[Cite as State v. Beasley, 2019-Ohio-3936.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :    APPEAL NO. C-180152
                                                   TRIAL NO. B-1405968
        Plaintiff-Appellee,                   :

  vs.                                         :        O P I N I O N.

ANDREA BEASLEY,                               :

      Defendant-Appellant.                    :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 27, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
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M OCK , Presiding Judge.

         {¶1}   Because the state failed to establish that the officer was following an

official policy when he searched the vehicle pursuant to an inventory-search policy, it

failed to establish that the search was lawful. Therefore, the trial court erred when it

denied the motion to suppress in this case.

                          The Trial Court Refuses to Accept
                                   No-Contest Plea

         {¶2}   Defendant-appellant Andrea Beasley was charged with one count of

possession of drugs after Brandon Gehring, a police officer with Amberley Village,

found cocaine under the driver’s seat of the vehicle Beasley had been driving.

Gehring had executed a traffic stop after observing Beasley driving and having

confirmed that Beasley’s driver’s license had been suspended. Beasley filed a motion

to suppress the evidence found as a result of the search, which was denied by the trial

court.

         {¶3}   After the motion had been denied, Beasley attempted to enter a plea

of no contest, but her attorney had been told in chambers that “the Court [had] a

blanket policy [of] not accepting no contest pleas, and [that] the court [would] only

accept a guilty or not guilty [plea].” Counsel stated on the record that the state had

agreed to a no-contest plea, but that the trial court had indicated it would not be

accepted. Beasley then entered a guilty plea and was thereafter convicted by the trial

court.

         {¶4}   On appeal to this court, Beasley had argued that the trial court erred

when it refused to allow her to enter a plea of no contest pursuant to its “blanket

policy.” See State v. Beasley, 2016-Ohio-1603, 49 N.E.3d 378 (1st Dist.). While this

court agreed that such a policy was improper, the majority concluded that Beasley

had failed to preserve the issue for review by not seeking to enter the no-contest plea


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on the record. See id. at ¶ 13. On appeal to the Ohio Supreme Court, that decision

was reversed. See State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d

474. The court concluded that the unrefuted proffer by counsel of the content of the

in-chamber conference was sufficient to preserve the issue for appeal. See id. at ¶ 16.

The cause was then remanded to the trial court to allow Beasley to enter a plea of no

contest. After entering that plea, and after again being convicted by the trial court,

Beasley now appeals the denial of her motion to suppress.

                            The Motion to Suppress and
                                the Hearing Below

       {¶5}    After being indicted for possession of drugs, Beasley filed a motion to

suppress. In the motion, she claimed that “a search of Ms. Beasley’s vehicle was

performed without her consent.” She also claimed that “the inventory search was

merely a pretext for a warrantless evidentiary search.”

       {¶6}    The trial conducted a hearing on the motion to suppress. In spite of

the fact that Gehring clearly did not have a valid search warrant when he searched

the vehicle, that fact was not stipulated to below. This is important because the lack

of a warrant shifts the burden from the defendant to the state. See State v. Roberts,

110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 98; Maumee v. Weisner, 87

Ohio St.3d 295, 297, 720 N.E.2d 507 (1999); Xenia v. Wallace, 37 Ohio St.3d 216,

524 N.E.2d 889 (1988), paragraph two of the syllabus. In most cases involving a

traffic stop, the parties will stipulate that the officer did not have a warrant, and at

that point it is the state’s burden to proceed on the motion. In this case, however,

Beasley’s counsel was the one who questioned the officer despite the fact that Beasley

did not have had the burden at that point.

       {¶7}    This is troubling because the party that had the burden of proof was

not the party who mainly questioned the lone witness. Because of this, the party with


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no motivation to develop the factual record required by the procedural posture of the

case was charged with that function. But, according to the record, the parties agreed

to that procedure. We hope that, in the future, parties will avoid such a practice in

order to allow the record to be properly developed for both the trial court and, if

necessary, this court to review.

       {¶8}    During the hearing, Gehring testified that he stopped Beasley because

he had learned that her driver’s license was suspended. The video recording of the

stop was then played for the trial court. In the video, Gehring informed Beasley that

her license was suspended and that he could not allow her to drive the vehicle. He

then asked her if she had anything in the vehicle that she should not have. Beasley

asked why he wanted to know, and if he had to search her vehicle.             Gehring

responded that he was just asking. Gehring told her he was going to “take a look.”

While Beasley was in the cruiser, Gehring spoke to another officer on the scene. He

said “Will you start me a signal 38, please. Put that on the record. I said, I will put

that out there first. I asked her if there was anything in the car. And she has been

really vague about all that.” The second officer then looked under the seat and found

cocaine. Gehring asked “Where was that at?” and was told it was under the front

seat. Gehring responded “That’s why I wanted to look in the car. Because she was

really nervous. * * * I knew that there was something in there.” At no point during

the search did either officer appear to be writing anything down. Gehring then

informed Beasley that she was being arrested for possession of drugs.

       {¶9}    At that point, the recording was stopped and the hearing continued.

Gehring admitted that he did not ask for permission to search the vehicle “because

[he] didn’t need it.” He said that he had conducted “an inventory search of the

vehicle.”   On cross-examination by the state, Gehring explained the policy: “we

inventory the vehicle to make sure that we write down any pertinent belongings that


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might be in the vehicle so that her objects and items in the vehicle are protected

when it goes to the tow lot to make sure all of those items are returned.” Gehring

stated that when he asks a driver if they have anything in the vehicle “I look for not

only a verbal response, but I also look for a visual response. A lot of times you will

find that they have a shaky voice or they will stutter or if they are in the vehicle and

you ask, they will actually look at the location in which an item is recovered that is

illegal.” At the conclusion of argument, the trial court denied the motion to suppress.

       {¶10}   In two assignments of error, Beasley now appeals.

                        Inventory Searches are Constitutional

       {¶11}   In her first assignment of error, Beasley claims that the trial court

improperly denied her motion to suppress because inventory searches, in general,

are unconstitutional. But Beasley did not raise this issue below. This argument

cannot be raised for the first time on appeal. See State v. Combs, 62 Ohio St.3d 278,

290, 581 N.E.2d 1071 (1991). But the constitutionality of inventory searches has been

affirmed by both the Ohio Supreme Court and the United States Supreme Court. See

State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262; Florida

v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). We overrule Beasley’s

first assignment of error.

                      The State Failed To Establish the Officer
                          Followed an Established Policy

       {¶12}   In her second assignment of error, Beasley argues that the trial court

improperly denied her motion to suppress because the state failed to establish that

the evidence was seized pursuant to a proper inventory search. A search of private

property is unconstitutional unless it is conducted pursuant to a properly issued

search warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d

576 (1967).    There are a few well-defined exceptions to this rule, upon which

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warrantless searches have been upheld as “reasonable” under the Fourth

Amendment. One exception to the warrant requirement arises when the police in

the exercise of their “community caretaking functions” lawfully acquire temporary

custody of a privately-owned vehicle. Cady v. Dombrowski, 413 U.S. 433, 441-446,

93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Under those circumstances, the United States

Supreme Court has held that a warrantless inventory search of the automobile made

“pursuant to standard police procedures” and for the purpose of “securing or

protecting the car and its contents” is a reasonable police intrusion which does not

offend Fourth Amendment principles. South Dakota v. Opperman, 428 U.S. 364,

372-373, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

       {¶13}   The Ohio Supreme Court has held that “inventory searches of lawfully

impounded vehicles are reasonable under the Fourth Amendment when performed

in accordance with standard police procedure 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. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47

N.E.3d 821, ¶ 22, citing Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007-Ohio-1103,

862 N.E.2d 810, ¶ 11. As this court noted

       The rationale forming the basis for this body of jurisprudence is the

       principle that police officers should not have unbridled discretion

       when conducting searches, even routine searches performed in an

       administrative context. To ensure that the search is not a bad-faith

       excuse to search for contraband, the applicable policy or procedure

       must provide enough regulation to the inventory search to limit its

       scope to an objectively reasonable intrusion in accordance with the

       Fourth Amendment.

State v. Butler, 1st Dist. Hamilton No. C-950390, 1996 WL 47194, *2 (Feb. 7, 1996).


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       {¶14}   In this case, no evidence was presented regarding the policy that

Gehring was relying upon when searching the vehicle. The policy was not introduced

at the hearing, and Gehring did not testify to its details. Without that evidence, the

state cannot show that the search was “conducted in good faith and in accordance

with reasonable standardized procedure(s) or established routine.” See State v.

Hathman, 65 Ohio St.3d 403, 604, N.E.2d 743 (1992), paragraph one of syllabus. At

most, the record reflects that Amberley Village has a policy where “we inventory the

vehicle to make sure that we write down any pertinent belongings that might be in

the vehicle so that her objects and items in the vehicle are protected when it goes to

the tow lot to make sure all of those items are returned.” Not only is this testimony

insufficient, but the video does not indicate that the officers followed even this

“procedure” as neither officer is seen writing anything down, and no writing was

introduced at the hearing.

       {¶15}   Gehring testified that he did not have a search warrant when he

searched the vehicle. At that point, the state had the burden to establish that there

was an exception to the warrant requirement that allowed Gehring to search the

vehicle. On this record, the state failed to meet that burden. For this reason, we

sustain Beasley’s second assignment of error.




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                                      Conclusion

       {¶16}   The record does not support the trial court’s conclusion that the

evidence seized in this case was seized pursuant to a proper inventory search. The

state failed to meet its burden on this record.        We therefore reverse Beasley’s

conviction and the decision of the trial court denying her motion to suppress. We

remand this cause for further proceedings in accordance with the law and this

opinion.
                                                Judgment reversed and cause remanded.

MYERS and CROUSE, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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