[Cite as State v. Foster, 2017-Ohio-2858.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104809



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLANT

                                                vs.


                                 VALINTON L. FOSTER
                                                      DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-602936-A

        BEFORE:          Blackmon, J., McCormack, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                      May 18, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor

Mary M. Dyczek
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Steven L. Bradley
Marein and Bradley
526 Superior Avenue
222 Leader Building
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:

       {¶1} The state of Ohio appeals from the order of the trial court that suppressed

evidence obtained during a warrantless search of Valinton Foster’s (“Foster”) vehicle.

The state assigns the following error for our review:

       The trial court erred in granting [Foster’s] motion to suppress physical

       evidence and statements because the police conducted an inventory search

       of a closed container in good faith and pursuant to a standardized and

       written policy.

       {¶2} Having reviewed the record and pertinent law, we agree with the trial

court’s conclusion that the state’s search of a closed can was conducted with an

investigatory purpose, and the evidence obtained as a result of this search was properly

suppressed.

       {¶3} On January 22, 2016, Foster, who was driving a white BMW, was stopped

by Cleveland Police Det. Donald Kopchak (“Det. Kopchak”) for failing to signal a lane

change, having no front license plate, and operating a vehicle with tinted windows.

During the stop, Det. Kopchak determined that Foster’s license was suspended. Prior to

having the car towed to the impound lot, Det. Kopchak searched the car.    He opened a

can of Arizona Iced Tea, and observed residue, then used a chemically treated wipe to

confirm the presence of narcotics.
       {¶4} On February 23, 2016, Foster was indicted for possession of less than one

gram of heroin, in violation of R.C. 2925.11, and possession of criminal tools, in

violation of R.C. 2923.24(A), both with forfeiture specifications (cell phone and $3,412).

       {¶5} Foster pled not guilty to the charges. On May 6, 2016, Foster moved to

suppress the evidence against him, arguing that the search was conducted with an

investigatory purpose, and not as an inventory of the contents of the car.

       {¶6}    The trial court held an evidentiary hearing on July 25, 2016.   Det. Donald

Kopchak testified that while on routine patrol on St. Clair Avenue in Collinwood, he

observed Foster’s vehicle make an unsignalled lane change. The tinting on the window

obscured his view into the car, and the front plate was missing. Det. Kopchak stopped

the vehicle, then determined that Foster’s license was suspended.        According to Det.

Kopchak, police department policy required him to tow the vehicle, and the tow policy

instructs officers to open any closed, unlocked containers found inside the vehicle and

describe those containers.

       {¶7} Det. Kopchak testified that while inventorying the contents of the backseat,

he noticed a can of Arizona Iced Tea.    He stated that he was not thinking of opening the

can at that point, but he picked it up and “grabbed it just to move it.” After Det.

Kopchak picked it up, however, he determined that it felt heavier than normal.    When he

shook the can, he did not hear liquid inside. In light of his experience with such

containers being used to conceal other items,     he unscrewed the top.      He observed a

white powdery substance, then used a wipe to test it for the presence of narcotics, yielding

a positive result.
       {¶8} On cross-examination, Det. Kopchak acknowledged that he picked up small

white pebbles from the floor and from crevices of Foster’s BMW. He stated that he

wanted to see what they were and was not looking for evidence of a drug offense.

       {¶9} On August 3, 2016, the trial court granted the motion and suppressed all the

physical evidence as well as Foster’s statements at the time of the stop and search.        The

court duly noted the police department’s written policy regarding the search of vehicles

prior to towing.       However, the court concluded from Det. Kopchak’s testimony

regarding the use of false bottom containers, and the unusual heaviness of the Arizona

Iced Tea can, that his “purpose and intent” was to conduct an investigatory search.         The

court also held that the officer was required to obtain a warrant before opening the iced

tea container.

       {¶10} In its sole assigned error, the state argues that trial court erred in

determining that the search was not a valid inventory search because the officer complied

with the police department’s inventory search policy that instructs officers to open closed

and unlocked containers when a vehicle is to be towed.

       {¶11} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

the Ohio Supreme Court set forth the standard of review of a ruling on a motion to

suppress as follows:

       Appellate review of a motion to suppress presents a mixed question of law
       and fact. 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. State v. Mills (1992),
       62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate court
       must accept the trial court’s findings of fact if they are supported by
       competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1
       OBR 57, 437 N.E.2d 583. 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. State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d
        539.

Id. at ¶ 8.

        {¶12}   Inventory searches are a well-defined exception to the warrant requirement

of the Fourth Amendment. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct.

3092, 49 L.Ed.2d 1000 (1976); State v. Mesa, 87 Ohio St.3d 105, 108, 1999-Ohio-253,

717 N.E.2d 329.       Under this exception, when a vehicle is impounded, police are

permitted to follow a routine practice of administrative procedures for securing and

inventorying the vehicle’s contents.   Opperman.       Inventory searches    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 (3) protect police from dangerous

instrumentalities. Id.

        {¶13}    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 109, citing Opperman.      Rather, the validity of an inventory search of a lawfully

impounded vehicle is judged by the Fourth Amendment’s standard of reasonableness; it

must be conducted in good faith, and in accordance with reasonable standardized

procedures or established routine. Mesa, citing State v. Hathman, 65 Ohio St.3d 403,

604 N.E.2d 743 (1992), paragraph one of the syllabus; Colorado v. Bertine, 479 U.S. 367,

371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); and Opperman.
       {¶14}   An inventory search is reasonable when it is performed in good faith

pursuant to standard police policy, and “when the evidence does not demonstrate that the

procedure involved is merely a pretext for an evidentiary search of the impounded

vehicle.” State v. Robinson, 58 Ohio St.2d 478, 480, 391 N.E.2d 317 (1979). “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.”    Hathman at paragraph two of the syllabus.

       {¶15}   This court has recognized that policy and upheld inventory searches

undertaken in good faith and in accordance with standardized procedures for vehicles

being impounded.         See State v. Eason, 8th Dist. Cuyahoga No. 103575,

2016-Ohio-5516 (concluding that there was “ample evidence” that inventory search of the

vehicle, including its glove box and an unlocked cooler, was conducted in good faith and

in accordance with the city of Cleveland Heights’ standardized procedure regarding such

searches, and officers were not required to get a warrant to search these items).

       {¶16}   However, “[a] search which is conducted with an investigatory intent, and

which is not conducted in the manner of an inventory search, does not constitute an

‘inventory search.’” State v. Caponi, 12 Ohio St.3d 302, 303, 466 N.E.2d 551 (1984).

Likewise, “[i]nventory searches ‘must not be a ruse for a general rummaging in order to

discover incriminating evidence.’” State v. Burton, 8th Dist. Cuyahoga No. 64710, 1994

Ohio App. LEXIS 1590 (Apr. 14, 1994), quoting Florida v. Wells, 495 U.S. 1, 4, 110

S.Ct. 1632, 109 L.Ed.2d 1 (1990).       Accord State v. Woods, 8th Dist. Cuyahoga No.
98054, 2012-Ohio-5509, 25 (affirming conclusion that police used towing inventory as

pretext for a search of vehicle).

       {¶17}    In State v. Stewart, 8th Dist. Cuyahoga No. 94803, 2010-Ohio-6184, this

court affirmed the suppression of evidence where the police officers, who decided to

impound a vehicle due to improper registration, acknowledged that they searched the car

because they believed that they would find additional contraband and took the speakers

apart to search for drugs.    This court concluded that “[b]ecause the officers searched

Stewart’s vehicle with the investigatory intent of searching for drugs, they did not

conduct the search in good faith.” Id. at ¶ 25.

       {¶18}      Similarly, in State v. Seals, 8th Dist. Cuyahoga No. 90561,

2008-Ohio-5117, this court concluded that the trial court erred in failing to suppress the

evidence found after opening an aerosol can found in the trunk of a vehicle that was to be

impounded.      In that case, the record demonstrated that the officer found a rock of crack

on the driver’s seat, then found the aerosol can.   The officer explained that because drug

couriers frequently carry drugs in cans with false bottoms, he        shook the can.     He

concluded that it felt like a bean bag was inside, leading him to suspect that the can was

concealing drugs.    In concluding that the officer conducted an investigatory search, this

court stated:

       An inventory search “which is conducted with an investigatory intent, and
       which is not conducted in the manner of an inventory search, does not
       constitute an ‘inventory search’ and may not be used as a pretext to conduct
       a warrantless evidentiary search.” It appears that is exactly what Officer
       Florjanic did. He used the inventory search as a pretext for searching for
       more evidence. If he suspected evidence was contained in the can, he
       should have obtained a search warrant to open the can. The vehicle was
       not at risk of being driven away because it was to be towed to a secured
       police parking lot.

Id. at ¶ 28.

       {¶19}   Similarly, in this matter, the trial court stated as follows:

       Detective Kopchak did testify that the Cleveland Police inventory search
       policy requires the search of all unlocked containers. And the policy was
       submitted into evidence, and it does state that officers are to inventory
       property found in unlocked, closed containers. It also requires a
       description of the container.

       Despite the existence of this policy, Detective Kopchak’s further testimony
       gave the Court pause regarding the purpose and intent behind the search
       inside the Arizona Iced Tea can.

       He testified that in his experience and training, false-bottom containers such
       as the iced tea can, that he identified by its unusual heaviness, are
       commonly used to conceal drugs. Detective Kopchak also testified that
       false-bottom cans are used to conceal valuables.

       However, the detective’s actions in conducting this search led this Court to
       conclude that it was with an investigatory purpose. Not only did the
       officer open the can as soon as he retrieved it from the back, the officer
       also, in the body-camera footage, inspected minuscule white rocks found on
       the floor which could not possibly be considered part of the inventory of the
       vehicle.

       ***

       The Court finds that when Detective Kopchak opened the false bottom, the

       Arizona tea can, he did so with an investigatory purpose.       If he suspected

       evidence was contained in the can, he should have obtained a search

       warrant to open the can.    The vehicle was not at risk of being driven away

       because it was about to be towed to a secured police parking lot.        ***

       The evidence obtained and the statements elicited as a result of this search

       must be suppressed as the fruits of a poisonous tree.
       {¶20}     These findings are supported by competent, credible evidence.          Det.

Kopchak testified to the police department’s written tow inventory policy instructing

officers to open and inventory the contents of closed and unlocked containers.

However, he admitted that initially, he had no intention of opening the iced tea can and

lifted it only to move it. He then determined that the can was unusually heavy, but when

he shook it, he could not hear liquid inside. Det. Kopchak also stated that he is aware

that similar items are used for concealing their true contents.     He opened the container,

then swabbed the inside for narcotics, a clear investigatory act.    Additionally, the record

demonstrates that the officer closely examined the small particles on the floor and in the

crevices of the car and picked them up to “see what it was.”         However, car debris is

beyond the scope of a general inventory search.        The search for these items clearly

manifested the officer’s intention of finding evidence and not merely chronicling the

contents of the car.      Accordingly, we conclude that, despite the existence of a

standardized written policy, the officer’s actions went beyond the administrative

caretaking functions for securing and inventorying the vehicle’s contents, and

demonstrated that the search was conducted as an investigative, warrantless evidentiary

search.

       {¶21}    The state’s assigned error is without merit.

       {¶22}    Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

TIM McCORMACK, P.J., and
LARRY A. JONES, SR., J., CONCUR
