[Cite as State v. Whitlatch, 2017-Ohio-806.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2016CA00149
LESLIE WHITLATCH                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No.
                                                   2016CR0764



JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            March 6, 2017



APPEARANCES:



For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    STEVEN REISCH
Stark County Prosecutor                            Stark County Public Defender
BY: RONALD MARK CALDWELL                           201 Cleveland Avenue S.W., Ste. 104
110 Central Plaza South                            Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2016CA00149                                                         2

Gwin, P.J.

       {¶1}     Appellant, Leslie Whitlatch [“Whitlatch”] appeals the July 13, 2016 judgment

of the Stark County Court of Common Pleas, Stark County, Ohio overruling her motion to

suppress.

                                   Facts and Procedural History

       {¶2}     On April 14, 2016, around seven o'clock that night, Alliance Police Officer

Christopher McCord was called to assist another officer with a shoplifter caught at the

Alliance Wal-Mart store. Whitlatch was detained there in a small office after being

arrested inside the store for petty theft. Upon arriving at the store, McCord interviewed

Whitlatch about how she had arrived at the store since she was not from the Alliance

area. Whitlatch denied driving there, and initially claimed that a friend had dropped her

off. This story changed several times, however, with Whitlatch telling McCord that she

had taken the bus, that a family member had dropped her off, to someone else had

dropped her off. She, however, denied driving there. With these varying answers,

McCord had Wal-Mart pull the security recording of the parking lot. T. at 5-7; 8.

       {¶3}     The video recording showed Whitlatch driving a white van into the Wal-Mart

parking lot and parking this van before entering the store. T. at 7.

       {¶4}     As a result, McCord went outside to the parking lot and found this white van.

McCord saw on the passenger seat of the van a receipt with Whitlatch's name on it. The

receipt was from a cell phone store where Whitlatch had made a purchase earlier in the

day. T. at 7.

       {¶5}     McCord then checked Whitlatch's name and found that she had an arrest

warrant for her, and that she was under multiple driving suspensions. The video from the
Stark County, Case No. 2016CA00149                                                      3


Officer's cruiser camera shows McCord typing some information into his cruiser's lap top

computer after he parked behind the subject's vehicle. (Exhibit A). A voice can be heard

saying "suspended license.” (Exhibit A). Whitlatch’s sister owns the vehicle. (Exhibit A).

       {¶6}   McCord relayed this information to Wal-Mart, who told him that the store did

not want her van on its property. Based on the fact that Whitlatch had driven there with

a suspended license and that Wal-Mart had given her a trespass notice and wanted her

vehicle off its property, McCord took her keys and proceeded to her van in order to

impound it. As part of the impoundment policy of the Alliance Police Department, McCord

opened a door to the van and immediately smelled the overwhelming odor of chemicals.

From his training and experience — which included participating in some 40 meth lab

investigations of actual manufacturing, as well as being around more than 150 actual

meth-cooking vessels, labs, or waste — McCord knew immediately that the smell was

associated with the manufacturing of methamphetamine. The harsh and unique smell

took his breath away, so he opened the doors of the van to air out the vehicle. The

inventory search reveals, among other things, a heavy-duty trash bag that contained two

cooking vessels for a one-pot meth lab. T. at 8-12.

       {¶7}   Whitlatch was charged by indictment with one count each of illegal

manufacturing of drugs, illegal assembly or possession of chemicals for the manufacture

of drugs, and petty theft.

       {¶8}   Whitlatch filed a motion to suppress the items seized from the van, arguing

that the police did not have authority to search her parked van based upon her arrest

inside of Wal-Mart for shoplifting.
Stark County, Case No. 2016CA00149                                                      4


       {¶9}   Whitlatch argued that McCord’s police report makes no mention of Whitlatch

having a suspended operator's license nor was she charged with Driving under Suspension.

The only reason given by McCord for searching the vehicle on the cruiser video and in his

police report is the fact that Wal-Mart wants the van removed from its property.

       {¶10} The trial court, after conducting an evidentiary hearing, overruled

Whitlatch’s suppression motion by judgment entry.

       {¶11} In its judgment entry, the trial court found that the police had searched

Whitlatch's van on the basis that she was observed driving the van to Wal-Mart despite

having a suspended driver's license. Since her van was going to be towed pursuant to

Alliance City Ordinance 303.08(a)(9), the police search was an inventory search pursuant

to department policy regarding towed vehicles. The trial court specifically ruled in its

judgment entry, "The City of Alliance police department's search of Leslie Whitlatch's

vehicle was an inventory search of a lawfully impounded vehicle, authorized by a

municipal ordinance permitting impoundment of a vehicle located in a public place that

has been operated by a person whose license was suspended."

                                       Assignment of Error

       {¶12} Whitlatch raises one assignment of error,

       {¶13} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS THE SEARCH OF THE VEHICLE SHE HAD OPERATED.”

                                        Law and Analysis

       {¶14} 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
Stark County, Case No. 2016CA00149                                                         5


fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,

675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the

applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio

App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534

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.

       Inventory search.

       {¶15} “Inventory searches involve administrative procedures conducted by law

enforcement officials and are intended to (1) protect an individual’s property while it is in

police custody, (2) protect police against claims of lost, stolen or vandalized property, and

(3) protect police from dangerous instrumentalities.” State v. Mesa, 870 Ohio St.3d 105,

108, 1999-Ohio-253, 717 N.E.2d 329, citing South Dakota v. Opperman, 428 U.S. 364,

369 (1976).    “Because inventory searches are administrative caretaking functions

unrelated to criminal investigations, the policies underlying the Fourth Amendment
Stark County, Case No. 2016CA00149                                                       6

warrant requirement, including the standard of probable cause, are not implicated.” Mesa

at 108, citing Opperman at 370. “Rather, the validity of an inventory search of a lawfully

impounded vehicle is judged by the Fourth Amendment’s standard of reasonableness.”

Mesa at 108.

      {¶16} In State v. Hathman, 65 Ohio St.3d 403, 604 N.E.2d 743(1992), the Ohio

Supreme Court analyzed and followed various United States Supreme Court decisions

regarding inventory searches and held:

               1. To satisfy the requirements of the Fourth Amendment to the United

      States Constitution, an inventory search of a lawfully impounded vehicle

      must be conducted in good faith and in accordance with reasonable

      standardized procedure(s) or established routine.           (South Dakota v.

      Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; Colorado

      v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739; and Florida

      v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1, followed.)

               2. If, during a valid inventory search of a lawfully impounded vehicle,

      a law-enforcement official discovers a closed container, the container may

      only be opened as part of the inventory process if there is in existence a

      standardized policy or practice specifically governing the opening of such

      containers. (Colorado v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93

      L.Ed.2d 739; and Florida v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109

      L.Ed.2d 1, followed.)”

Accord, State v. Greeno, 5th Dist. Morgan No. 14AP002, 2014-Ohio-4718, ¶ 18-19.
Stark County, Case No. 2016CA00149                                                         7


       {¶17} The Ohio Supreme Court has stated, “the existence of a reasonable policy

or procedure governing inventory searches in general is insufficient to justify the opening

of closed containers encountered during the inventory search.” Hathman, 65 Ohio St.3d

at 408, 604 N.E.2d 743. It went on to state that,

              If, during a valid inventory search of a lawfully impounded vehicle, a

       law-enforcement official discovers a closed container, the container may

       only be opened as part of the inventory process if there is in existence a

       standardized policy or practice specifically governing the opening of such

       containers.

State v. Hathman, 65 Ohio St.3d 403, 604 N.E.2d 743 (1992) (emphasis added),

paragraph two of the syllabus.

       Lawful Impoundment

       {¶18} “The    ultimate    standard   set   forth   in   the   Fourth   Amendment    is

reasonableness.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d

706(1973). It is reasonable of police to exercise their discretion and impound a vehicle,

rather than leave it, “so long as that discretion is exercised according to standard criteria

and on the basis of something other than suspicion of evidence of criminal activity.”

Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739(1987). “This

discretion is necessarily limited to circumstances in which the officer is authorized to

impound the vehicle.” State v. Huddleston, 173 Ohio App.3d 17, 2007–Ohio–4455, ¶ 14,

citing Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007–Ohio–1103, and State v. Taylor

(1996), 114 Ohio App.3d 416.        “[A]uthority to impound should never be assumed,”

however. Taylor at 422. We have identified several situations in which police have
Stark County, Case No. 2016CA00149                                                        8


authority to impound a vehicle, among them, “when impoundment is [ ] authorized by

statute or municipal ordinance.” Id.; Accord, State v. Saunders, 5th Dist. Fairfield No. 14-

CA-57, 2015-Ohio-3535, ¶12.

       {¶19} Ordinance 303.08 of the Codified Ordinances of Alliance, Ohio provides in

relevant part,

       (a) Police officers are authorized to provide for the removal of a vehicle

       under the following circumstances:

                                            ***

       (9) When any vehicle has been operated by any person who is driving

       without a lawful license or while his license has been suspended or revoked

       and is located upon a public street or other property open to the public for

       purposes of vehicular travel or parking.

       {¶20} It is undisputed that, at the time Whitlatch was arrested for shoplifting, her

driver’s license was under suspension. Whitlatch was seen, via the Wal-Mart security

camera, operating her white van while having a suspended license. Thus, the police had

the legal authority to impound the vehicle and conduct an inventory search.

       {¶21} The sole assignment of error is overruled.
Stark County, Case No. 2016CA00149                                                9


      {¶22} The judgment of the Stark County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Wise, John J., concur
