State v. Kemp ( 2011 )

[Cite as State v. Kemp, 2011-Ohio-4235.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95802
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FIDEL KEMP
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-537239
BEFORE: Jones, P.J., Rocco, J., and Keough, J.
RELEASED AND JOURNALIZED: August 25, 2011
ATTORNEY FOR APPELLANT
Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristin Karkutt
Assistant Prosecuting Attorney
The Justice Center, 9 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, P.J.:
{¶ 1} Defendant-appellant, Fidel Kemp (“Kemp”), appeals the trial court’s denial of
his motion to suppress. Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶ 2} In 2010, Kemp was charged with drug trafficking, drug possession, and
possessing criminal tools. The charges included forfeiture specifications. Kemp filed a
motion to suppress evidence, which was denied after a full hearing. Kemp pleaded no
contest to the indictment and the trial court found him guilty of the charges. The trial court
then sentenced Kemp to 17 months in prison and fined him $500.
{¶ 3} The following pertinent evidence was presented at the hearing on the motion to
suppress.
{¶ 4} On April 27, 2010, Cleveland police officers Jamie Cruz (“Cruz”) and Kevin
Mateo (“Mateo”) were conducting random license plate checks in the area of East 9 Street
ht
and Prospect Avenue in downtown Cleveland. Cruz ran the license plate of the car Kemp
was driving and the information came back that the owner of the car had a suspended license.
Cruz testified that the vehicle owner was under a FRA suspension, which requires that the car
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be seized and not allowed on the road, no matter who is driving the car.
{¶ 5} The officers effectuated a traffic stop. The officers learned that Kemp was not
the registered owner of the car and did not have a drivers license. The officers arrested
Kemp for driving with a suspended license and placed him in the back of their police car.
{¶ 6} Cruz testified that as part of the process to tow the car, the officers took an
inventory of the car’s contents looking in “all compartments, mak[ing] sure there is nothing of
value, so that once it leaves our possession with the tow company, before it gets to the
impound lot, to make sure nothing was taken.” As a result of the inventory search, the police
found 1.16 grams of crack cocaine and two scales. The officers also confiscated $157 in
cash, a cell phone, and a camcorder.
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Financial Responsibility Act.
{¶ 7} Kemp now appeals, raising the following assignment of error for our review:
“The trial court committed reversible error by denying appellant, Fidel Kemp’s, motion
to suppress because the search of appellant’s vehicle was in violation of the Fourth
Amendment to the United States Constitution.”
Standard of Review
{¶ 8} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8,
the Ohio Supreme Court explained the standard of review for a motion to suppress as follows:
{¶ 9} “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, 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.”
Warrantless Searches
{¶ 10} Pursuant to the Fourth Amendment of the United States Constitution and
Section 14, Article I, of the Ohio Constitution, a warrantless search is presumptively
unreasonable unless it falls under a specifically established and delineated exception to the
warrant requirement. One exception exists for searches incident to a lawful arrest. Another
exception permits officers to conduct an administrative inventory search of a vehicle after that
vehicle has lawfully been taken into custody. See State v. Mesa, 87 Ohio St.3d 105, 108,
1999-Ohio-253, 717 N.E.2d 329.
{¶ 11} Kemp argues that the search of the car he was driving was unlawful because the
exception for searches incident to lawful arrest did not apply to the search. Relying on the
United States Supreme Court’s decision in Arizona v. Gant (2009), 556 U.S. 332, 129 S.Ct.
1710, 173 L.Ed.2d 485, Kemp argues that the search of his vehicle was no longer necessary or
justified once he was in police custody. In Gant, the Supreme Court held that a search of a
vehicle incident to an arrest violates the Fourth Amendment unless “the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of the arrest.” Id. at 1723.
{¶ 12} The state argues that the search of Kemp’s car was lawful pursuant to the
inventory search exception and the holding in Gant does not prohibit warrantless searches that
fall under another exception to the warrant requirement.
{¶ 13} Inventory searches are excluded from the warrant requirement because they are
an administrative function of the police that protect an owner’s property while it is in the
custody of the police, insure against claims of lost, stolen, or vandalized property, and guard
the police from danger. Mesa at 109. Police may conduct an inventory search of a vehicle
that is being impounded. State v. Peagler, 76 Ohio St.3d 496, 501, 1996-Ohio-73, 668
N.E.2d 489, citing Colorado v. Bertine (1987), 479 U.S. 367, 372-373, 107 S.Ct. 738, 93
L.Ed.2d 739.
{¶ 14} One requirement of the inventory search exception is that it must be a
reasonable search conducted without an investigatory intent. Whether the search is
reasonable depends on if it is performed in good faith pursuant to standard police policy, and
“the evidence does not demonstrate that the procedure involved is merely a pretext for an
evidentiary search of the impounded vehicle.” State v. Robinson (1979), 58 Ohio St.2d 478,
480, 391 N.E.2d 317. “Inventory searches ‘must not be a ruse for a general rummaging in
order to discover incriminating evidence.’” State v. Burton (Apr. 14, 1994), Cuyahoga App.
No. 64710, quoting Florida v. Wells (1990), 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1.
“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
(1984), 12 Ohio St.3d 302, 303, 466 N.E.2d 551.
{¶ 15} The Supreme Court noted in Gant that “a search of an arrestee’s vehicle will be
unreasonable unless police obtain a warrant or show that another exception to the warrant
requirement applies.” Id. at 1723-1724. Thus, as this court recently held in Cleveland v.
Cunningham, Cuyahoga App. No. 95267, 2011-Ohio-2276, the inventory search exception to
the warrant requirement of the Fourth Amendment was left unaffected by Gant. Id. at ¶20;
see, also, State v. Hobbs, Lake App. No. 2010-L-064, 2011-Ohio-1298; State v. Garnett,
Franklin App. No. 09AP-1149, 2010-Ohio-5865, ¶23; State v. Walker, Lake App. No.
2009-L-155, 2010-Ohio-4695.
{¶ 16} Thus, while Gant no longer allows searches of a suspect’s vehicle after he or
she has been arrested (subject to the two stated exceptions), Gant does not apply to the
inventory search exception to the warrant requirement. In other words, Gant did not
eviscerate the inventory search exception to the warrant requirement in cases where the
suspect’s vehicle is legally impounded by the police and subject to tow.
{¶ 17} In the case at bar, Officer Cruz testified “[w]e stopped the vehicle in order to
seize the vehicle.” He also testified to the purpose of an inventory search, including the one
he performed on the car Kemp was driving: to document all items in the car, including
valuables, so a claim could not later be made for missing property and to assure no property
was removed from the vehicle from the time it left the scene to its arrival at the impound lot.
Cruz explained that the city contracts with different private tow companies; therefore, a
vehicle being towed is not in police custody once it leaves the scene until it arrives at the
police impound lot. He stated that the search he performed on the car was conducted specific
to the department’s inventory search policy as it relates to towed vehicles and was not initiated
to look for evidence of any crime.
{¶ 18} It is undisputed that Kemp was the only occupant in the car, the car was not
registered to Kemp, and the information the police had was that the car’s owner was under a
FRA suspension, which meant that the car was not allowed to be on the road with any driver.
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Officer Cruz explained that if the owner of a car is under a FRA suspension, “[l]egally that
car is seized and it’s not allowed to be on the road with or without a licensed driver.” So
even if a licensed driver was readily available to drive the car from the scene, it would have
been illegal to do so.
{¶ 19} Therefore, since the car Kemp was driving was not allowed to be on the road,
the police properly seized the car and, in accordance with department policy, performed an
inventory search prior to the tow. The towing of the car was separate from Kemp’s arrest for
driving with a suspended license and the police had proper justification to search the car prior
to towing it.
{¶ 20} Finding no error with the search, the trial court properly overruled Kemp’s
motion to suppress.
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R.C. 4510.16 governs FRA suspensions and states, in part: “(A) No person, whose driver’s
* * * license * * * has been suspended or canceled pursuant to Chapter 4509. of the Revised Code,
shall operate any motor vehicle within this state, or knowingly permit any motor vehicle owned by the
person to be operated by another person in the state, during the period of the suspension or
cancellation, * * *. No person shall operate a motor vehicle within this state, or knowingly permit
any motor vehicle owned by the person to be operated by another person in the state, during the
period in which the person is required * * * to file and maintain proof of financial responsibility for a
violation of section 4509.101 of the Revised Code, unless proof of financial responsibility is
maintained with respect to that vehicle.” R.C. 4509.101 allows for a limited exception, which does
not apply in this case.
{¶ 21} Therefore, the assignment of error is overruled.
{¶ 22} Accordingly, judgment is 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR