requiring involuntary treatment and presented a

substantial risk of imminent harm to himself or others. The order commanded any peace

officer to take Lindsey into custody and deliver him to a mental health facility or hospital

emergency room for examination. An officer located Lindsey at a bar and explained the

order to Lindsey. Pursuant to protocols governing arrests, the officers placed Lindsey in

handcuffs, patted down Lindsey, and emptied Lindsey’s pockets looking for weapons and

contraband. The officer located methamphetamine and placed Lindsey under arrest.

       {¶ 33} On appeal, the Georgia appellate court concluded that the drugs should

have been suppressed. The court found that the custody authorized by the statute at

issue was “plainly civil protective custody, not a criminal arrest.” Id. at 646-647. The

court thus concluded that “a peace officer executing an order to apprehend pursuant to

[the statute] does not thereby arrest the person to be examined such that a search

incident to arrest is authorized.”     Id. at 647.     In a footnote, the Lindsey court

acknowledged that “an officer who is transporting a person in a patrol car may, consistent

with the Fourth Amendment, perform a suitably limited search for weapons to protect his

own safety and that of the transported person and others in the area.” Id. at fn. 7.

       {¶ 34} In granting Klase’s motion to suppress, the trial court rejected the State’s

argument that it was entitled to conduct a warrantless search as a search incident to a

lawful arrest. We agree with the trial court’s conclusion. “While the criminal law of

search, seizure, and arrest may be helpful by way of analogy in analyzing the validity of

searches incident to civil detention, there is a basic difference between criminal

detentions and civil detentions and, therefore, the rules of the former do not routinely

apply to the latter.” Lowrimore, 67 Wash.App. at 956, 841 P.2d 779.
                                                                                          -16-


       {¶ 35} Moreover, as discussed above, the nature of a commitment under R.C.

5122.10 is not akin to an arrest. The purpose behind a police officer’s authorization to

take a person into custody under R.C. 5122.10 is not grounded in criminal law

enforcement, but instead in the need to provide mental health treatment to an individual

who is a danger to himself/herself or others. Moreover, by statute, persons subject to

emergency commitment retain greater interest in their privacy and personal autonomy

than those subject to a criminal arrest. Accordingly, we agree with the reasoning of the

Lindsey court that a police officer who takes custody of an individual under R.C. 5122.10

“does not thereby arrest the person to be examined such that a search incident to arrest

is authorized.” Lindsey, 282 Ga.App. at 647, 639 S.E.2d 584; see also State v. Harlow,

123 N.H. 547, 552, 465 A.2d 1210 (1983) (construing a statute allowing for protective

custody of incapacitated intoxicated persons as limiting “the scope of searches of

individuals in protective custody to what is necessary to obtain identification and to protect

the officer, jailer, or others, * * * consistent with the legislature’s intent to treat such

persons as sick and socially disabled persons, not as criminals.”).

       {¶ 36} As we have previously stated, “ ‘[w]e are sensitive to the delicate balance

between Fourth Amendment rights and a police officer’s safety.’ ” State v. Shern, 2018-

Ohio-5000, 126 N.E.3d 322, ¶ 24 (2d Dist.), quoting Smith v. Muniz, E.D.Cal. No. 2:15-

cv-1318-TLN-EFB P, 2017 WL 5010476, *8 (Nov. 2, 2017), quoting In re Frank V., 233

Cal.App.3d 1232, 1238, 285 Cal.Rptr. 16 (1991). We agree with courts throughout the

country that, for the safety of the police officers and others, police officers may conduct

limited pat-down searches for weapons prior to placing an individual subject to emergency

hospitalization in a cruiser and transporting that person to the hospital. However, in light
                                                                                         -17-


of the fact that the officers did not open the Altoids container when Klase was taken into

custody, we need not establish any bright-line test as to whether the officers lawfully

retrieved items from Klase’s pockets and could have opened the Altoids container prior

to placing Klase in the cruiser. Rather, we hold that a police officer may not conduct a

search akin to a search incident to a lawful arrest based solely on the ground that a person

is being taken into custody under R.C. 5122.10.

       {¶ 37} In this case, the officers conducted a search of Klase’s person prior to

transporting Klase to the hospital. The officers went into and removed items from Klase’s

pockets, including drug paraphernalia and the Altoids container. The officers placed

these items in a police evidence bag. The Altoids container was not opened before

Klase was placed in the cruiser, and the methamphetamine was not found prior to

transportation to the hospital.

       {¶ 38} After Klase arrived at the hospital, Klase was placed in a hospital room and

asked to put on hospital garments.      Officer White collected Klase’s belongings and

placed them in a hospital property bag; Klase was no longer in possession of any of his

personal belongings. Officer White testified that, at this time, he noticed the tin Altoids

container, which had not yet been searched. Officer White stated that, knowing that

Klase was “under arrest” and that the canister was Klase’s property, he believed that he

could open the canister and see what was inside of it. Officer White was aware, based

on his experience, that Altoids containers were sometimes used for “stashing drugs.”

       {¶ 39} Under these facts, Officer White could not rely on a “search incident”

rationale to open the Altoids canister. Assuming for sake of argument that the Altoids

container had been properly seized by the officers during the prior search of Klase, the
                                                                                        -18-


search of the Altoids canister at the hospital was not then necessary to ensure the safety

of the officer, Klase, or others. Accord Harlow, 123 N.H. at 552, 465 A.2d 1210 (search

of wallet of person in protective custody violated Fourth Amendment when the search

was unnecessary to determine the person’s identity or to protect the officer, jailer, or

others). Accordingly, Officer White’s search of the Altoids container, based on the fact

that Klase had been taken into custody under R.C. 5122.10, was unreasonable.

      C. Inventory Search

      {¶ 40} The State further claims that the methamphetamine in the Altoids container

inevitably would have been discovered as part of the inventory search of Klase’s

possessions conducted at the hospital.

      {¶ 41} “The inventory-search exception is a well-defined exception to the Fourth

Amendment’s warrant requirement.” State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-

Ohio-201, 96 N.E.3d 262, ¶ 20, citing Illinois v. Lafayette, 462 U.S. 640, 643, 103 S.Ct.

2605, 77 L.Ed.2d 65 (1983).        “An inventory search is not subject to the Fourth

Amendment’s warrant requirement or a probable-cause review, because it is a search

that is made for administrative reasons and is unrelated to a criminal investigation.” Id.

      {¶ 42} The Ohio Supreme Court recently expressed that it “take[s] no issue with

the reasonableness of an administrative policy requiring the search and inventory of

personal items that necessarily come into police custody as a result of an arrest.” Banks-

Harvey at ¶ 23. It stated:

      As a practical matter, the personal effects with a person at the time of his or

      her arrest must be stored while the person is in jail. And because the police

      are potentially responsible for the items, they are permitted to search and
                                                                                         -19-

       inventory the personal effects that come into their custody. Colorado v.

       Bertine, 479 U.S. 367, 373, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987)

       (upholding the search of a backpack in a vehicle as part of an inventory

       search of a lawfully impounded vehicle). This administrative search and

       inventory is intended to help guard against claims of theft or careless

       handling and also protects the police from dangerous instruments.          Id.

       Accord Lafayette[, 462 U.S.] at 647, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)

       (upholding the inventory search of an arrestee’s shoulder bag conducted at

       the police station). Even if less intrusive means of protecting property are

       available, such as sealing items in a plastic bag and placing them in a

       secured locker rather than searching and inventorying them, it is not

       unreasonable for police, as part of routine procedure incident to

       incarceration, to search any article or container in the arrestee’s possession

       in accordance with established inventory procedures. Lafayette at 647-

       648, 103 S.Ct. 2605.

Banks-Harvey at ¶ 21.3

       {¶ 43} Banks-Harvey involved an inventory search incident to the arrest. We

have found no Ohio cases discussing the scope of an inventory search incident to a civil




3 The Ohio Supreme Court in Banks-Harvey nevertheless found the search of the
defendant’s purse to be unlawful. It reasoned that, after defendant’s arrest, the trooper
did not lawfully retrieve the defendant’s purse from the vehicle she had been driving and
therefore the purse did not come into police custody as a result of her arrest. The court
thus concluded that the inventory exception did not apply to justify the trooper’s search of
her purse.
                                                                                         -20-


commitment under R.C. 5122.10.4


4  Other jurisdictions have taken varying approaches to inventory searches for civil
commitments. Several courts have held that the rationale for inventory searches applies
equally to criminal arrestees and civil detainees when brought to jail. Cordell, 2003 S.D.
143, 673 N.W.2d at 55, citing State v. Friend, 711 S.W.2d 508 (Mo.1986); State v. Toto,
123 N.H. 619, 465 A.2d 894 (N.H.1983); State v. Johnson, 122 N.M. 713, 930 P.2d 1165
(Ct.App.1996).
        In Colorado, the supreme court distinguished between inventory searches of the
property of persons under arrest and those taken into protective custody under a statute
that authorized certain intoxicated persons to be taken to a treatment facility, rather than
placed under arrest. The Colorado court held that, “[b]ecause civil detainees cannot be
treated as arrestees, there are two rules for inventory searches.” State v. Chaves, 855
P.2d 852, 855 (1993). The court explained:
        * * * When an inventory search is undertaken pursuant to an arrest, the
        police officer may completely search all of the arrestee’s belongings,
        including closed containers like suspected “bindle.” When such a search
        is conducted pursuant to protective custody, however, the scope of the
        officer’s inventory search is limited by the privacy interest of the detainee,
        and any closed containers must be set aside and a warrant obtained before
        they may be opened. Recognition of these separate rules is compelled by
        the Colorado Alcoholism and Intoxication Treatment Act. The status of the
        person subjected to the search (i.e., whether a person has been arrested or
        taken into protective custody) determines, within the parameters of
        reasonableness, how the inventory search may be conducted.
                This requirement that the police abide by different rules in different
        contexts is not unusual. Police officers frequently are given statutory
        duties that are civil in nature.        “The policeman, as a jack-of-all-
        emergencies, has ‘complex and multiple tasks to perform in addition to
        identifying and apprehending persons committing serious criminal
        offenses.’ ” 2 Wayne R. LaFave, Search and Seizure § 5.4(c) p.525 (2d
        ed. 1987) (quoting ABA Standards for Criminal Justice § 1-1.1(b) (2d ed.
        1980)). The purpose of the inventory search of a civil detainee is not to
        find drugs, but to ensure that all of the detainee’s possessions are held
        safely for him or her. The search also permits the officers to remove and
        isolate all possessions which may be dangerous if the detainee were
        permitted to retain the items while in custody, but does not permit the
        officers to search closed containers without a warrant.
(Citations omitted.) Chaves at 855. The Colorado Supreme Court thus affirmed the
suppression of cocaine discovered inside a folded dollar bill during an inventory search
conducted by the police after taking the intoxicated defendant into protective custody.
        Citing Chaves and other cases, Klase argues that the scope of an inventory search
for civil commitments should be more limited in this case. Because the State failed to
establish that the officer conducted a lawful inventory search under Ohio’s standard when
a person’s property comes into police possession as a result of an arrest, we do not need
                                                                                          -21-


       {¶ 44} A critical aspect of an inventory search in Ohio is that it must be conducted

in accordance with an existing policy. Inventory searches may constitutionally extend to

a search of closed containers “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; State v. Reese, 2d Dist.

Champaign No. 2018-Ohio-10, 2019-Ohio-399, ¶ 14.

       {¶ 45} “A police officer’s assertion that an inventory search was done pursuant to

a police department policy is not sufficient, standing alone, to meet the State’s burden of

proving that a warrantless search was reasonable because it fits within the inventory

search exception to the warrant requirement.” State v. Myrick, 2d Dist. Montgomery No.

21287, 2006-Ohio-580, ¶ 13, citing State v. Wilcoxson, 2d Dist. Montgomery No. 15928,

1997 WL 452011, *4 (July 25, 1997); State v. Cantrel, 2d Dist. Montgomery No. 27839,

2018-Ohio-3501, ¶ 41. To establish a lawful inventory search based on standard police

practice, “ ‘the evidence presented must demonstrate that the police department has a

standardized, routine policy, demonstrate what that policy is, and show how the officer’s

conduct conformed to that policy.’ ” Id., quoting Wilcoxson at *4.

       {¶ 46} The trial court found that the State failed to show that the warrantless search

of Klase’s personal property was conducted pursuant to a standardized police department

policy for inventory purposes. We agree.

       {¶ 47} Office White testified on direct examination about the inventory procedures

for emergency hospitalizations as follows:

       Q: And what do you do with the property? Once he is stripped of his


to determine whether Ohio law supports a different standard for civil commitments.
                                                                                       -22-


      property, he’s put into the garment, what do you do with that property?

      A: Unlike someone who voluntarily goes to the hospital or is admitted by us

      for other reasons – maybe they just are in need of medical aid or something

      like that – again, pink slips are equivalent to arrest. And so what becomes

      of his property is it is taken into custody by the police department of the

      hospital and they hold onto it pending whatever is to come next.

      Q: Are those items inventoried before giving them –

      A: Yes.

      Q: And go on, if you’d explain that.

      A: They’re inventoried before. We don’t have to help the hospital with

      inventorying them. We can easily just give them the stuff and say, hey, we

      went through it but if you want to go through it again, go for it. But, at the

      time, I noticed that there was a tin of Altoids can that I had not opened at

      the time of originally searching him but having him already been under

      arrest and knowing it was his property, I still knew I could open it and see

      what was going on inside of it. And I have seen those tins used before for

      stashing drugs. * * *

      Q: And did you go through the tin solely because of that or also because

      you were inventorying –

      A: Inventorying it. Like I said, we were trying to help the hospital out and I

      saw the tin and realized I had not yet gone through it prior.

On cross-examination, Officer White testified that, after Klase changed into hospital

garments, his belongings were placed in a hospital property bag, which White handed
                                                                                         -23-


over to the hospital police department staff. White confirmed that the officers had placed

the Altoids container in a police evidence bag prior to transporting Klase to the hospital.

       {¶ 48} Officer White’s testimony indicated that Klase’s property would be

inventoried, but also implied that he was suspicious that it contained drugs. Regardless,

the officer did not testify that a specific Dayton Police Department policy required him to

conduct an inventory search prior to turning over Klase’s property to the hospital police.

Moreover, White did not indicate that a Dayton Police Department policy authorized him

to open Klase’s closed containers as part of his involuntary emergency commitment. No

policy was offered into evidence.

       {¶ 49} Officer White’s testimony suggested that an inventory search would be

conducted in accordance with hospital policies and that he (White) conducted the search

to assist the hospital police. The State did not offer the hospital’s policy into evidence,

nor was there any evidence that any policy authorized Dayton police officers to conduct

an inventory search for the hospital police. Moreover, contrary to the State’s assertion,

there is no indication that a hospital inventory search is a “customary and typical

procedure” similar to a jail inventory search.

       {¶ 50} Accordingly, the trial court did not err in concluding that the State did not

establish that Officer White’s warrantless search of Klase’s personal property at the

hospital was conducted pursuant to a standardized police department policy for inventory

purposes.

       D. Good Faith Exception

       {¶ 51} Finally, the State contends that the evidence should not have been

suppressed, because Officer White “was acting in good faith when he searched Klase
                                                                                          -24-


and had a reasonable belief, even if mistaken, that he was authorized to search Klase.”

The State did not raise a good-faith argument in the trial court in its post-hearing

memorandum.

       {¶ 52} “When an officer acts with an objectively reasonable, good-faith belief that

his or her conduct is lawful, the deterrence rationale for the exclusionary rule loses force.”

Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 33, citing Davis v.

United States, 564 U.S. 229, 241, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). “To trigger

the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid

by the justice system. * * * [T]he exclusionary rule serves to deter deliberate, reckless, or

grossly negligent conduct, or in some circumstances recurring or systemic negligence.”

Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).

       {¶ 53} “The United States Supreme Court has applied the good-faith exception to

searches conducted in objectively reasonable, good-faith reliance on an invalid search

warrant issued by a detached and neutral magistrate, to searches conducted in

reasonable reliance on subsequently invalidated statutes, to searches conducted in

reasonable reliance on erroneous information in a warrant database, and to searches

conducted in reasonable reliance on binding judicial precedent.” (Citations omitted.)

Banks-Harvey at ¶ 33; see also State v. Hawks, 2019-Ohio-2350, __ N.E.3d __, ¶ 14 (2d

Dist.) (the good-faith exception has been applied almost exclusively in the context of a

defective search warrant or arrest warrant).

       {¶ 54} We do not question that Officer White acted with subjective good faith when

he opened the Altoids container at the hospital.            However, viewing his actions
                                                                                         -25-


objectively, we conclude that the officer’s opening of the closed Altoids container at the

hospital was not reasonable under the Fourth Amendment.

                                     III. Conclusion

       {¶ 55} The State’s assignment of error is overruled. The trial court’s judgment will

be affirmed.

                                     .............



DONOVAN, J., concurs.

WELBAUM, P.J., dissents:

       {¶ 56} I respectfully dissent from the majority’s holding in this case and would have

reversed the trial court’s decision granting Klase’s motion to suppress. In my opinion,

given the nature of R.C. 5122.10 and R.C. 5122.29, the initial search of Klase’s pockets

and the subsequent search of the Altoids tin was reasonable under the Fourth

Amendment.

       {¶ 57} I agree with the case law out of Washington and Utah holding that the scope

of a search conducted on a mentally ill person in need of emergency hospitalization is not

limited to a Terry pat down. See Lowrimore, 67 Wash.App.949, 957, 841 P.2d 779;

Collins, 2002 Utah App.253, 53 P.3d 953. Lowrimore and Collins both involved statutes

similar to R.C. 5122.10, and both of those cases stand for the proposition that the statutes

impliedly authorized a peace officer to conduct more than a Terry pat down on the person

being placed into custody so as to insure the safety of that person and others. Lowrimore

at ¶ 957; Collins at ¶ 14. In my opinion, a mere Terry pat down would not guarantee the

safety of mentally ill persons who could harm themselves or others with seemingly
                                                                                          -26-


innocuous items such as a fountain pen or medication.

       {¶ 58} I also agree with Collins that “[a] person being placed in civil protective

custody can expect to be searched the same as an individual who is placed in criminal

arrest custody.” Collins at ¶ 15. Although a mentally ill individual placed into protective

custody is not an arrestee, I believe there is a significant overlap between a search

incident to arrest and a search incident to placing a mentally ill person in protective

custody.    This overlap is due to the significant danger that mentally ill individuals could

injure themselves or others with seemingly innocuous items. Therefore, like a search

incident to arrest, I believe it is reasonable for an officer to remove all items of property

found on a mentally ill person being taken into custody and to also open all containers

found on that person. See State v. Frazee, 2d Dist. Montgomery No. 26699, 2015-Ohio-

4786, ¶ 19 (a search incident to arrest may extend to the personal effects of an arrestee

including opening containers found on the arrestee’s person). This is especially true in

this case considering the fact that Officer White had discovered drugs and drug

paraphernalia in Klase’s pockets, thereby providing the officer with probable cause to

believe the Altoids tin contained drugs.

       {¶ 59} It was also reasonable for the officer to open the Altoids tin in order to

preserve and safeguard Klase’s property. Pursuant to R.C. 5122.29(B)(1), Officer White

was required to “take reasonable precautions to preserve and safeguard the personal

property in the possession of [the mentally ill person being taken into custody for

emergency hospitalization].”    In my opinion, this authorized Officer White’s examination

of the Altoids tin. If the Altoids tin had contained money or some other lawful item of

value, it would have been necessary to know about those items so as to insure their safe
                                                                                          -27-


return. Therefore, I believe that R.C. 5122.29(B)(1) is a reasonable, protective law that

authorizes an officer to open containers found on a mentally ill person who is being taken

into custody for emergency hospitalization. Accordingly, because Officer White was

acting under the dictates of this statutory mandate, opening the Altoids tin was, in my

opinion, reasonable.

       {¶ 60} The majority mentions that under R.C. 5122.29, mentally ill patients subject

to emergency hospitalization are entitled to certain rights such as “to keep and use

personal possessions.” R.C. 5122.29(F)(4). However, it is important to note that this

portion of the statute also states that such rights must be “consistent with health and

safety.” R.C. 5122.29(F). At the time a mentally ill person is placed in custody for

emergency hospitalization he or she has 24 hours to be examined. R.C. 5122.10(E). It

may not be until after this examination that medical professionals would know whether

possessing certain items of property is consistent with the person’s health and safety. It

is therefore reasonable to remove the items of property found on a person who is taken

into custody under R.C. 5122.10 until it is determined that possessing such property is

consistent with the person’s health and safety.

       {¶ 61} Overall, the search at issue in this case was reasonable when balancing the

need for the search against the invasions that the search entailed. In my opinion, the

need to protect mentally ill persons from harming themselves or others is greater than the

right of privacy that they have in containers found on their person at the time they are

taken into civil custody. For this reason, I respectfully dissent from the majority’s holding

and would have reversed the decision of the trial court.
                          -28-


Copies sent to:

Mathias H. Heck
Heather N. Jans
Daniel B. Rhodes
Hon. Mary E. Montgomery
