[Cite as State v. Hinerman, 2019-Ohio-15.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. John W. Wise, P.J.
                                              :       Hon. W. Scott Gwin, J.
                        Plaintiff-Appellant   :       Hon. Earle E. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2018AP070030
KATIE L. HINERMAN                             :
                                              :
                     Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Tuscarawas
                                                  County Court of Common Pleas, Case No.
                                                  2017CR 12 0309

JUDGMENT:                                         Reversed and Remanded




DATE OF JUDGMENT ENTRY:                           January 2, 2019



APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

MICHAEL J. ERNEST                                 MARK PERLAKY
Assistant Prosecutor                              Assistant Public Defender
125 East High Avenue                              153 North Broadway
New Philadelphia, OH 44663                        New Philadelphia, OH 44663
[Cite as State v. Hinerman, 2019-Ohio-15.]


Gwin, J.,

        {¶1}    Plaintiff-appellant the State of Ohio appeals the July 23, 2018 Judgment

Entry of the Tuscarawas County Court of Common Pleas granting defendant-appellee

Katie L. Hinerman’s [“Hinerman”] motion to suppress evidence.

                                        Facts and Procedural History

        {¶2}    Hinerman was indicted for one count of Aggravated Possession of Drugs in

violation of R.C. 2925.11(A) and 2925.11(C)(1)(a). Following Hinerman’s arraignment,

she filed a Motion to Suppress Evidence on March 7, 2018. Hinerman’s motion alleged

the arresting officers had no lawful right to search her purse.

        {¶3}    On April 12, 2018, an evidentiary hearing was held on the motion to

suppress. At this hearing, the state presented the testimony of the investigation officer,

Michael Covington of the Dover Police Department, along with video recordings from

Officer Covington's cruiser camera and a recording by the canine officer's cruiser camera.

        {¶4}    In the case at bar, the evidence establishes Officer Michael Covington

performed a traffic stop on a motor vehicle on Rausch Court in Dover, Ohio due to a vehicle

operating without taillights. Hinerman was a passenger in the car. Officer Covington testified

that Hinerman proceeded to exit the vehicle as soon as it came to a stop. Officer Covington

testified that he ordered Hinerman to stay in the vehicle and he then proceeded to approach

the vehicle. Covington advised the driver of the reason for the stop, collected identifications

from both the driver and Hinerman, and at the time, Hinerman indicated that she might have

had a warrant for her arrest for an income tax violation, but that she had taken care of it.

        {¶5}    Officer Covington stated that he then returned to his patrol car and advised

that he detected an odor of marijuana in the vehicle and that he needed a canine to
Tuscarawas County, Case No. 2018AP070030                                                  3


respond to the scene. Officer Covington testified that after making the request for the

canine, he then proceeded to do a background check on Hinerman as well as the driver.

Officer Covington stated that he notified the Dover dispatcher with both identifications and

was advised that Hinerman had a valid warrant that was attached to her file. Officer

Covington testified that based on this information, he returned to the vehicle where

Hinerman stated that she believed she had taken care of it. Officer Covington testified

that Captain Matt Russell then obtained a hard copy of the warrant and brought it to the

scene.

         {¶6}   The cruiser video contains no audio track. Hinerman can clearly be seen

exiting the passenger side of the car clutching a purse, which is strapped to her right

shoulder. Near the back right bumper of the car, Hinerman turns toward the vehicle and

places her purse on the car. She is then handcuffed. An officer can be seen removing

the purse from the outside of the vehicle and closing the passenger-side door. The officer

carries the purse out of the view of the camera.

         {¶7}   The driver was removed from the vehicle, and a narcotics-sniffing canine was

subsequently walked around the vehicle. After a walk-around by the canine, the canine

alerted and the car was searched. Officer Covington testified that he was part of the

search and that suspected marijuana was located in the vehicle. Officer Covington stated

that some of the suspected marijuana was located on the driver's side and some was

located on the floorboard of the vehicle.

         {¶8}   A search of Hinerman’s purse revealed a suspected controlled substance.

The substance was sent to BCI as part of the investigation, and was determined to be a

controlled substance that is commonly referred to as "Spice."
Tuscarawas County, Case No. 2018AP070030                                                   4


       {¶9}   Near the end of the video of the traffic stop, the driver can be seen returning

to the car and, after receiving paperwork from an officer, the car is driven away.

       {¶10} Officer Covington testified that he believed it was the next day that he

received a copy of an order in the mail from the New Philadelphia Municipal Court that

cancelled Hinerman’s warrant. Officer Covington provide the document that he received

to the court as Exhibit A. Officer Covington stated that it was through this document that

he first discovered that Hinerman's warrant had been cancelled by the New Philadelphia

Municipal Court.    The document contains a file-stamp from the New Philadelphia

Municipal Court indicating that it had been filed with the court on April 18, 2017.

       {¶11} Following the hearing, the Court issued a Judgment Entry on April 13, 2018

taking the evidence under advisement, deferring a decision, and setting forth a briefing

schedule for legal memorandum to be filed on behalf of the parties. Thereafter, an

additional hearing was scheduled for June 26, 2018 for the purpose of allowing the court

to consider the legal positions of the state and Hinerman in light of the Supreme Court of

Ohio’s decision in State v. Banks-Harvey, 152 Ohio St.3d 368, 2018- Ohio-201, 96 N.E.3d

262.

       {¶12} Following this hearing, the court once again deferred the decision on the

motion to suppress and ordered additional "supplemental legal memoranda" be filed by

both of the parties concerning the applicability of the Banks-Harvey decision. After

consideration of all post-hearing memoranda and supplemental legal memoranda, on July

23, 2018 the court issued a Judgment Entry granting Appellee's Motion to Suppress

Evidence.
Tuscarawas County, Case No. 2018AP070030                                                   5

                                      Assignments of Error

       {¶13} The state raises three assignments of error,

       {¶14} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

GRANTING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE AS LAW

ENFORCEMENT OFFICERS WERE PERMITTED TO SEARCH THE APPELLEE'S

PURSE BASED UPON THE GOOD FAITH EXCEPTION AND SEARCH INCIDENT TO

ARREST.

       {¶15} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

GRANTING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BASED UPON

THE DECISION OF OHIO V. BANKS-HARVEY, 152 OHIO ST.3D 368, 2018- OHIO-201.

       {¶16} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

GRANTING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE AS LAW

ENFORCEMENT OFFICERS WERE PERMITTED TO SEARCH THE APPELLEE'S

PURSE BASED UPON INEVITABLE DISCOVERY RULE.”

                                        Law and Analysis

       State’s right to appeal.

       {¶17} A court of appeals has jurisdiction to entertain the state's appeal from a trial

court's decision to suppress evidence only where the state has complied with Crim.R.

12(K). State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-040364, C-040365, 2005-

Ohio-1326, ¶12, citing State v. Buckingham, 62 Ohio St.2d 14, 402 N.E.2d 536(1980),

syllabus (interpreting former Crim.R. 12(J)).

       {¶18} Crim.R. 12(K) states in pertinent part:
Tuscarawas County, Case No. 2018AP070030                                                   6


              When the state takes an appeal as provided by law from an order

       suppressing or excluding evidence, the prosecuting attorney shall certify

       that both of the following apply:

              (1) The appeal is not taken for the purpose of delay;

              (2) The ruling on the motion or motions has rendered the state's proof

       with respect to the pending charge so weak in its entirety that any

       reasonable possibility of effective prosecution has been destroyed.

              The appeal from an order suppressing or excluding evidence shall

       not be allowed unless the notice of appeal and the certification by the

       prosecuting attorney are filed with the clerk of the trial court within seven

       days after the date of the entry of the judgment or order granting the motion.

                                            ***

       {¶19} Our review of the record reveals a certifying statement timely filed by the

prosecutor as outlined in Crim.R. 12(K). We therefore have jurisdiction to proceed to the

merits of this appeal.

       STANDARD OF APPELLATE REVIEW.

       {¶20} 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
Tuscarawas County, Case No. 2018AP070030                                                 7

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

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.

                                            I., II, & III.

       ISSUES FOR APPEAL.

       {¶21} Each of the state’s assignments of error concern the officer’s authority to

arrest Hinerman and to search Hinerman’s purse.

       A. Whether the invalid arrest warrant mandates exclusion of the evidence

recovered from Hinerman’s purse.

       {¶22} The state contends the trial court erred in concluding that the search results

are not admissible because the warrant for her arrest had been recalled weeks before the

traffic stop.

       {¶23} When a reviewing court determines that a warrant should not have been

issued, it must then determine whether the good-faith exception applies, and that question
Tuscarawas County, Case No. 2018AP070030                                                 8

is a question of law, subject to de novo review by the appellate court. United States v.

Leary, 846 F.2d 592, 606 (10th Cir.1988).

        {¶24} Generally, the exclusionary rules states evidence obtained from illegal

searches and seizures is inadmissible in court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961).

        {¶25} The United States Supreme Court officially recognized the existence of a

good faith exception to the exclusionary rule in United States v. Leon, 468 U.S. 897, 104

S.Ct. 3405, 82 L.Ed.2d 677(1984); State v. Wilmoth, 22 Ohio St.3d 251, 259, 490 N.E.2d

1236(1986). In State v. Wilmoth the Ohio Supreme Court followed Leon and applied the

rule,

              1. The exclusionary rule should not be applied to suppress evidence

        obtained by police officers acting in objectively reasonable, good faith

        reliance on a search warrant issued by a detached and neutral magistrate

        but ultimately found to be invalid. (United States v. Leon [1984], 468 U.S.

        897, 104 S.Ct. 3405, 82 L.Ed.2d 677, followed.)

State v. Wilmoth at paragraph one of syllabus.

        {¶26} “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. As laid out in our cases, the

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).
Tuscarawas County, Case No. 2018AP070030                                                    9


       {¶27} “The good-faith exception to the exclusionary rule provides that the

exclusionary rule should not be applied to bar use of evidence obtained by officers acting

in an objectively reasonable reliance on a search warrant issued by a detached and

neutral magistrate but found to be unsupported by probable cause.” State v. Hoffman,

141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.2d 993, ¶ 29.

       {¶28} Two Supreme Court decisions closely mirror the facts of the case at bar,

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

Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).

       {¶29} In Herring, the issue was whether the good-faith exception applied when

officers had mistakenly relied on a warrant even though it had been earlier recalled. This

issue arose when a clerk mistakenly told a law enforcement officer that an arrest warrant

had been issued for a named individual. 555 U.S. at 137, 129 S.Ct. 695. With this

information, the officer arrested the individual. Id. The arrest led the officer to search the

individual, finding methamphetamine in his pocket. Id.

       {¶30} The clerk’s error was eventually discovered, and the government argued

that evidence of the methamphetamine was admissible even though the officer was

relying on the existence of a warrant that had been recalled months earlier. Id. at 138,

129 S.Ct. 695. The Supreme Court agreed, explaining that improperly obtained evidence

is ordinarily excluded only to deter official misconduct, and here there was nothing to

deter because the officer was acting based on the clerk’s record-keeping error. Id. at

144-48, 129 S.Ct. 695. As a result, the Supreme Court applied the good-faith exception

even though the warrant had no longer existed at the time of the search. Id. at 147-48,

129 S.Ct. 695.
Tuscarawas County, Case No. 2018AP070030                                                 10

       {¶31} Arizona v. Evans was similar. There too a law enforcement officer arrested

an individual based on computerized information showing an outstanding arrest warrant.

514 U.S. at 4, 115 S.Ct. 1185. The arrest led to a search, which revealed marijuana in

the individual’s possession. Id. Authorities later learned that the computerized entry was

a mistake, as the prior arrest warrant had been quashed. Id. Even though the warrant

had been quashed, the Supreme Court held that the evidence was admissible because

the arresting officer had reasonably relied on the computerized entry showing an

outstanding warrant. Id. at 11-16, 115 S.Ct. 1185.

       {¶32} In Herring and Evans, the absence of a valid arrest warrant did not preclude

application of the good-faith exception because there was no misconduct to deter.

Herring, 555 U.S. at 147-48, 129 S.Ct. 695; Evans, 514 U.S. at 15-16, 115 S.Ct. 1185.

Here too there was nothing to deter because the officers had made an arrest based upon

a warrant listed in the database. In the case at bar, Captain Russell went to the station

and returned to the scene of the traffic stop with a hard copy of the warrant for Hinerman’s

arrest. (T. at 9-10). Officer Covington testified, “Everything was showing that she did

have an active warrant.” (T. at 10). The officers were not required to take Hinerman at

her word.

       {¶33} In Evans the Court observed,

              If court employees were responsible for the erroneous computer

       record, the exclusion of evidence at trial would not sufficiently deter future

       errors so as to warrant such a severe sanction. First, as we noted in Leon,

       the exclusionary rule was historically designed as a means of deterring

       police misconduct, not mistakes by court employees. See Leon, supra, 468
Tuscarawas County, Case No. 2018AP070030                                               11

     U.S., at 916, 104 S.Ct. at 3417; see also Krull, supra, 480 U.S., at 350, 107

     S.Ct. at 1167. Second, respondent offers no evidence that court employees

     are inclined to ignore or subvert the Fourth Amendment or that lawlessness

     among these actors requires application of the extreme sanction of

     exclusion. See Leon, supra, 468 U.S., at 916, 104 S.Ct. 3417, and n. 14;

     see also Krull, supra, 480 U.S., at 350–351, 107 S.Ct. at 1167–1168. To

     the contrary, the Chief Clerk of the Justice Court testified at the suppression

     hearing that this type of error occurred once every three or four years. App.

     37.

            Finally, and most important, there is no basis for believing that

     application of the exclusionary rule in these circumstances will have a

     significant effect on court employees responsible for informing the police

     that a warrant has been quashed. Because court clerks are not adjuncts to

     the law enforcement team engaged in the often competitive enterprise of

     ferreting out crime, see Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct.

     367, 369, 92 L.Ed. 436 (1948), they have no stake in the outcome of

     particular criminal prosecutions. Cf. Leon, supra, 468 U.S., at 917, 104

     S.Ct. at 3417–3418; Krull, supra, 480 U.S., at 352, 107 S.Ct. at 1168. The

     threat of exclusion of evidence could not be expected to deter such

     individuals from failing to inform police officials that a warrant had been

     quashed. Cf. Leon, supra, 468 U.S., at 917, 104 S.Ct. at 3417–3418; Krull,

     supra, 480 U.S., at 352, 107 S.Ct. at 1168.
Tuscarawas County, Case No. 2018AP070030                                                 12


              If it were indeed a court clerk who was responsible for the erroneous

       entry on the police computer, application of the exclusionary rule also could

       not be expected to alter the behavior of the arresting officer. As the trial

       court in this case stated: “I think the police officer [was] bound to arrest. I

       think he would [have been] derelict in his duty if he failed to arrest.” App.

       51. Cf. Leon, supra, 468 U.S., at 920, 104 S.Ct., at 3419 (“‘Excluding the

      evidence can in no way affect [the officer’s] future conduct unless it is to

      make him less willing to do his duty.’” quoting Stone, 428 U.S., at 540, 96

      S.Ct., at 3073 (White, J., dissenting)). The Chief Clerk of the Justice Court

      testified that this type of error occurred “on[c]e every three or four years.”

      App. 37.      In fact, once the court clerks discovered the error, they

      immediately corrected it, Id., at 30, and then proceeded to search their files

      to make sure that no similar mistakes had occurred, Id., at 37. There is no

      indication that the arresting officer was not acting objectively reasonable

      when he relied upon the police computer record. Application of the Leon

      framework supports a categorical exception to the exclusionary rule for

      clerical errors of court employees. See Leon, supra, 468 U.S., at 916–922,

      104 S.Ct. at 3417–3420; Sheppard, supra, 468 U.S., at 990–991, 104 S.Ct.

      at 3428–3429.

Arizona v. Evans, 514 U.S. 1, 14-16, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). However,

this does not give the police a blanket-exception for faulty record keeping,

              If the police have been shown to be reckless in maintaining a warrant

      system, or to have knowingly made false entries to lay the groundwork for
Tuscarawas County, Case No. 2018AP070030                                                13


      future false arrests, exclusion would certainly be justified under our cases

      should such misconduct cause a Fourth Amendment violation. We said as

      much in Leon, explaining that an officer could not “obtain a warrant on the

      basis of a ‘bare bones’ affidavit and then rely on colleagues who are

      ignorant of the circumstances under which the warrant was obtained to

      conduct the search.” Id., at 923, n. 24, 104 S.Ct. 3405 (citing Whiteley v.

      Warden, Wyo. State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 28

      L.Ed.2d 306 (1971)). Petitioner’s fears that our decision will cause police

      departments to deliberately keep their officers ignorant, Brief for Petitioner

      37–39, are thus unfounded.

                                           ***

             In a case where systemic errors were demonstrated, it might be

      reckless for officers to rely on an unreliable warrant system. See Evans,

      514 U.S., at 17, 115 S.Ct. 1185 (O’Connor, J., concurring) (“Surely it would

      not be reasonable for the police to rely ... on a recordkeeping system ... that

      routinely leads to false arrests” (second emphasis added)); Hudson, 547

      U.S., at 604, 126 S.Ct. 2159 (KENNEDY, J., concurring in part and

      concurring in judgment) (“If a widespread pattern of violations were shown

      ... there would be reason for grave concern” (emphasis added)).

Herring v. United States, 555 U.S. 135, 146-147, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).

      {¶34} There is no evidence in the case at bar that errors in Dover police, dispatch

or court’s systems are routine or widespread. “Exclusion of any evidence in this case

would not serve the purpose of the exclusionary rule,” because there was no police
Tuscarawas County, Case No. 2018AP070030                                                 14

misconduct. See State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638,

¶ 97, quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 41 L.Ed.2d 182

(1974) (“The exclusionary rule should not be applied when ‘the official action was pursued

in complete good faith’ because it would have no deterrent effect”). The failure of police

in this case to update their database was a simple act of negligence, but not such an error

as to render the arrest illegal. The officers who arrested Hinerman had an honest,

legitimate belief that a valid arrest warrant existed. See, State v. Forrest, 10th Dist.

Franklin No. 11AP-291, 2011-Ohio-6234, ¶17.

       B. Whether the Officers could lawfully search Hinerman’s purse.

       {¶35} In State v. Banks-Harvey, the defendant was stopped for speeding and

removed to the police car. The officer was informed that there was an outstanding arrest

warrant for the defendant. The defendant's boyfriend, the owner of the car, and another

woman were in the car she had been driving. The owner was not arrested. The trooper

then entered the vehicle, retrieved appellant’s purse, placed it on the hood of his cruiser,

and searched it. The trooper found drugs and drug paraphernalia.

       {¶36} “The trial court rejected each of the three rationales the state put forth to

justify the warrantless search of appellant’s purse. The court held that under Arizona v.

Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of

appellant’s purse was not a lawful search incident to arrest. The court found that the

trooper retrieved and searched the purse after he had handcuffed and secured appellant

in his vehicle and so she was not within reach of her purse when he retrieved and

searched it.” Banks-Harvey, ¶7.
Tuscarawas County, Case No. 2018AP070030                                                 15

       {¶37} The trial court rejected the plain-view exception, under Minnesota v.

Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), as a justification

to the search of appellant’s purse, because there was no testimony to suggest that

appellant’s purse possessed an incriminating character that was immediately apparent.

And the trial court rejected the state’s argument that this was a valid inventory search

under South Dakota v. Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 49 L.Ed.2d 1000

(1976), because the car that contained appellant’s purse was not impounded. Banks-

Harvey, ¶8. However, the trial court concluded “that regardless of the fact that the trooper

did not have probable cause to search the vehicle at the time he searched appellant’s

purse, the officer had probable cause to search the car based on his observation of the

capsule in the car and the suspicious behavior of the occupants. Thus, the court held,

the contraband in appellant’s purse would inevitably have been discovered in the search

of the vehicle. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572

(1982).” Banks-Harvey, ¶9.

       {¶38} The Ohio Supreme Court accepted appellant’s appeal on the following

proposition of law:

              Because the mere adoption of a policy by the Highway Patrol to

       retrieve and inventory the belongings of an arrested person cannot

       authorize unconstitutional police action, the warrantless entry into a car to

       retrieve the purse of an already-arrested person and the subsequent

       warrantless removal and search of that purse violates the Fourth

       Amendment and Section 14, Article I of the Ohio Constitution

Banks-Harvey, ¶13.
Tuscarawas County, Case No. 2018AP070030                                                  16


         {¶39} The Ohio Supreme Court reversed the decision denying the motion to

suppress. The Ohio Supreme Court held that the seizure was not lawful because the

policy violated the Fourth Amendment where the defendant's effects are safe and do not

need to be stored while the defendant is in custody. Since the seizure was illegal, the

inventory search was also illegal. Banks-Harvey, ¶22.

         {¶40} Of importance to the case at bar, is the following observation made by the

Court,

                We do not question the objective reasonableness of a policy that

         requires a trooper to transport with an arrestee any personal property,

         including a purse that is on the arrestee’s person at the time of the arrest.

         But appellant’s purse was not on her person; it was in the vehicle. The

         trooper testified that he relied on standard Highway Patrol procedure to

         retrieve the purse from the vehicle. Even so, such a policy is insufficient to

         justify an objectively unreasonable intrusion into a place protected by the

         Fourth Amendment.

Banks-Harvey, ¶38.

         {¶41} The Ohio Supreme Court has previously upheld the search of a purse that

a woman was carrying at the time of her arrest. State v. Mathews, 46 Ohio St.2d 72, 76,

346 N.E.2d 151(1976). In Mathews, the detective retrieved the purse from the woman

upon arresting her, set the purse on a nearby table and searched its contents. Id. at 73.

The court concluded that the search was valid as incident to her lawful arrest. Id. at 76.

In Matthews, the Court stated,
Tuscarawas County, Case No. 2018AP070030                                              17

             Applying the Robinson decision [414 U.S. 218, 94 S.Ct. 467, 38

      L.Ed.2d 427(1973)] to the present case, it is apparent that, if appellee

      Wanda Mathews’ arrest was lawful, then the search of the purse clutched

      under her arm, and under her immediate control, was not unreasonable.

46 Ohio St. 2d at 75, 346 N.E.2d 151. This continues to be the law,

             Searches may also extend to the personal effects of an arrestee. We

      have held that the search of a purse is reasonable under the Fourth

      Amendment in certain circumstances, State v. Mathews (1976), 46 Ohio

      St.2d 72, 75 O.O.2d 150, 346 N.E.2d 151, and the United States Supreme

      Court has held that it is reasonable for police to search any container or

      article on a defendant’s person—including a shoulder bag—in accordance

      with established inventory procedures. Illinois v. Lafayette (1983), 462 U.S.

      640, 103 S.Ct. 2605, 77 L.Ed.2d 65.

State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶13.

      {¶42} In the case at bar, Hinerman’s purse was not inside the vehicle. Further,

the officer did not enter the car and retrieve the purse. Hinerman got out of the car

clutching the purse that is attached to her by the shoulder strap. Banks-Harvey would

reach the same result under the facts of the case at bar,

             We note that had the trooper obtained the purse in a legal way, such

      as retrieving it from the car at appellant’s request, we would have been

      compelled to reach a different result.     Likewise, if appellant had been

      arrested on the street with her purse on her person, we would have been

      compelled to reach a different result. But a law-enforcement policy that an
Tuscarawas County, Case No. 2018AP070030                                                  18


       arrestee’s personal effects go with them to jail, does not, by itself, authorize

       an officer to retrieve the arrestee’s personal effects from a place that is

       protected under the Fourth Amendment.

Banks-Harvey at ¶24 (emphasis added).

       {¶43} Accordingly, because the purse was voluntarily brought outside the car by

Hinerman who was then placed under arrest, we find the search of Hinerman’s purse was

pursuant to her arrest.

       {¶44} In the alternative, we note that Hinerman voluntarily brought the purse with

her when she got out of the car. Hinerman was arrested while outside the car. The driver

and the car left the scene; therefore, the purse would by necessity be transported to the

jail with Hinerman where it would be inventoried during Hinerman’s booking processes.

Banks-Harvey at ¶21. Thus, the drugs would have been inevitably discovered. State v.

Perkins, 18 Ohio St.3d 193, 196, 480 N.E.2d 763(1985).

       {¶45} The state’s First, Second and Third assignments of error are sustained.
Tuscarawas County, Case No. 2018AP070030                                           19


      {¶46} The judgment of the Tuscarawas County Court of Common Pleas is

reversed and this case is remanded to that court for further proceedings in accordance

with our opinion and the law.



By Gwin, J.,

Wise, John, J., and

Wise, Earle, J., concur
