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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

SEARCH AND SEIZURE

IV. Warrantless Searches

Also see Arrest.

 

A. Exigent circumstances (511)

B. Investigative detention (503)

(1) Stop and frisk

(2) Luggage and packages

(3) Vehicles

C. Search incident to an arrest (512)

(1) Arrestee's clothing and property in his immediate possession

(2) Search of the immediate vicinity

(a) Premises

(b) Vehicles

(3) Bodily intrusions

(a) Strip and body cavity searches

(b) Specimens and exemplars for forensic purposes

D. Abandonment(513)

E. Consent searches (507)

(1) Authority to give consent

(2) Voluntariness of consent

(3) Scope of Consent

F. Plain view(514)

G. Automobiles and other movable objects (515)

(1) In general - expectation of privacy - exigent circumstances

(2) Packages, luggage and other objects

(3) Inventory searches

H. Administrative searches (516)

I. School searches (517)

J. Searches by private parties (508)

K. Border searches (518)

 

A. Exigent circumstances (511)

Also see Arrest.

Kentucky v. King (2011), 131 S.Ct. 1849 – With respect to police-created exigent circumstances, the focus is on the reasonableness of the officers’ actions. Bad faith on the part of officers is not the test, nor is reasonable forseeability people will destroy contraband in certain circumstances. Even when there is probable cause police are not limited to seeking a warrant as opposed to knocking on the door.

Michigan v. Fisher (2009), 130 S.Ct. 546 – Officers responding to report of a disturbance found a damaged vehicle, broken fence posts and windows, and blood outside, and could see the defendant inside screaming and throwing things. Warrantless entry was reasonable.

State v. Johnson, 187 Ohio App. 3d 322, 2010-Ohio-1790 – Police officers may not create an exigency through their own conduct. Following up on a tip that a boot joint was being operated at an apartment, officer opened the screen door, entered, and asked if premises were a boot joint. This entry was unlawful. Positive response to the question whether the place was a boot joint was the fruit of the poisonous tree. So was jettisoned heroin.

State v. Jones, 183 Ohio App. 3d 839, 2009-Ohio-4606 – Defendant had been the target of investigation for some time. Three controlled buys had been made, and an effort had been made to pick him up during a drug sweep, however no arrest warrants had been issued. He was arrested at a freeway ramp on the tip of an informant that he would be traveling to Troy. Search incident to that arrest turned up contraband. While there was probable cause for arrest, the Fourth Amendment protects against unreasonable seizures as well as unreasonable searches. Under the circumstances, the state was unable to demonstrate exigent circumstances excusing obtaining an arrest warrant before effecting the arrest.

State v. Browning, 190 Ohio App. 3d 400, 2010-Ohio-5417 – Officers responding to a disturbance at a campground forced entrance to the defendant’s trailer, then broke down the door to rear bedroom. She threw bleach at them, leading to felonious assault convictions. Since she had not encountered officers outside the trailer and retreated, exigent circumstances did not warrant entrance of the camper. But, in the court’s view, throwing bleach at the officers was not privileged conduct. Instead it was independent criminal conduct, so motion to suppress was properly overruled.

State v. Andrews, 177 Ohio App. 3d 593, 2008-Ohio-3993 – Officers responded to the report of a large teenage drinking party, but by the time they arrived everyone had moved inside. Kids with beer cans and cups were seen though a basement window. Defendant closed the door after officer made initial contact. When she opened the door again officers entered without permission. Defense moved to suppress evidence concerning underage drinking. Majority find exigent circumstances did not justify entry. Also see State v. Winston, 160 Ohio Misc. 2d 61, 2010-Ohio-5723.

State v. White, 175 Ohio App. 3d 302, 2008-Ohio-657, ¶17-21 – Court conflates the public safety and exigent circumstances exceptions to the warrants requirement to permit warrantless entry to a home where officer believed a meth lab was operating. Police were targeting a couple believed to be operating a meth lab. When the male defendant made a statement that there might be a lab at the woman‘s house, the police went there and pounded on the door for several minutes insisting she come to the door for a "knock and talk." They forced entry when they heard glass breaking. While R.C. 2933.33 authorizes warrantless entry if there is probable cause, here there was only suspicion. The court uses the emergency-aid exception to justify entry. Protective sweep of the entire house after the entry was unjustified, but because there was probable cause for a warrant without additional observations, inevitable discovery saves the day for the state.

State v. Johnson, 173 Ohio App. 3d 669, 2007-Ohio-6146 – Officer went to door of a motel room in response to a noise complaint. When the door was opened the officer saw and smelled marijuana. Defendant refused permission to enter and attempted to close door. Officer grabbed defendant, who managed to dodge a taser and fled. The defendant was entitled to refuse entry and the officer‘s grab was analogous to placing a foot in the door. Hot pursuit doesn‘t apply because the officer only had probable cause with respect to a minor misdemeanor drug violation, which only called for a citation. Officer is held to claim he only wanted to interview the defendant. Exigent circumstances did not excuse entry to prevent destruction of evidence of a minor misdemeanor. Concurring opinion questions whether reversal will affect prosecution for assault on an officer.

State v. Strozier, 172 Ohio App. 3d 780, 2007-Ohio-4575 -- Officers stopped a stolen truck and ordered all occupants to the ground, including the defendant who was a passenger. Before being frisked he was asked "Do you have anything on you that I need to know about? Anything that might stick me?" Defendant said he had a packet of brown stuff that proved to be heroin. Because he was handcuffed this amounted to custodial interrogation. Miranda warnings were required before the question was asked. The trial court erroneously applied the public safety exception. The initial question was open ended and not limited to the officer‘s safety. There was no indication public safety was at stake. Footnote questions whether there was reasonable suspicion warranting a pat down for weapons. Suppression extends to defendant‘s statements and the heroin.

State v. Keith, 178 Ohio App. 3d 46, 2008-Ohio-4326 – Officer followed motel operator into a room claiming he was concerned about her safety given the reputation of the hotel for drug activity and prostitution. Once inside, drugs were in plain view on top of a dresser. Exigent circumstances did not justify the officer‘s entry. He was there in response to a complaint a woman was making a nuisance of herself knocking on doors. When the officer saw her in the room he could simply have asked her to leave. There was no pursuit and no one was in immediate need of aid.

State v. Minear, 191 Ohio App. 3d 774, 2010-Ohio-6577 – Investigating a hit skip accident officers went to the defendant’s apartment complex where they noticed damage to his parked car sufficient to have caused injury. After calling for the apartment manager they noticed a motionless body on the floor, which did not move in response to pounding on windows. Exigent circumstances justified forced entry leading to observation that the defendant was intoxicated. Dissent focuses on the fact that by calling for the manager the officers had already decided to enter the apartment.

Brigham City, Utah v. Stuart (2006), 126 S.Ct. 1943 -- At 3:00 a.m. police responding to complaint of a loud party observed an altercation beginning in the kitchen.  Entry was reasonable, even though they acted in a law enforcement capacity rather than to aid the person struck.  Manner of entry after announcing their presence was also reasonable, and did not violate the Fourth Amendment's knock and announce rule.

Kirk v. Louisiana (2002), 122 S.Ct. 2458 -- Police with probable cause to arrest defendant for a drug offense unlawfully detained and searched him at his home without first obtaining a warrant. Remanded to determine whether exigent circumstances were present. Payton v. New York (1980), 445 U.S. 573, followed.

State v. Berry, 167 Ohio App. 3d 206, 2006-Ohio-3035 -- Neighbors heard screams from a house, but no one though to call 911 for up to an hour and a half. Entry to home to look for an injured person was reasonable. Opening a glowing Rubbermaid box which proved to be used for growing marijuana was reasonable as it may have been overheated, might have contained capacitors, or may have been used to keep medicine warm.

State v. Cal, Ottowa App. No. OT-03-025, 2004-Ohio-1329 -- Exigent circumstances did not validate warrantless entry to home when the officer could ascertain safety of occupants from the doorway.MTS properly granted as to obstructing official business charge.  But testimony concerning the defendant later grabbing the wheel of the cruiser causing a crash should not have been suppressed.

State v. Graley, 151 Ohio App. 3d 647, 2003-Ohio-678 -- Motorist was seen stuffing something into his mouth as he was pulled over. This and the officer's experience added up to probable cause to believe he was trying to dispose of crack. Exigent circumstances warranted forcing subject to spit out what was in his mouth.

State v. Taylor (2001), 144 Ohio App. 3d 255 -- Exigent circumstances justified warrantless entry of trailer where occupant had been missing for three days and the coat she was last seen wearing could be spotted through a window.

State v. Sheppard (2001), 144 Ohio App. 3d 135 -- Officers looked into an apartment from the fire escape and saw the man they were looking for flee into another room. Exigent circumstances of their own making did not left warrantless entry. Suppression reaches statements made by the defendant after he was arrested, but not identification testimony by the officer he had assaulted the previous day.

State v. Davis (1999), 133 Ohio App. 3d 114 -- Officer's observation of apparent underage drinking did not amount to exigent circumstances lefting warrantless entry of apartment to effect arrest.

State v. Christian, Fulton App. No. F-04-003, 2004-Ohio-3000 -- Police responding to report of loud music and underage drinking entered house after juvenile who opened the door ran upstairs. Though the officers heard loud music, they observed nothing indicating underage drinking. The exigent circumstances exception does not apply to misdemeanors, and, in any event, exigent circumstances do not exist without probable cause.  While nonresidents did not have standing to challenge the search, they have the benefit of the resident's success.

State v. Scott M. (1999), 135 Ohio App. 3d 253 -- Officers investigating a loud music complaint stepped into apartment when the door was opened by a nonresident, and refused to step outside when asked to do so by the resident. (1) Exigent circumstances did not validate warrantless entry. Where only a minor offense is involved the presumption that a warrantless entrance entry is unreasonable is difficult to rebut. (2) Good faith does not apply as the entry was without a warrant. (3) Plain view does not apply as the officers' access to the point of observation was in violation of the Fourth Amendment. Compare State v. Namay (2000), 106 Ohio Misc. 2d 72.

State v. Bowe (1988), 52 Ohio App. 3d 112, 114 -- The gravity of the underlying offense must be weighed in determining whether a warrantless entry to effect an arrest was warranted. Warrantless entry is justified if all the following apply: (1) the offense involved is a crime of violence; (2) the suspect is reasonably believed to be armed; (3) there is a clear showing of probable cause; (4) there is a strong reason to believe the suspect is in the premises; (5) it is likely the suspect will escape if not swiftly apprehended; and (6) the nonconsensual entry is made peaceably. Dorman v. United States (C.A.D.C. 1970), 435 F.2d 383, followed. Also see State v. Davis (1999), 133 Ohio App. 3d 114.

State v. Price (1999), 134 Ohio App. 3d 464 -- Loud music amounting to a minor misdemeanor under a municipal ordinance did not amount to exigent circumstances justifying warrantless entry of appellant's residence.

State v. Moore (2000), 90 Ohio St. 3d 47 -- Syllabus: "The smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search." Majority finds warrantless search of the defendant's person was justified by exigent circumstances.

State v. Myers, Marion App. Nos. 9-02-65 and 66, 2003-Ohio-2936 -- An "express dial tone" results when a call to 911 is made from a house with disconnected phone service. Since it is not possible to talk with the resident, calls are cleared by sending an officer to investigate. Exigent circumstances to enter the home existed where the officer got no response at the door, heard a television inside and learned young children lived there.

State v. Roe, 164 Ohio App. 3d 733, 2005-Ohio-6655 -- More than two hours after an adjoining trailer had burned, investigator forced entry to a trailer 50-75 feet away, claiming concern that a joint power supply might have somehow cause a fire. Before doing so he spotted grow lights and called the prosecutor. See dissent for why this was wrong.

Warden v. Hayden (1967), 387 U.S. 294 -- Exigent circumstances existed where police were informed armed robber had entered house only minutes before. (Appears to have been a consent search in any event, since defendant's wife agreed to search.) Compare Payton v. New York (1980), 445 U.S. 573 -- Routine felony arrest, even with a warrant, does not allow warrantless entry to a residence. Search warrant is required.

Steagald v. United States (1981), 451 U.S. 204 -- Police may not make a warrantless entry to the home of a third party to search for the person named in an arrest warrant. Having done so, evidence seized leading to charges against third party must be suppressed.

Welsh v. Wisconsin (1984), 466 U.S. 740 -- The government must demonstrate exigent circumstances in order to overcome the presumption of unreasonableness which attaches to all warrantless home entries. Warrantless home entry should rarely be sanctioned when there is only probable cause that a minor offense has been committed. Also see Middleburg Heights v. Theiss (1985), 28 Ohio App. 3d 1. But see Illinois v. McArthur  (2001), 121 S.Ct. 946 holding police could prevent resident from entering home unattended while warrant was being obtained.

United States v. Santana (1976), 427 U.S. 38 -- Police were about to make a legal warrantless arrest of a suspect who was in a public place, specifically the doorway to her house. She fled into the vestibule and the officers followed, completing the arrest. Warrantless entry to search for her person was justified as 'hot pursuit."

Vale v. Louisiana (1970), 399 U.S. 30, 34-35 -- An arrest which takes place on the street in itself does not create exigent circumstances lefting a search of a defendant's nearby house.

United States v. Jeffers (1951), 342 U.S. 48, 52 -- There was no justification for warrantless search of a hotel room where there was no question of violence, no movable vehicle was involved, there was no arrest, there was no risk of imminent destruction of property, or of its removal or concealment. Any such risk could have been prevented by merely guarding the door.

Mincey v. Arizona (1978), 437 U.S. 385, 392 -- "Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid...'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.'" But there is no "murder scene exception" to the warrants requirement. The seriousness of the crime by itself does not create exigent circumstances. There was a shootout during a drug raid at defendant's apartment. Numerous items were seized during a warrantless search extending over the following four days. Also see Flippo v. West Virginia (1999), 120 S.Ct. 7.

Thompson v. Louisiana (1985), 469 U.S. 17 -- There is no homicide scene exception to the warrants requirement. Evidently, defendant shot her husband, then took an overdose of sleeping pills. When she changed her mind about committing suicide she called her daughter who in turn called the police and admitted them to the house. Once the police check to see if there are other victims or anyone in need of aid, or to see if the killer is still present, further search for evidence relating to the crime requires either a warrant or consent. Also see McDonald v. United States (1948), 335 U.S. 451, 454-456.

Michigan v. Tyler (1978), 436 U.S. 499 -- A burning building creates exigent circumstance allowing firemen to enter to fight the fire. The cause of the fire may be investigated and evidence of arson in plain view may be seized, however further investigation requires a search warrant to reenter the premises. Also see Michigan v. Clifford (1983), 464 U.S. 287.

Arizona v. Hicks (1987), 480 U.S. 321 -- In an otherwise valid warrantless search based on exigent circumstances, it was permissible to copy down serial number of stereo equipment when it was in plain view, but not when equipment had to be moved to do so.

State v. Garcia (1986), 32 Ohio App. 3d 38 -- Odor of freshly burned marijuana in small restroom combined with furtive gesture of the defendant towards a jewelry box was sufficient to left warrantless search which turned up cocaine. Opinion illustrates danger of failing to properly articulate objections to search: though state should have had to prove exigent circumstances, this is never discussed. Instead the court talks about the "good faith suspicions of the law officer," confusing the issue. Compare Johnson v. United States (1947), 333 U.S. 10; State v. Sperry (74), 72 Ohio Ops. 2d 296; State v. Younts (1993), 92 Ohio App. 3d 708 -- No plain smell exception to warrants requirement. But see State v. Moore (2000), 90 Ohio St. 3d 47.

State v Russell (1998), 127 Ohio App. 3d 414 -- Couple failed to pick up their child leading to request police search their house to see if they were OK. Assessing the reasonableness of police conduct at each stage as their response progressed, court finds warrantless entry into home was justified by exigent circumstances.

State v. Sims (1998), 127 Ohio App. 3d 603, 610-612 -- The mere presence of a car suspected of being used in drug activity does not left warrantless entry of a nearby house. Nor are exigent circumstances created when the police announce their presence, then make a warrantless entry to prevent destruction of contraband.

State v. Jenkins (1995), 104 Ohio App. 3d 265 -- Detective went to apartment based on neighbor's tip suggesting drug activity. Defendant refused to admit detective, then ran away from door to flush marijuana down the toilet. Detective forced entry. Exigent circumstances created by the detective did not left warrantless entry.

United States v. Timberlake (C.A.D.C. 1990), 896 F.2d 592 -- Exigent circumstances did not left entry of apartment. Consent subsequently obtained from resident did not cure initial illegality. Compare State v. Sladek (1998), 132 Ohio App. 3d 86, but see dissent.

State v. Robinson (1995), 103 Ohio App. 3d 490, 496-497 -- The odor of burning marijuana escaping though an open apartment door provided probable cause only as to commission of a minor offense, and did not establish exigent circumstances premised on the immediate destruction of evidence, even though the person opening the door called out "get rid of the shit." Welsh v. Wisconsin (1984), 466 U.S. 740, 754, followed.

State v. Applegate (1994), 68 Ohio St. 3d 348 -- Syllabus: "Exigent circumstances left a warrantless entry into a residence by police when police are there pursuant to an emergency call reporting domestic violence and where the officers hear sounds coming from inside the residence which are indicative of violence."

State v. Vance (1994), 98 Ohio App. 3d 56 -- Exigent circumstances for search of trailer arose from drug vendor's agreement to lead officers to his supplier, who expected him to return promptly.

State v. Oliver (1993), 91 Ohio App. 3d 607 -- Exigent circumstances justified stop of auto and search for weapons after girlfriend reported defendant was distraught, drunk, possibly armed, and contemplating suicide.

State v. Mitchell (1993), 87 Ohio App. 3d 484 -- Car was stopped for speeding. Driver was pressed into telling trooper that cocaine was hidden under seat. Defendant was a passenger first seen with unlaced sneakers, but later with sneakers tightly laced while standing outside of car. Drugs were not found in car, but were found in sneaker. Held that the car could properly be searched without a warrant, but passenger could not, applying Ybarra v. Illinois (1979), 444 U.S. 85 and United States v. Di Re (1948), 332 U.S. 581.

State v. Cheers (1992), 79 Ohio App. 3d 322 -- Police, while following up on a disorderly conduct incident resulting in the arrest of another, followed the defendant into his house where it was reported a shotgun had been taken. The emergency exception to the warrants requirement was not satisfied.

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B. Investigative detention (503)

(1) Stop and frisk

(2) Luggage and packages

(3) Vehicles

 

Primarily U.S. Supreme cases. 

For additional cases see Investigative Detention as a separate topic

Also see Arrest.

(1) Stop and frisk

Terry v. Ohio (1968), 392 U.S. 1 -- (1) The Fourth Amendment right against unreasonable searches and seizures applies to people on the street and not just while they are in their homes. (2) When a police officer has stopped a person on the street and restrains his freedom to walk away, there has been a seizure for purposes of the Fourth Amendment. (3) A pat down of the external portion of that person's clothing is a search for purposes of the Fourth Amendment. (4) Where a reasonably prudent officer is justified, based on the surrounding circumstances, in believing that a pat down for weapons is justified for the safety of himself or others he may do so even in the absence of probable cause for the arrest of the individual who has been detained. At page 27: "(I)n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (5) The exclusionary rule is a remedy when the stop and frisk was not legally justified. Also see Sibron v. New York (1968), 392 U.S. 40.

Florida v. J.L. (2000), 120 S.Ct. 1375 -- There is no firearms exception to conventional Terry analysis. Anonymous tip uncorroborated by further observation or investigation did not left detention and frisk for weapons.

Michigan v. Summers (1981), 452 U.S. 692 -- Permissible for officers executing a search warrant to detain person descending front steps. For Fourth Amendment purposes, a warrant to search for contraband, founded on probable cause, implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The reasonableness of the temporary detention is determined by balancing the character of the official intrusion and its justification. Also see State v. Schultz (1985), 23 Ohio App. 3d 130 -- Occupant construed to include defendant who was at least an overnight guest.

Ybarra v. Illinois (1979), 444 U.S. 85 -- Warrant to search tavern and the person of the bartender did not automatically permit search or weapons frisk of patrons. Also see State v. Croft (April 1, 1982), Franklin Co. App. No. 81AP-803, unreported (1982 Opinions 886) -- Police were not authorized to conduct weapons frisk of all patrons of unlicensed bar during a raid.

Illinois v. Wardlow (2000), 528 U.S. 119, 120 S.Ct. 673 -- Flight at the approach of a police officer, in an area of known drug trafficking, justifies a Terry detention. Court adheres to its holding in Florida v. Royer (1983), 460 U.S. 491 that an individual approached by an officer without reasonable suspicion may ignore the police and go about his business.

Reid v. Georgia (1980), 448 U.S. 438 -- Precursor to drug courier profile cases. Actions at airport which were common among a large group of presumably innocent travellers did not left detention. Also see United States v. Berry (5th Cir. 1982), 670 F. 2d 583. Compare United States v. Bowles (5th Cir. 1980), 625 F. 2d 526: United States v. Mendenhall (1980), 446 U.S. 544; Florida v. Rodriguez (1984), 469 U.S. 1.

Minnesota v. Dickerson (1993), 508 U.S. 366 -- Court almost endorses the so called "plain touch" exception to the warrants requirement. If an object that is plainly contraband is detected during a properly limited Terry frisk, it may be seized. However, the officer may not manipulate the object to ascertain its identity. Also see State v. Lee (1998), 126 Ohio App. 3d 147.

Hayes v. Florida (1985), 470 U.S. 811 -- Absent probable cause for arrest, judicial authorization or consent, taking a suspect to the police station for purposes of fingerprinting is beyond the scope of a Terry stop and frisk, and the results are to be suppressed. Also see Davis v. Mississippi (1969), 394 U.S. 721.

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(2) Luggage and packages

State v. Smith, 124 Ohio St. 3d 163, 2009-Ohio-6426 – Syllabus: "The warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."

Bond v. United States (2000), 529 U.S. 334, 120 S.Ct. 1462 -- Border patrol agent squeezed defendant's suitcase, felt a brick-like object, and upon owner's consent to search found methamphetamines. Fourth Amendment violation found. By putting an object in an opaque bag and placing it in the rack above his seat defendant had a reasonable expectation of privacy.

United States v. Place (1983), 462 U.S. 696 -- Terry requirement of reasonable articulable suspicion, based on objective facts, applies to detention of luggage of arriving airline passenger. However, prolonged detention (90 minutes for drug dog to inspect suitcases) was "unreasonable" within the meaning of the Fourth Amendment.

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(3) Vehicles

Arizona v. Johnson (2009), 129 S.Ct. 781 – Car was lawfully stopped by officers assigned to the Tucson police department gang unit. Passenger was asked to step out so an officer could question him regarding gang activity out of the hearing of the driver. In the view of the Arizona Court of Appeal, this converted an investigative detention to a consensual encounter. Thus the officer was not permitted to conduct a weapons frisk absent reasonable suspicion the passenger was engaged in criminal activity. Reversed. Frisk was valid provided the detention was not measurably prolonged by questioning on matters not related to the initial stop. Opinion is a primer on what is permitted during vehicle stops.

State v. Hoppert, 181 Ohio App. 3d 787, 2009-Ohio-1785 – Officer patrolling a park observed two people in a parked pickup. Registered owner had a suspended license. Driver indicated there was a spoon with heroin residue in the cab. Dope dog was summoned and a second spoon was seized from the passenger‘s car, parked nearby. Majority finds no constitutional violation as the passenger had no expectation of privacy as her car was parked in a public place. Dissent notes that while the driver was under arrest, the passenger was merely detained. Unjustified continued detention while the dope dog was brought to the scene invalidated the search.

Illinois v. Caballes (2005), 125 S.Ct. 834 -- Dog sniff conducted while an officer competed issuance of a warning ticket for speeding did not violate the Fourth Amendment. Also see State v. Lopez, 166 Ohio App. 3d 337, 2006-Ohio-2091.

City of Indianapolis v. Edmond (2000), 121 S.Ct. 447 -- Indianapolis drug interdiction checkpoints found to violate the Fourth Amendment.

State v. Orr (2001), 91 Ohio St. 3d 389 -- Syllabus: "In determining the constitutionality of a driver's license checkpoint, a court must evaluate, on a case by case basis, the checkpoint's intrusion on privacy, the state's interest in maintaining the checkpoint, and the extent to which the checkpoint advances the state's interest." Factors cited in favor of Dayton checkpoints included advance warning to approaching drivers, display of authority, brevity of stops, even for violators, and the success rate in issuing citations.

United States v. Brignoni-Ponce (1975), 422 U.S. 873 -- Except at the border or its functional equivalent, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences drawn from those facts, that reasonably warrant suspicion that the vehicle contains illegal aliens. Also see United States v. Cortez (1981), 449 U.S. 411.

Michigan v. Long (1983), 463 U.S. 1032, 1049-1050 -- "...(T)he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect may gain immediate control of weapons."

Maryland v. Wilson (1997), 519 U.S. 408 -- A police officer may, as a matter of course, order passengers in a lawfully stopped car to step out of the vehicle. Court does not decide whether officer may further detain passenger, once out of vehicle.

United States v. Sharpe (1985), 470 U.S. 675 -- In determining whether the duration of an investigative detention is reasonable, it is appropriate to consider whether the police diligently and quickly pursued any follow up investigation. DEA agent following suspect vehicles had radioed for help. After first vehicle was stopped, there was a fifteen minute delay before he arrived at location where second vehicle stopped. Court found this delay acceptable.

Ohio v. Robinette (1996), 519 U.S. 33 -- The Fourth Amendment does not require that a lawfully seized defendant be advised that he is free to go before his consent to search will be recognized as voluntary. For the possible continued viability of the previous decision by the Ohio Supreme Court, see the concurring and dissenting opinions. As to the legality of prolonging the detention, the majority only states that the subjective intentions of the officer do not matter, so long as the detention was objectively warranted.

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(C) Search incident to an arrest (512)

(1) Arrestee's clothing and property in his immediate possession

(2) Search of the immediate vicinity

(a) Premises

(b) Vehicles

(3) Bodily intrusions

(a) Strip and body cavity searches

(b) Specimens and exemplars for forensic purposes

(1) Arrestee's clothing and property in his immediate possession

State v. Smith, 124 Ohio St. 3d 163, 2009-Ohio-6426 – Syllabus: "The warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."

State v. Griffin (1999), 133 Ohio App. 3d 490 -- "Police Oriented Problem Solving" (POPS) program exploited strict enforcement of a loitering ordinance in a "problem," or high crime area as the basis for the search incident to arrest of a person seen making brief contact with pedestrians and motorists. Finding passage of others was not legitimately impeded, there was no probable cause for the arrest and drugs seized should have been suppressed.

United States v. Robinson (1973), 414 U.S. 218 -- A search incident to a lawful custodial arrest is a exception to the warrant requirement of the Fourth Amendment. It is not limited to the scope of a Terry frisk for weapons, and does not require any additional reasons be advanced to left the search. Also see Gustafson v. Florida (1973), 414 U.S. 260; United States v. Rabinowitz (1950), 339 U.S. 56; State v. Ferman (1979), 58 Ohio St. 2d 216.

Sibron v. New York (1968), 392 U.S. 40, 62-67 -- For there to be a valid search incident to arrest, an arrest must have taken place. The fruits of an incident search prior to an arrest being made may not serve as part of the justification for the arrest. Also see Johnson v. United States (1947), 333 U.S. 10.

Illinois v. Lafayette (1983), 462 U.S. 640 -- Inventory search upon arrest may extend to personal effects in possession of the defendant at the time he is booked, in this instance a shoulder bag.

United States v. Edwards (1974), 415 U.S. 800 -- Delay in seizing clothing the defendant was wearing at the time of his arrest, due to unavailability of substitute clothing, was not unreasonable and did not require a warrant.

Michigan v. Summers (1981), 452 U.S. 692 -- Police legitimately detained defendant while search warrant was executed. Since this led to probable cause for his arrest, search incident to arrest was legitimate.

State v. Dempsey (1970), 22 Ohio St. 2d 219 -- Paragraph one of the syllabus: "A routine stationhouse search without a warrant of a person, who is being booked immediately prior to his entering a cell for the purpose of inventorying and safekeeping his personal effects, is not violative of the Ohio Constitution or the Fourth or Fourteenth Amendments to the United States Constitution."

State v. Satterwhite (1997), 123 Ohio App. 3d 322 -- Defendant was arrested for the citable minor misdemeanor of jaywalking, because he had no ID. Drugs in his possession and his subsequent statement were properly suppressed. Officer should have used the computer in her car to check name and SSN, as she did after the arrest. Officer could also have questioned defendant's companion about his identity.

State v. Matthews (1976), 46 Ohio St. 2d 72 -- Syllabus: "A custodial search of the handbag of one lawfully arrested for a misdemeanor committed in the presence of a police officer is a reasonable search under the Fourth Amendment to the United States Constitution, and evidence so obtained is properly admissible in a criminal action."

State v. Pender (1980), 66 Ohio Misc. 23 -- Search of defendant's handbag at the site of the arrest was illegal where it took place outside the normal booking process and after it had been removed from her possession.

State v. McAfee (1985), 26 Ohio App. 3d 99 -- Shoplifter was detained by merchant until police arrived. Since purse was searched only after defendant had expressly been placed under arrest, it was a proper search incident to arrest, since the arrest was supported by probable cause, saving search from being merely investigative.

State v. Myers (1997), 119 Ohio App. 3d 376 -- Woman was handcuffed and placed under arrest for disorderly conduct in the house where she rented a room. Although her identity had been established, officer said he went through her purse looking for photo ID. Applying State v. Brown (1992), 63 Ohio St. 3d 349, held not to be a valid search incident to arrest. Also see State v. Sarrocco (1997), 96 Ohio Misc. 2d 1 (briefcase of person arrested as a probation violator).

State v. Robinson (1998), 131 Ohio App. 3d 356 -- Officer investigating report woman was in possession of marijuana asked her to step outside club. She did so, leaving purse behind. Following arrest on an outstanding warrant, search of retrieved purse was not properly incident to arrest.

State v. Dean (September 21, 1978), Franklin App. No. 78AP-181, unreported (1978 Opinions 2617) -- Search of wallet was within the scope of the search incident to arrest. Also see United States v. Ziller (9th Cir. 1980), 623 F. 2d 562.

State v. Thompson (1995), 103 Ohio App. 3d 498, 503 -- Though defendant was in custody for Miranda purposes, he was not formally arrested at time of search of his person. Even though police may have had probable cause to make an arrest, and a search incident to an arrest may precede formal arrest, since no formal action was taken at the time, search of person cannot be justified as incident to arrest. Nor could the search be justified as a Terry frisk, as it went beyond the permissible scope of such searches.

State v. Robinson (1995), 104 Ohio App. 3d 182 -- Though the statute the defendant was arrested for violating was later held unconstitutional in another case, search incident to arrest remained valid if there was probable cause supporting the arrest.

State v. Jones (1996), 112 Ohio App. 3d 206, 215-218 -- Actual arrest need not precede the search, so long as there was probable cause for arrest and it is not based on the fruits of the search. Packages taped to ankles were properly within the scope of search incident to arrest, even though restraint of the defendant would have prevented him from destroying contents. Also see Rawlings v. Kentucky (1980), 448 U.S. 98.

State v. Johnson (1988), 48 Ohio App. 3d 256 -- The good faith exception is limited to search warrants and does not apply to searches incident to arrest. Suppression is required where search incident to arrest was the result of an arrest warrant found to have been issued on a bare bones affidavit, insufficient to establish probable cause.

State v. Gough (1986), 35 Ohio App. 3d 81 -- Evidence must be suppressed where seized in search incident to arrest which resulted from an erroneous computer report of outstanding warrant. Good faith exception does not apply.

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(2) Search of the immediate vicinity

(a) Premises

State v. Sharpe, 174 Ohio App. 3d 498, 2008-Ohio-267 – Defendant came out of his house and surrendered. Officers entered and conducted a protective sweep. Contraband in plain view provided the basis for a search warrant. (1) Officers did not have articulable facts from which they might reasonable suspect the premises harbored another person who might launch an attack. Therefore the search was unreasonable. Maryland v. Buie (1990), 494 U.S. 325, applied. No one had entered the house during the hours it was surrounded and there was no indication someone else might be inside. The fact the defendant may have had a gun did not justify the sweep. (2) Inevitable discovery does not apply as officers were not pursuing an alternative line of investigation at the time they entered. The fact officers might have had probable cause to obtain a warrant and were sincere in their concern over the gun save the search. Compare State v. Spradlin, 187 Ohio App. 3d 767, 2010-Ohio-2140 where the officers heard multiple voices inside the apartment. Suspect was arrested in the doorway. Protective sweep was justified.

Chimel v. California (1969), 395 U.S. 752 -- A search incident to arrest is limited to the arrestee's person and the immediate vicinity, meaning the area from within which he might gain possession of a weapon or destructible evidence. Any search beyond this range requires a warrant.

Vale v. Louisiana (1970), 399 U.S. 30 -- For the search of a house to be justified as incident to an arrest, the arrest must have taken place inside the house. Defendant was arrested on the front steps. Also see Shipley v. California (1969), 395 U.S. 818.

Maryland v. Buie (1990), 494 U.S. 325, 333 -- "We also hold that as an incident to the arrest (at a residence with a warrant), the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which...would warrant a reasonably prudent police officer in believing the area to be swept harbors an individual posing a danger to those on the arrest scene." Also see State v. Lyons (1992), 83 Ohio App. 3d 525, 532-534.

Centerville v. Smith (1973), 43 Ohio App. 2d 3 -- Search of entire house following the indoors arrest of defendant and others for possession of marijuana violated the Fourth and Fourteenth Amendments.

State v. Robinson (1995), 103 Ohio App. 3d 490 -- When apartment door was opened, police smelled burning marijuana. As they were forcing their way in, the defendant called for another occupant to "get rid of the shit." Court finds search of premises not justified as incident to arrest. (1) Burning marijuana gave probable cause only for issuance of citation for minor misdemeanor drug abuse. If there is no arrest, there may not be a search incident to arrest. (2) As to possible obstructing official business charge, unlawful entry meant officers were not acting "in the performance of their lawful duties."

State v. Koren (1995), 100 Ohio App. 3d 358 -- Weapon used as evidence in state court robbery trial should have been suppressed as it was illegally seized by FBI agents during the execution of an unrelated arrest warrant. Weapon was found in an adjacent room, beyond the control of the defendant and while he was under control by the agents. Public safety exception does not apply.

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(2)(b) Vehicles

Arizona v. Gant (2009), 129 S.Ct. 1710 – Search of the defendant‘s vehicle incident to an arrest is reasonable only if the arrestee might have access to the vehicle at the time of the search or if the search was necessary to preserve evidence related to the arrest. Defendant had been removed to a cruiser prior to search, thus the interior of his car was beyond his reach.

State v. VanNay, 188 Ohio App. 3d 89, 2010-Ohio-2845 – Tipped that the defendant would go to a drug house in Springfield an officer observed the visit, then followed a car in which the defendant was a passenger and stopped it. Sole rationale for the stop was to place the defendant under arrest for drug offenses committed several months earlier. Officer had not obtained a warrant. Drugs seized at the scene of the arrest were the basis for the only conviction resulting at trial. Motion to suppress should have been granted. The officer had ample time to obtain an arrest warrant. The exigent circumstances permitting warrantless arrests did not exist. Statements go out as well as fruits of the poisonous tree.

State v. Gilbert, 184 Ohio App. 3d 642, 2009-Ohio-5528 – Car was stopped. Driver and front seat passenger were arrested. Rear seat passengers were removed so dog could sniff inside car. He showed interest in the position where the defendant had been seated, so defendant was searched until he ran. Drugs were found in his shoe. Applying Arizona v. Grant, evidence should have been suppressed. Search of car was unwarranted after the arrestee no longer had access. This led to suspicion the defendant was holding drugs, and the search. Grant retroactively applied because it announced a new rule of law.

State v. Burke, 186 Ohio App. 3d 777, 2010-Ohio-3597 – Car was properly stopped and defendant moved to rear of cruiser. According to Arizona v. Gant, search of interior incident to arrest was improper. But odor of marijuana emanating from the car provided probable cause for warrantless search under the automobile exception.

State v. Huddleston, 173 Ohio App. 3d 17, 2007-Ohio-4455 – Defendant was arrested inside a store for shoplifting. Search incident to arrest turned up keys to a rental car legally parked on the store lot. Car was impounded and searched. Methamphetamine was found during inventory search. City ordinance and police directive cited by the state did not vindicate the search. Nor was an unwritten department policy to impound in such circumstances constitutionally reasonable. Court‘s prior decision involving a car that had been stopped by an officer in a legal parking space distinguished on the basis the operator was in the car at the time and the officer exerted control as to the movement of the vehicle.

Thornton v. United States (2004), 124 S.Ct. 2127 -- An auto may be searched incident to arrest even though the driver has already left the vehicle before being placed under arrest.

State v. Murrell, 94 Ohio St. 3d 489, 2002-Ohio-1483 -- Syllabus: "When a police officer has made a lawful custodial arrest of the occupant on an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. (New York v. Belton [1981], 453 U.S. 454, 460, 101 S.Ct. 2680, 2684, 69 L.Ed.2d 768, 775, followed; Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution, harmonized.)" Overrules State v. Brown (1992), 63 Ohio St. 3d 349. See dissents.

State v. Dubose, 164 Ohio App. 3d 698, 2005-Ohio-6602 -- Defendant handed a Scotchguard can to his girlfriend who he had asked to bring proof of insurance to where he had been stopped for having a cracked windshield. Officer took the can, unscrewed the base, and found an F-1 quantity of heroin. The minor misdemeanor unsafe vehicle charge would not have warranted an arrest, so the search cannot be validated as incident to arrest. Nor did the defendant abandon the property by handing it over.

New York v. Belton (1981), 453 U.S. 454 -- Defendant was one of four passengers in an auto arrested for possession of marijuana. Cocaine was found in the pocket of his jacket which had been left in the car. Held that jacket was within the scope of lawful search incident to arrest, which where arrest takes place in an auto reaches the passenger compartment and containers found therein. Also see State v. Reynolds (1972), 32 Ohio St. 2d 101.

Coolidge v. New Hampshire (1971), 403 U.S. 443, 455-457 -- Where the defendant was arrested inside his house, search incident to arrest could not reach car parked in driveway. (Facts were even worse - car was towed to police station and searched two days later.) Also see Chambers v. Maroney (1970), 399 U.S. 42, 46-47.

Knowles v. Iowa (1998), 525 U.S. 113 -- Motorist was cited for a traffic offense but not arrested. Iowa law permitting a full search of the vehicle in such circumstances was contrary to the Fourth Amendment. Searches incident to arrest are justified by considerations of officer safety and preservation of evidence, neither of which warrant allowing a comparable search when only a citation is issued.

State v. Brown (1992), 63 Ohio St. 3d 349 -- Syllabus: "A police officer may not open a small, closed container found inside an automobile's glove compartment solely as a search incident to the driver's arrest for a traffic violation, after the officer has the suspect - and sole occupant of the vehicle - under control in the police cruiser. (New York v. Belton [1981], 453 U.S. 454...distinguished; the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, applied.)" Also see State v. Davidson (1992), 82 Ohio App. 3d 282; State v. Swilley (May 19, 1994), Franklin Co. App. No. 93APA11-1551, unreported (1994 Opinions 2217); State v. Brown (1995), 74 Ohio Misc. 2d 98.

State v. Baker (1997), 118 Ohio App. 3d 654 -- Defendant got out of car, was confronted by officer, then arrested for OMVI. A gun was found during the search incident to arrest. Officer then checked car for passengers and saw the butt of second gun in plain view. Seizure was proper.

State v. Ratcliff (1994), 95 Ohio App. 3d 199, 205-206 -- Search of motor home after occupants had been removed was properly based on probable cause where drug and alcohol use had been admitted by driver and was indicated by his appearance.

State v. Rodriguez (1992), 83 Ohio App. 3d 829 -- Search of car towed to sally port at Sheriff's headquarters involving use of dope dog and removal of interior panel behind which cocaine was found could not be justified as a search incident to arrest.

State v. Hines (1993), 92 Ohio App. 3d 163 -- Once defendant had been removed to a paddy wagon, further search of vehicle was not permitted.

State v. Peay (1991), 62 Ohio Misc. 2d 92 -- Though deputy had information that the defendant sold drugs and owned a gun, the reason for stopping his truck was two minor misdemeanor citations. Since the defendant had a right not to be arrested, the search of his vehicle was illegal. Also see State v. Slatter (1981), 66 Ohio St. 2d 452; R.C. 2935.26 -- Issuance of citation for minor misdemeanor.

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(3) Bodily intrusions

(a) Strip and body cavity searches

R.C. 2933.32 -- Body cavity and strip searches; conducting unauthorized search; failure to prepare proper

report. R.C. 2933.32(B)(4) generally requires a search warrant for a body cavity search of an arrestee

Safford United School District No. 1 v. Redding (2009), 129 S.Ct. 2633 – School police barred students bringing over the counter pain killers to school without advance permission. Plaintiff in a 1983 suit and another girl were suspected of having pain pills. Search of plaintiff‘s backpack and outer clothing was permissible. For a school search, reasonable suspicion short of probable cause is all that is required. But further having the student pull her underwear out from her body amounted to a strip search, requiring further justification, weighing into account the objectives of the search and whether the search is excessively intrusive given the age and sex of the student. Search violated the Fourth Amendment.

State v. Porter, 178 Ohio App. 3d 304, 2008-Ohio-4627 – Jail inmate was suspected of concealing drugs on her person. Pat down revealed a foreign object in the area of her crotch, but she would not cooperate in removal leading to completion of paperwork for a strip search, then the search. Still no evidence was recovered. A detective told the defendant he was going to obtain a warrant for a body cavity search and that unless she cooperated she would be charged to the full extent of the law. Again she refused. While waiting for the warrant to issue the defendant contacted the detective and agreed to hand over drugs. She was not Mirandized until questioned again the following day. (1) For the interrogation of an inmate held on another offense to be custodial there must be a change in the surroundings of the prisoner that result in an added imposition on freedom of movement. That existed here. Statements made before eventual Miranda warnings must be suppressed. Also see Cervantes v. Walker (9th Cir. 1978), 589 F.2d 412; United States v. Cooper (4th Cir. 1986), 800 F.2d 412; State v. Bradley (Sept. 22, 1987), Scioto App. No. 1583; State v. Swinney (July 15, 1989), Pickaway App. No. 87CA41. (2) Prior statements do not taint later statements because they were not the product of what was in effect a continuous interrogation process and the fruit of the poisonous tree doctrine does not apply. (3) Because the initial yielding up of the drugs was the product of a coerced confession, the drugs must be suppressed. Plain error found. (4) Inevitable discovery does not apply because the effort to obtain a warrant for a body cavity search was tainted by the illegality of the coercion.

State v. Jones, 154 Ohio App. 3d 231, 2003-Ohio-4669 -- Against a disputed factual background and an uncertain basis for the trial court's ruling, even if there was a strip search it was necessary to prevent the destruction of evidence, and was not in violation of the Fourth Amendment.

Bell v. Wolfish (1979), 441 U.S. 520, 558-561 -- Balancing the need for the search against the invasion of personal rights involved, strip searches of pretrial detainees returning from contact visits, on less than probable cause, found not to violate the Fourth Amendment.

Wise v. Department of Rehabilitation and Correction (1994), 97 Ohio 741 -- Based only on an anonymous letter to the warden claiming to describe how she smuggled drugs to her husband in prison, plaintiff submitted to a strip search at the time of her next visit, facing loss of visiting privileges if she refused. (1) Though detailed, the letter was not corroborated either internally or by other circumstances and did not give rise to the reasonable suspicion required for a strip search to be conducted. (2) A strip search is an invasion of privacy which would be objectionable to a reasonable visitor to a penal institution. (3) Visual inspection of the entrances to the anal and vaginal cavities held to be a strip search and not a body cavity search, which must be conducted by medical personnel.

Fricker v. Stokes (1986), 22 Ohio St. 3d 202 -- Syllabus: "Where the plaintiff's evidence shows that a strip search was conducted without any apparent legitimate and substantial institutional justification, the trial court errs by directing a verdict in favor of the defendant as to the constitutionality of that strip search."

State v. Bush (1989), 65 Ohio App. 3d 560 -- Suppression not required where defendant was patted down before being placed in a holding cell while bond was being processed and officer detected soft objects, including packets of cocaine, in groin area which had not been turned over with other property. Probable cause existed for strip search, in accordance with R.C. 2933.32(B)(2).

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(3)(b) Specimens and exemplars for forensic purposes

Schmerber v. California (1966), 384 U.S. 757, 766-772 -- A search incident to an arrest may not reach into the body. However, the drawing of a blood specimen may be justified by exigent circumstances such as the destruction of evidence, here the metabolization of blood over time, permitting a warrantless withdrawal, provided it is done in a reasonable manner, by medical personnel. Also see Winston v. Lee (1985), 470 U.S. 753.

Taylor v. Alabama (1982), 457 U.S. 687, 692-693 -- Fingerprints taken incident to an unlawful arrest were themselves the fruit of that arrest and could not be used to vindicate subsequent warrant issued and in turn remove taint from confession obtained. Also see Davis v. Mississippi (1969), 394 U.S. 721.

Rochin v. California (1952), 342 U.S. 156 -- Due process denied where defendant swallowed morphine capsules during drug raid and police took him to a hospital and had his stomach pumped. At p. 172: "The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case 'due process of law' requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims....on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society."

Cupp v. Murphy (1973), 412 U.S. 291 -- Subject was under detention at the police station, but not under arrest, though probable cause existed. Exigent circumstances justified taking of fingernail scrapings.

Winston v. Lee (1985), 470 U.S. 753 -- Surgical removal of a bullet from a defendant's body, pursuant to a warrant, may be unreasonable under the Fourteenth Amendment even though the bullet might be evidence of a crime. Where the risk to the defendant's safety posed by the surgery and the scope of the operation were sharply disputed and a general anesthetic would probably have been necessary and where there is other evidence of the crime charged, such surgery should not be ordered. Also see Adams v. Indiana (1973), 299 N.E. 2d 834.

State v. Kutz (1993), 87 Ohio App. 3d 329 -- Driver charged with aggravated vehicular homicide was taken to a hospital where he refused to furnish a blood specimen, though a specimen was later obtained through the use of a search warrant. (1) Court holds that under the implied consent law, the test results could not be used in an OMVI prosecution, however, since the ban on use following refusal does not mention vehicular homicide, results may be used in such a prosecution. (2) Schmerber said to have involved a warrantless search incident to arrest, thus making custody an issue. Where a search warrant has been obtained to draw a blood sample, whether or not a suspect is under arrest is of no consequence.

State v. Pearson (1996), 114 Ohio App. 3d 153 -- (1) Blood specimen acquired by court order issued in response to a bare bones motion by the prosecutor was unlawfully obtained. A validly issued search warrant was required. (2) Second specimen obtained through a properly issued search warrant was admissible. (3) Neither inevitable discovery nor good faith rendered the first specimen and related test results admissible. See related case of State v. Pearson (1996), 114 Ohio App. 3d 168 -- Even though results of first and second tests were admitted at trial of companion charges, error was not harmless. Compare State v. Pearson (1997), 119 Ohio App. 3d 745 which involves the use of the first specimen results in a second county which otherwise would have obtained a valid warrant to draw a specimen. Also see State v. Pearson (1998), 130 Ohio App. 3d 577.

State v. Biddings (1988), 49 Ohio App. 3d 83 -- An order refusing to quash a search warrant for a blood sample to be used for DNA analysis is a final appealable order.

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D. Abandonment (513)

State v. Jones, Montgomery App. No. 22558, 2009-Ohio-61 – Officers followed a car that turned without signaling into a motel The defendant came out of a room carrying a shopping bag, but as events unfolded, he went back into the room and returned without the bag. In a supposed effort to locate satisfactory ID an officer entered the room, looked into the bag, and found contraband. The defendant’s told officers it was not his room. This may have amounted to a disclaimer of any privacy interest he had in the room, but did not extend to the bag. The room, which he could expect to reenter, was not a public place, thus he cannot be deemed to have abandoned the bag in a public place. Further appeal dismissed as improvidently granted: State v. Jones, 124 Ohio St. 3d 1203, 2009-Ohio-6188, three justices dissenting.

State v. Cosby, 177 Ohio App. 3d 670, 2008-Ohio-3862 - - Activating cruiser beacon and aiming spotlight at the defendant amounted to a seizure, not a consensual encounter. Further ordering the defendant to stop as he approached the cruiser further supports this conclusion. Simply being in a high crime area at 4:00 a.m. and waiting through two walk/don‘t walk cycles doe not provided reasonable suspicion warranting investigative detention. After the defendant was in the spotlight he dropped a bag of crack and stood on it. This did not constitute abandonment since it was precipitated by police action.

State v. Dubose, 164 Ohio App. 3d 698, 2005-Ohio-6602 -- Defendant handed a Scotchguard can to his girlfriend whom he had asked to bring proof of insurance to the location where he had been stopped for having a cracked windshield. Officer took the can, unscrewed the base, and found an F-1 quantity of heroin. The minor misdemeanor unsafe vehicle charge would not have warranted an arrest, so the search cannot be validated as incident to arrest. Nor did the defendant abandon the property by handing it over.

Abel v. United States (1960), 362 U.S. 217, 240-241 -- Search of hotel room after defendant (thought to be a Russian spy) had checked out and with consent of the hotel management did not require a warrant. Also see Parman v. United States (C.A.D.C. 1968), 399 F. 2d 559 (apartment); United States v. Moore (C.A.D.C 1972), 459 F. 2d 1360 and United States v. Edwards (5th Cir. 1971), 441 F. 2d 749 (autos abandoned after pursuit, then flight on foot).

California v. Greenwood (1988), 486 U.S. 35 -- There is no reasonable expectation of privacy in garbage left for public collection. No Fourth Amendment violation in police collecting garbage which contained items indicative of drug law violations, leading to issuance of search warrant.

State v. Payne (1995), 104 Ohio App. 3d 364 -- There is no reasonable expectation of privacy in garbage voluntarily left at the end of a driveway for pick up by a collection service. Placement near the end of the driveway for collection put the trash beyond the curtilage of the house. Also see State v. Feliciano (1996), 115 Ohio App. 3d 646, 661.

State v. Brown (1984), 20 Ohio App. 3d 36 -- Marijuana residue and mail bearing the defendant's name found in bags of trash left in front of a building for collection had been abandoned, and were properly used to establish probable cause for subsequent search warrant for defendant's apartment. Also see United States v. Biondich (8th Cir. 1981), 652 F. 2d 743.

State v. Miller (1991), 77 Ohio App. 3d 305 -- Hotel room was searched without a warrant after the police were contacted by hotel employees and advised of suspected drugs found in the room. Warrant was required. Hotel could not consent to search and police were obliged to inquire as to occupancy status before relying on representation room had been abandoned.

State v. Freeman (1980), 64 Ohio St. 2d 291, 296-298 -- Upon being approached at a bus station, defendant dropped the suitcases he was carrying and fled on foot. Paragraph two of the syllabus: "A defendant has no standing under the Fourth Amendment to the United States Constitution to object to a search and seizure of property that he has voluntarily abandoned."

State v. Bailey (1991), 77 Ohio App. 3d 742 -- Change purse dropped by patron when police entered a bar to conduct a liquor permit inspection was not abandoned. Seizure violated the Fourth Amendment.

State v. Barnwell (1993), 87 Ohio App. 3d 637 -- No illegal search and seizure where defendant dropped package of cocaine as officers approached the car he was leaning into. "A voluntary abandonment of property deprives a defendant of standing to challenge a subsequent seizure of such property."

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E. Consent searches (507)

(1) Authority to give consent

(2) Voluntariness of consent

(3) Scope of Consent

(1) Authority to give consent

Georgia v. Randolph (2006), 126 S.Ct. 1515 -- Responding to a domestic squabble, wife accused husband of drug use and gave consent to search the house. Husband was present and objected. Warrantless search was unreasonable. In assessing reasonableness courts look to widely shared social expectations influenced, but not controlled by, property law. No sensible person would enter shared premises based on one occupant's invitation when a fellow tenant said to stay out. Wife had the option of providing information to the police so a warrant could be obtained. Decision has no bearing on entry to protect against domestic violence. Suggested that the police may not manipulate the situation so as to forestall objection by one tenant.

State v. Hatcher, Ashtabula App. No. 2002-CA-0100, 2004-Ohio-2451 -- Trial court properly found lack of authority to consent to search of husband's safe. Wife did not have permission to access the safe, had never had access and did not know where the keys were.  While a spouse is presumed to have authority to consent to a search of all areas of the residence, this is limited to areas under common control, and does not reach personal effects of the absent spouse.  Because wife referred to the safe as her husband's, the officers could not reasonably believe that she had authority to consent.  The inevitable discovery exception does not apply where the claim is merely that the state had probable cause and could have obtained a search warrant.

State v. Hawkins, Greene App. No. 2002 CA 85, 2003-Ohio-1851 -- Feeble attempt to ascertain whether the person at the door possessed authority to consent to entrance to premises, coupled with knowledge he was not the tenant, meant there was no valid consent. Because it was not unreasonable to be soundly asleep at 9:30 p.m., there was no urgent need to enter apartment to check on defendant's condition. Absent lawful entry, plain view doesn't save the situation.

Zap v. United States (1946), 328 U.S. 624 -- Incriminating check was properly seized as the result of consent for government to audit books and records included as a condition of a government contract to do experimental work for the Navy during WWII.

State v. McCarthy (1971), 26 Ohio St. 2d 87 -- Syllabus: "The Fourth Amendment to the Constitution of the United States interdicts only those searches and seizures which are unreasonable, and a wife's voluntary consent to a search of her and her husband's mutual residence is sufficient to constitutionally permit an otherwise reasonable search of the common areas thereof." Also see United States v. Harrison (C.A.D.C. 1982), 679 F. 2d 942.

United States v. Matlock (1974), 415 U.S. 164 -- Woman who shared a bedroom with the defendant could consent to search. Also see State v. Sneed (1992), 63 Ohio St. 3d 3, 6-7; State v. Greer (1988), 39 Ohio St. 3d 236.

State v. Carder (1966), 9 Ohio St. 2d 1, 10 -- "The general rule is that a parent who owns or controls the premises in which a child resides has the right to consent to a search thereof even though such search may produce incriminating evidence against the child."

State v. Reynolds (1998). 80 Ohio St. 3d 670, 674-675 -- Father validly consented to search of son's room where he was the owner of the house, there was no agreement between them as to privacy of son's bedroom, and no rent was paid. Also see State v. Boyd (1998), 90 Ohio Misc. 2d 20 - Consent by adult babysitter.

State v. Williams (1995), 101 Ohio App. 3d 340 -- Aunt consented to officer searching room in her basement shared by her adult nephews after nephews had expressly objected to search without a warrant. (1) Consent by a third party is valid only if the person with whom authority to consent is shared is absent, rather than present and objecting. (2) Good faith does not save the search as the officer acted under a misapprehension of the law rather than upon factually erroneous information presented to him.

Akron v. Harris (1994), 93 Ohio App. 3d 378 -- Consent to enter premises may be a separate issue from consent to search. Visitor gave permission to officers to enter. Though he could not validly consent to a search, such consent admittedly came from one of the occupants. Remanded for trial court to further address the claim that consent was coerced. Also see State v. Chapman (1994), 97 Ohio App. 3d 687, where permission to enter and permission to search were given by different people, and immediate movement by officers to a rear portion of the apartment was held to be improper, but not the basis for suppression as the search did not commence until after consent was obtained.

Columbus v. I.O.R.M., Sioux Tribe-Redman Club (1993), 88 Ohio App. 3d 215 -- Private club sold keys to members which unlocked the only door to the premises, which was not attended. A member who was unhappy with gambling on the premises contacted the police and allowed an officer to use her key to get inside and gather information which led to issuance of search warrant and a gambling prosecution. Consent found valid. There was no requirement that the informant accompany the officer to the premises.

Ohio Department of Liquor Control v. Fraternal Order of Eagles Aerie 2293 (1996), 112 Ohio App. 3d 94 -- Liquor agent obtained name of owner of car in lot, then told doorman he was looking for that person. Misrepresentation meant admission was not by consent. Seized property was thus not in plain sight.

State v. Scott (1980), 61 Ohio St. 2d 155, 162 -- Wife may give consent to search of vehicle registered to husband, where she had the right to use and control the vehicle.

State v. Paul (1993), 87 Ohio App. 3d 309 -- Though someone else turned out to be the actual owner of the car, deputy had a reasonable belief person giving consent to search had authority to do so where that person said he was the owner, had the keys in his possession, and none of the other people present said otherwise or objected to the search. Also see Illinois v. Rodriquez (1990), 497 U.S. 177. Compare State v. Bernius (1964), 177 Ohio St. 155 -- Paragraph four of the syllabus

State v. Miller (1997), 117 Ohio App. 3d 750 -- Driver's consent to general search of his vehicle did not permit search of pop can observed to be solely in the possession of a passenger. But the passenger's furtive handling of the can independently established probable cause for it being searched.

State v. Denune (1992), 82 Ohio App. 3d 497, 509-510 -- Employee of salvage yard where locked trailer had been moved did not have authority to consent to search but told investigators he did not object after contacting his supervisor. OEPA agents could not reasonably rely on this as consent, particularly since no one at the yard had a key to the trailer.

Stoner v. California (1964), 376 U.S. 483 -- Hotel clerk did not have authority to consent to search of guest's room.

State v. Miller (1991), 77 Ohio App. 3d 305 -- Hotel room was searched without a warrant after the police were contacted by hotel employees and advised of suspected drugs found in the room. Warrant was required. Hotel could not consent to search and police were obliged to inquire as to occupancy status before relying on representation room had been abandoned. Also see State v. Hall (1994), 66 Ohio Misc. 2d 80.

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(2) Voluntariness of consent

State v. Wildman, 185 Ohio App. 3d 346, 2009-Ohio-6986 – Natural resources officers obtained a warrant to search the defendant’s home for evidence of violation of fishing laws. While executing the warrant they noticed marijuana plants, and contacted the sheriff. Deputies arrived and obtained consent to search. Defendant attacked the sufficiency of the information in the warrant obtained by the natural resources officers on the basis that it did not set forth how the defendant was linked to the premises to be searched. Doesn’t matter that there was testimony at the suppression hearing in this regard. Good faith does not save the search. Consent to search obtained immediately following such illegality was invalid.

State v. Wilburn, 188 Ohio App. 3d 384, 2010-Ohio-3536 – Pickup was stopped for speeding. Officer said he was only going to issue a warning, then asked for permission to search. Cocaine was found. Applying Robinette and Retherford the trial court properly suppressed evidence.

State v. Robinson, 155 Ohio Misc. 2d 39, 2009-Ohio-7087 – Officer looking into a reported meth lab offered to help the locked out occupant back in if he would be allowed to look around. Defendant didn’t object as the officer searched the trailer. On cross the officer detailed deception used to gain consent. State failed to meet its burden of proving voluntary consent by “clear and positive proof” that it was not contaminated by duress, coercion, or trickery.

State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, ¶ 69 -- Low intelligence is a factor to be weighed in determining the voluntariness of consent to a search, but is not the determining factor. Also see United States v. Mendenhall (1980), 446 U.S. 544, 558.

State v. Miller, 148 Ohio App. 3d 103, 2002-Ohio-2389 -- DEA agent who confronted drug courier at the airport was not required to have a written consent to search form in order for the state to meet its burden of showing by a preponderance of the evidence that a luggage search was consensual.

State v. Washington (2001), 144 Ohio App. 3d 482, 490 -- Actions of the DEA agent who stopped defendant at an Amtrack station as a suspected drug courier contributed to reasonable belief he was not free to go. Thus there was a seizure. Nervousness was only slightly probative of wrongdoing. Travelling under an assumed name raised only a generalized suspicion, and might have been indicative of other behavior, such as marital infidelity. Thus investigative detention was unjustified, and consent to search luggage was not voluntary. Compare State v. Alexander, 151 Ohio App. 3d 590, 2003-Ohio-760.

State v. Pies (2000), 140 Ohio App. 3d 535 -- While the initial detention of a suspect in the back of cruiser while running a license check was OK, continued detention, and a demand to know what he had been doing, became custodial interrogation. License and pat down had already turned up nothing to left continued detention. Subsequent consent search of car not found to be an independent act of free will.

State v. DeCaminada, 148 Ohio App. 3d 213, 2002-Ohio-2917 -- Officer's initial approach and questions directed to a woman sitting in a car parked at an apartment complex may not have amounted to detention, but subsequent requests for identification and a pill bottle he observed, coupled with the late hour and the ten to fifteen minutes that passed, amounted to detention. Circumstances coupled with repeated requests for the pill bottle meant the seizure was not consensual. Also see In re Parks, Franklin App. No. 04AP-355, 2004-Ohio-6449.

Bumper v. North Carolina (1968), 391 U.S. 543, 546-550 -- A search cannot be justified on the basis of consent where the authorities falsely claim to have a warrant and are allowed to enter the premises. "When a prosecutor seeks to rely upon consent to left the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given."

Schneckloth v. Bustamonte (1973), 412 U.S. 218 -- Whether consent to a search is voluntary depends on the totality of the circumstances. Consent may not be coerced by explicit or implicit means or by implied or covert force. The mental state of the person asked to give consent may be considered. Though it is not necessary to affirmatively prove that the person was aware he had a right to refuse, the subject's knowledge of his right to refuse is a factor which may be taken into account.

United States v. Watson (1976), 423 U.S. 411, 424-425 -- Mere fact that defendant had been placed in custody did not prevent consent from being voluntary.

Ohio v. Robinette (1996), 519 U.S. 33 -- The Fourth Amendment does not require that a lawfully seized defendant be advised that he is free to go before his consent to search will be recognized as voluntary. For the possible continued viability of the previous decision by the Ohio Supreme Court, see the concurring and dissenting opinions. As to the legality of prolonging the detention, the majority only states that the subjective intentions of the officer do not matter, so long as the detention was objectively warranted.

State v. Robinette (1997), 80 Ohio St. 3d 234 -- Syllabus: "When a police officer's objective justification to continue detention of a person stopped for a traffic violation for the purpose of searching the person's vehicle is not related to the purpose of the original stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some illegal activity lefting an extension of the detention, the continued detention to conduct a search constitutes an illegal seizure. (State v. Robinette [1995], 73 Ohio St. 3d 650, 635 N.E. 2d 695, paragraph one of the syllabus, modified.) (2) Under Section 14, Article I of the Ohio Constitution, the totality-of-the-circumstances test is controlling in an unlawful detention to determine whether permission to search a vehicle is voluntary. (State v. Robinette [1995], 73 Ohio St. 3d 650, 635 N.E. 2d 695, paragraph two of the syllabus, vacated.) Footnote 6 suggests that the "you are free to go" advice called for in Robinette I would still be sound police practice. Also see State v. Eastham (December 19, 1995), Franklin Co. App. No. 95APA05-566, unreported (1995 Opinions 5452); Akron v. Volfre (1995), 75 Ohio Misc. 2d 55.

State v. Retherford (1994), 93 Ohio App. 3d 586 -- Deputies made a routine practice of asking motorists stopped for traffic offenses for consent to search their vehicles after tickets were issued. Evidence seized under these circumstances should have been suppressed. At p. 599: The mere fact the defendant had been told she was free to go, before consent was sought: "did not suddenly transform what was a non-consensual encounter which must be based at least upon reasonable suspicion into a 'consensual' encounter in which an officer may 'ask' a citizen without the slightest articulable suspicion, to relinquish her individual liberties to permit a search of her car or luggage." At p. 602: "When consent is obtained after illegal police activity...the unlawful police action presumptively taints and renders involuntary any consent to search." Also see State v. Anderson (1995), 100 Ohio App. 3d 688. Compare State v. Carlson (1995), 102 Ohio App. 3d 585 [impliedly overruled by State v. Robinette (1995), 73 Ohio St. 3d 650].

State v. Pierce (1998), 125 Ohio App. 3d 592, 599-600 -- "Once the police officer indicated that an arrest warrant possibly existed and he suspected drug activity, appellant did not voluntarily consent to the search."

State v. Austin (1976), 52 Ohio App. 2d 59, 63-64 -- Although the defendant was constructively in custody at the time consent was sought, failure to give Miranda warnings did not render consent involuntary. Also see United States v. Garcia (5th Cir. 1974), 496 F. 2d 670, 673.

State v. Childress (1983), 4 Ohio St. 3d 217 -- Police may seek consent to search even though upon being advised of his rights he has expressed his desire not to answer question without counsel being present.

State v. Glover (1978), 60 Ohio App. 2d 283 -- Where defendant consented to search for a green suede coat, which the police found, consent did not extend to continued search which resulted in the discovery of heroin in the pocket of another coat. Police also wrote down serial number of a camera which was later seized pursuant to a warrant. Suppression not required.

State v. Hassey (1983), 9 Ohio App. 3d 231 -- The fact a person was initially approached because he matched a drug courier profile did not render consent involuntary, upon consideration of the surrounding circumstances.

State v. Danby (1983), 11 Ohio App. 3d 38 -- State said to have the burden of proving consent was given voluntarily by "clear and positive evidence."

State v. Vanderhoff (1995), 106 Ohio App. 3d 21 -- Police investigated suspicious parked car, arrested one occupant on outstanding warrants and ascertained that there were no warrants for the defendant. Since there was no basis for continued detention, results of alleged consent search should have been suppressed.

State v. Dettling (1998), 130 Ohio App. 3d 812 -- Consent was valid: Continued detention to perform field sobriety tests was warranted. "Therefore, Dettling was never free to go and Robinette II does not apply."

State v. Jackson (1996), 110 Ohio App. 3d 137 -- Officer pursued consent to search after resolving basis for initial stop of vehicle. At p. 143: "While the officer's first request for such a search might be considered ordinary police work, once such a request is clearly and definitively denied, the encounter begins to take on a coercive tone...It was not until the specter of a search warrant was raised that appellant acquiesced in the search."

State v. Taylor (1995), 106 Ohio App. 3d 741 -- Discreet approach to deplaning passenger matching drug courier profile did not exceed bounds of a consensual encounter. Eventual consent to search luggage was voluntary. Also see State v. Jones (1996), 112 Ohio App. 3d 206. (Movement not blocked. Ticket returned before request made to search carry-on bag.)

State v. McMillan (1993), 91 Ohio App. 3d 1 -- Defendant was stopped while driving. Girlfriend was summoned to the scene, then detained in a jail cell with the couple's baby for several hours until she finally consented to a search of their apartment, which yielded cash and $1-5,000,000 in cocaine. (1) Indicated that consent was not voluntary. (2) Since her detention was illegal, the consent was in any event invalid as the fruit of the poisonous tree. (3) Defendant had standing to raise illegality of her arrest in challenging the search of the shared residence.

State v. Foster (1993), 87 Ohio App. 3d 32 -- Consent was not voluntary where the defendant understood his choices to be either signing consent form, or being detained for two hours while dogs were brought to the scene or until the car was towed in.

State v. Baker (1993), 87 Ohio App. 3d 186 -- The testimony of a single officer may establish consent, unless discounted as unbelievable by the court. Case remanded for a hearing on whether state should disclose identity of the VFW member who admitted an officer to the premises where gambling was taking place.

State v. Cheers (1992), 79 Ohio App. 3d 322 -- Police, while following up on a disorderly conduct incident resulting in the arrest of another, followed the defendant into his house where it was reported a shotgun had been taken. Consent not established where defendant's only response to request for consent was incoherent.

State v. Tinch (1992), 84 Ohio App. 3d 111, 121 -- Consent was properly obtained, even though defendant had previously invoked Fifth Amendment right to counsel, ending interrogation.

State v. Clelland (1992), 83 Ohio App. 3d 474, 481 -- "...(T)he mere absence of Miranda warnings after the arrest and prior to the search did not invalidate the consent search."

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(3) Scope of Consent

State v. Huntington, 190 Ohio App. 3d 711, 2010-Ohio-3922 – Cat sitter spotted a bag of steroids, contacted police, and let them into the house. Warrant was subsequently obtained. Trial court erroneously found this to be a consent search. Consent was limited to entering the kitchen on three occasions to feed the cats on three different days. He did not have broader authority over the premises such as joint access or being a co-tenant.

State v. Eastman, 164 Ohio App. 3d 585, 2005-Ohio-6624 -- Officers responding to a report that crack was being smoked at an apartment, asked to be admitted so they could get out of the rain.  The defendant allowed them to do so, though he could have refused, but this did not amount to consent to search the apartment.  Bag with drug residue was in plain view on a table and was properly seized.

State v. Thompson (1999), 134 Ohio App. 3d 1 -- Officer obtained consent to search car for weapons. Contact lens case in dashboard vent proved to contain crack. Though the case may have been in plain view, and the officer might have been suspicious as to its contents, he did not have probable cause to believe it contained contraband. Evidence was properly suppressed. Also see State v. Howard, Montgomery App. No. 20321, 2004-Ohio-5287.

United States v. Knights (2001), 122 S.Ct. 587 -- The Fourth Amendment does not limit searches pursuant to a condition of probation to those undertaken with a probationary purpose. Deputy who was aware of the condition conducted a warrantless search of the apartment of a person believed linked to acts of vandalism at utility company facilities. The search was supported by reasonable suspicion, which is sufficient for Fourth Amendment purposes. Court dos not decide whether consent to the condition by itself would validate such searches.

Samson v. California (2006), 126 S.Ct. 2193 -- The Fourth Amendment does not bar searches of parolees not based on individualized suspicion, conducted pursuant to the parolee's agreement to be subject to search at any time.

State v. Crawford, Montgomery App. No. 19316, 2003-Ohio-902 -- Defendant consented to frisk for weapons. Scope of consent was exceeded when officer unwrapped folded-up paper package removed from T-shirt pocket.

State v. Riggins, Hamilton App. No. C-030626, 2004-Ohio-4247 -- While being detained during the issuance of a summons, defendant consented to being searched. Though he asked why he had to remove his shoes, this was not an unequivocal withdrawal of consent.  At ¶22: "It is ironic that, under Robinette, a person free to leave a police encounter has certain safeguards against suspicionless consent searches, but that for a person unable to leave, police officers need not ensure that the suspect has 'the freedom to refuse to answer further questions.'"

State v. Brown, 158 Ohio App. 3d 21, 2004-Ohio-3364 -- Consent to search is not consent to seize. Defendant consented to officers entering his house and viewing his computers, but he did not consent to their seizure and protested their removal. Motion to suppress properly granted. Incriminating character was not immediately apparent, so plain view doesn't apply.  Suspicion that the computers might contain child pornography did not rise to probable cause. Nor was there an objectively reasonable basis for concluding evidence would be destroyed if the officers left to get a warrant. leaving the premises secured.

State v. Myers (1997), 119 Ohio App. 3d 376, 381-382 -- Consent may not be based on a written waiver executed after the search.

United States v. Timberlake (C.A.D.C. 1990), 896 F.2d 592 -- Exigent circumstances did not left entry of apartment. Consent subsequently obtained from resident did not cure initial illegality. Also see State v. Heaven (1990), 65 Ohio App. 3d 832.

State v. Arrington (1994), 96 Ohio App. 3d 375 -- Highway Patrol officer's seizure of drugs in a cigarette case during claimed consent search of an auto and the defendant's purse for weapons was beyond the scope of consent. Officer's claim of "plain view" rebutted by affidavit he prepared on the day of the search."

Florida v. Jimeno (1991), 500 U.S. 248 -- Search of a closed container during consent search of a vehicle is proper when it is objectively reasonable for the police to believe scope of consent included containers in which contraband might be carried. A suspect may, however, limit the scope of consent.

State v. Rojas (1993), 92 Ohio App. 3d 336 -- Defendant may have consented to search of suitcase, but protested search of envelopes inside. Contents should have been suppressed. A suspect may revoke or limit consent to search at any time.

State v. Mack (1997), 118 Ohio App. 3d 516 -- Motorist questioned about marijuana use told officer: "Search the car, search the ashtray." This limited the scope of the search, and seizure of cocaine from fanny pack in back seat was unlawful.

State v. Rodriguez (1992), 82 Ohio App. 3d 829 -- Defendant's roadside agreement to allow officers to look inside his car was not consent to further search after car had been towed to sally port at Sheriff's headquarters which involved the use of dope dog and removal of interior panel behind which cocaine was found.

State v. Benton (1998), 82 Ohio St. 3d 316 -- Syllabus: "A warrantless search performed pursuant to a condition of parole requiring a parolee to submit to random searches of his or her person, motor vehicle, or place of residence by a parole officer at any time is constitutional. Dissent points out scope of decision is limited by enactment of R.C. 2967.13(B).

State v. Braxton (1995), 102 Ohio App. 3d 28, 36-37 -- Luggage rack from stolen car sitting on blocks outside was discovered by parole officer making home visit. Though noting conditions of parole included consent to search home and vehicle, court avoids resting decision on scope of that consent by finding actual consent was given to the parole officers when their suspicions were aroused, and that there was no evidence the parole search was used as a subterfuge for a criminal investigation otherwise lacking in probable cause.

State v. Sisler, (1995), 114 Ohio App. 3d 337 -- Blood sample was withdrawn forcibly while defendant was handcuffed to a hospital bed. Initial statement that he did not care what the f___ they did was enough for consent, which was never withdrawn. But the use of force was beyond what was necessary for effective law enforcement, and amounted to a denial of due process.

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F. Plain view (514)

State v. Little, 183 Ohio App. 3d 680, 2009-Ohio-4403 – Helicopter sweeping the county for marijuana flew over the defendants’ property at low elevation, dropping for a better view of a few plants. Search warrant turned up more marijuana being grown in the house, netting prison terms and forfeiture of the property. All this might have been OK, except the helicopter was in the airspace of the Dayton airport and there was no testimony that the pilot was in contact with the tower in compliance with federal regulation.

State v. Mays, 161 Ohio App. 3d 175, 2005-Ohio-2609 -- Officers admitted to a house while investigating possible foul play noticed the instant message "he will die today" on a computer screen. Seizure was warranted under the plain view doctrine.

State v. Gibson, 164 Ohio App. 3d 558, 2005-Ohio-6380 -- Defendant asked arresting officers to get some clothing from a drawer.  Cocaine was on open view when the drawer was open.  Since there was not a search underway, the plain view doctrine is inapplicable. The situation is analogous to the open fields doctrine.

State v. Eastman, 164 Ohio App. 3d 585, 2005-Ohio-6624 -- Officers responding to a report that crack was being smoked at an apartment asked to be admitted so they could get out of the rain.  The defendant allowed them to do so, though he could have refused, but this did not amount to consent to search the apartment.  Bag with drug residue was in plain view on a table and was properly seized.

State v. Zax-Harris, 166 Ohio App. 3d 501, 2006-Ohio-1855 -- Police detained burglary victim as she fled the house at the same time as the burglar who had prevented her from responding at the door.  Police properly conducted a protective sweep of the house.  But when the victim followed officers into the house from the porch where she had been held she did not give tacit consent to enter.  Since the police were not lawfully present contraband observed on reentry was not admissible under the plain view exception.  Nor were the defendant's incriminating statements.

State v. Thompson (1999), 134 Ohio App. 3d 1 -- Officer obtained consent to search car for weapons. Contact lens case in dashboard vent proved to contain crack. Though the case may have been in plain view, and the officer might have been suspicious as to its contents, he did not have probable cause to believe it contained contraband. Evidence was properly suppressed.

State v. Fitzgerald, 148 Ohio App. 3d 205, 2002-Ohio-2903 -- Baggie containing drugs hanging out of the defendant's pocket was in plain view, but was subject to suppression if officers were not lawfully in a position to see it. Telling the defendant to freeze, put his hands on top of the car he was driving, then drawing weapons meant it was not a consensual encounter. L.E.A.D.S. "lid" indicating someone with an outstanding warrant might be driving the car, registered someone other than the defendant, did not left detention where suspect was 6'2", 150 lbs., and the defendant was appreciably shorter and heavier.

Payton v. New York (1980), 445 U.S. 573, 587 -- Weapons or contraband found in a public place may be seized without a warrant: "The seizure of property in plain view involves no invasion or privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity."

Coolidge v. New Hampshire (1971), 403 U.S. 443, 468-470 -- Limitations on the plain view doctrine are: (1) Plain view alone is never enough to left the warrantless seizure of evidence. Warrantless search requires exigent circumstances. (2) Discovery of evidence in plain view must be inadvertent. If the police expected to find an object, but did not include it in the warrant, discovery was not inadvertent. Also see State v. Benner (1988), 40 Ohio St. 3d 301, 307-308.

State v. Williams (1978), 55 Ohio St. 2d 82 -- Paragraph one of the syllabus: "In order for evidence to be seized under the plain view exception to the search warrant requirement it must be shown that: (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the authorities."

Horton v. California (1990), 496 U.S. 128 -- Discovery of evidence in plain view need not be inadvertent. For the warrantless seizure of property in plain view to be valid: (1) the officer did not violate the Fourteenth Amendment in arriving at the place where property is in plain view, (2) the object's incrimination character must be immediately apparent, and (3) the officer must have a lawful right of access to the object itself.

State v. Roaden (1994), 98 Ohio App. 3d 500, 504 -- "(A) pretextual intrusion upon private property cannot be used to left finding items in plain view."

State v. Hunter (1988), 48 Ohio App. 3d 31 -- Headnote: "Where a search warrant describes, as items to be seized, certain business records pertaining to the sales of two particular automobiles, the seizure of other records not pertaining to those sales will not be upheld under the plain view doctrine where the incriminating nature of such records is not immediately apparent."

State v. Dabbs (1992), 80 Ohio App. 3d 748 -- Seizure of photos of partially nude but mature appearing minor, which were not listed in warrant to search for drugs, was not justified under plain view doctrine as incriminating nature of photos was not immediately apparent.

State v. Barr (1993), 86 Ohio App. 3d 227 -- Visible plastic bag was sufficiently associated with criminal activity for purposes of seizure under the plain view exception, where defendant was seen reaching into bag and handing something from it to another in an area known for drug trafficking activity. See dissent.

State v. Lamar (1993), 86 Ohio App. 3d 731, 740 -- As to whether a package wrapped in duct tape is obvious contraband, lefting seizure from glove compartment of stopped vehicle under the plain view exception: "Duct tape has become the universal packaging and repair material replacing the bailing wire and electrician's tape of earlier days, so that baseball sized objects wrapped in that substance are not peculiar to the packaging or transportation of illicit drugs or other unlawful pursuits."

State v. Robinson (1995), 103 Ohio App. 3d 490 -- Door was opened to police officers who had knocked, but not identified themselves. When defendant tried to shut the door, the officers forced their way in. Anything visible when door was initially opened would have been admissible under the plain view exception, but anything visible only after the unlawful forced entry was not.

United States v. Hensley (1985), 469 U.S. 221 -- Incriminating evidence in plain view at time of legitimate investigative stop of vehicle admissible.

Texas v. Brown (1983), 460 U.S. 730 -- Plain view seizure allowed where police stopped defendant at a license checkpoint and noticed "party balloon" containing heroin on seat and vials and other apparent drug items in glove compartment while defendant was searching for his license.

New York v. Class (1986), 475 U.S. 106 -- During a traffic stop, if officers are unable to read VIN number because it is obscured by papers on the dash, they may enter car and move papers. (Doing so led to discovery of gun under seat.) If the VIN is in plain view from outside the vehicle, no entry may be made.

Colorado v. Bannister (1980), 449 U.S. 1 -- Car was stopped for speeding and occupants got out as officer approached. Officer noticed property in car matching description of recently stolen property. Held to have been in plain view - warrant not required.

State v. Arrington (1994), 96 Ohio App. 3d 375 -- Highway Patrol officer's seizure of drugs in a cigarette case during claimed consent search of a auto and defendant's purse for weapons was beyond the scope of consent. Officer's claim of "plain view" rebutted by an affidavit he prepared on the day of the search."

State v. Claytor (1993), 85 Ohio App. 3d 623 -- Plain view exception held to apply to warrantless seizure of bag of white powder on seat of auto in bar parking lot. Also see State v. Harris (1994), 98 Ohio App. 3d 543, characterizing pills and "straight shooter" seen in car as being in "open view," meaning they were not discovered during a search and were consequently not the subject of Fourth Amendment protection. Compare State v. Davie (1993), 86 Ohio App. 3d 460 -- Cocaine found in opaque brown bag, seen on car seat after occupants had been ordered out, was not in plain view.

State v. Halczyszak (1986), 25 Ohio St. 3d 301 -- Police entered suspected chop shop with a warrant to search for a stolen Olds Cutlass. Noticing other cars, not listed in the warrant, in various stages of disassembly, VIN numbers were checked and it was ascertained that they were stolen as well. Court holds the plain view doctrine permitted seizure of autos, though they were not listed in the warrant. Holding modifies State v. Wilmoth (1982), 1 Ohio St. 3d 118 (paragraph two of the syllabus) and State v. Williams (1982), 55 Ohio St. 2d 82. Opinion purports to apply the plurality decision in Texas v. Brown (1983), 460 U.S. 730. Also see State v. Willoughby (1992), 81 Ohio App. 3d 562.

Oliver v. United States (1984), 466 U.S. 170 -- Because open fields are open to the public in a way that buildings are not, and because measures such as fences and no trespassing signs do not serve to block public view, areas beyond the curtilage of a house may be entered with a warrant. As to use of spotting scopes and binoculars see United States v. Lace, (2nd Cir. 1982), 669 F. 2d 46.

State v. Paxton (1992), 83 Ohio App. 3d 818 -- The open fields doctrine applies to outdoor commercial property.

State v. Sheets (1996), 112 Ohio App. 3d 1,7 -- There is no expectation of privacy in open fields beyond the curtilage. "Curtilage is the area immediately surrounding a dwelling...Factors to consider in pinpointing curtilage are 'the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.'" [Citing United States v. Dunn (1987), 480 U.S. 294, 300.]

State v. Bernath (1981), 3 Ohio App. 3d 229 -- Applying the open fields doctrine, a warrant was not required for entry onto unfenced farmland, not within the curtilage of the house, leading to discovery of growing marijuana. Also see Hester v. United States (1924), 265 U.S. 57.

State v. Durch (1984), 17 Ohio App. 3d 262 -- There was no reasonable expectation of privacy invaded when Humane Society officer could see emaciated dogs from portions of property normally used for access to the residence.

State v. Taylor (1978), 61 Ohio App. 2d 209 -- Headnote: "Where a police officer, lawfully standing outside a residence, observes, through an unobstructed window, the handling of illegal merchandise, such observation and the subsequent confiscation of the material constitute a legal search and seizure."

State v. Scott (1986), 27 Ohio Misc. 2d 38 -- Reasonable expectation of privacy invaded when view through gap in closed curtains was achieved by officer climbing onto her partner's shoulders.

California v. Ciraolo (1986), 476 U.S. 207 -- Naked eye observation of defendant's back yard from airplane flying at 1000' revealed growing marijuana, serving as probable cause for issuance of search warrant. Held that a warrant was not required for the initial flyover as there could be no reasonable expectation of privacy, even though the area was within the curtilage, since the public had access to airspace over the property.

Dow Chemical Co. v. United States (1986), 476 U.S. 226 -- Company did not have expectation of privacy in open areas between industrial buildings that applies to the curtilage about a residence. Court finds no Fourth Amendment violation in EPA's use of aerial mapping cameras to photograph Dow Chemical complex after permission to inspect had been refused.

Washington v. Chrisman (1982), 455 U.S. 1 -- Officer had lawfully placed defendant under arrest and accompanied him to his dorm room so he could pick up ID. Through open door, officer saw contraband in plain view. Suppression not required. Compare Athens v. Wolf (1974), 38 Ohio St. 2d 237.

State v. Stebner (1988), 46 Ohio App. 3d 145 -- A weapons under disability charge cannot be based on the seizure of the defendant's hunting guns (which were in plain view) during the execution of a valid search warrant for drugs, when the officers executing the warrant did not have prior knowledge that the defendant was under a disability and could not possess guns.

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G. Automobiles and other movable objects (515)

(1) In general - expectation of privacy - exigent circumstances

(2) Packages, luggage and other objects

(3) Inventory searches

(1) In general - expectation of privacy - exigent circumstances

Pennsylvania v. Labron (1996), 518 U.S. 938, 940 -- "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more." There need be no further demonstration of exigent circumstances. The automobile exception as it has evolved rests on both exigent circumstances and a decreased expectation of privacy in an automobile due to its pervasive regulation.

Carroll v. United States (1925), 267 U.S. 132 -- Warrantless search of a vehicle for illegal liquor was not unreasonable within the meaning of the Fourth Amendment where there was probable cause for the search.

Chambers v. Maroney (1970), 399 U.S. 42 -- Because of its mobility, a vehicle may be searched without a warrant in circumstances which would not left the warrantless search of a house or office. Such a search requires probable cause. No distinction drawn where vehicle was searched only after it had been driven to the police station.

Coolidge v. New Hampshire (1971), 403 U.S. 443, 458-464 -- Warrantless search of car parked in the defendant's driveway at the time of arrest was not justified where car was in plain view and there were no exigent circumstances excusing the need for a warrant. At pp. 461-462: "The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of Carroll v. United States (267 U.S. 132) - no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile."

Michigan v. Thomas (1982), 458 U.S. 259 -- If the police had probable cause to conduct a warrantless search of a vehicle, that search may be conducted even after the vehicle has been impounded. Also see Florida v. Meyers (1984), 466 U.S. 381.

Florida v. White (1999), 526 U.S. 559 -- Officers did not have probable cause to believe car contained contraband, but did have probable cause that it was subject to forfeiture because it had in the past used to transport drugs. Warrantless seizure was valid. Drugs revealed during inventory search were not suppressible.

Almeida-Sanchez v. United States (1973), 413 U.S. 266 -- Notwithstanding statutory authorization for searches within 100 air miles of any international boundary, the warrantless search of an auto 25 miles from the Mexican border, unsupported by probable cause and without consent, was in violation of the Fourth Amendment.

Knowles v. Iowa (1998), 525 U.S. 113 -- Motorist was cited for a traffic offense but not arrested. Iowa law permitting a full search of the vehicle in such circumstances was contrary to the Fourth Amendment. Searches incident to arrest are justified by considerations of officer safety and preservation of evidence, neither of which warrant allowing a comparable search when only a citation is issued.

California v. Carney (1985), 471 U.S. 386 -- Motor homes fall within the automobile exception when they are being used on the highways, or are capable of such use, and are parked in an area not regularly used for residential purposes. Vehicle here was parked on a lot in downtown San Diego.

State v. Denune (1992), 82 Ohio App. 3d 497, 507 -- "Under the automobile exception, probable cause must be based on objective facts that could left the issuance of a warrant by a magistrate...This determination...involves an examination of the totality of the circumstances to make a practical, common sense decision whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." Anonymous tip that toxic waste was being transported in a truck departing a warehouse, combined with surveillance of truck as it drove to a salvage yard did not rise to probable cause.

State v. Mays (1996), 108 Ohio App. 3d 598, 614-616 -- Rogue dentist parked his car on the street while police were executing a search warrant at his home. Police saw a jacket in the car which matched the description of clothing worn by the assailant of the person the dentist had sold his practice to. Exigent circumstances justified seizure of car without a warrant.

State v. Gravin (1974), 44 Ohio App. 2d 303 -- Tip from informant, whose reliability was unknown, corroborated by observation of suspects in potential jailbreak and information car was registered to the sister of a prisoner justified warrantless search.

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(2) Packages, luggage and other objects

State v. Smith, 124 Ohio St. 3d 163, 2009-Ohio-6426 – Syllabus: "The warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."

Bond v. United States (2000), 529 U.S. 334, 120 S.Ct. 1462 -- Border patrol agent squeezed defendant's suitcase, felt a brick-like object, and upon owner's consent to search found methamphetamines. Fourth Amendment violation found. By putting an object in an opaque bag and placing it in the rack above his seat defendant had a reasonable expectation of privacy.

United States v. Ross (1982), 456 U.S. 798 -- When police officers have probable cause to conduct a warrantless search of an auto, this search may extend to all parts of the vehicle and containers, packages or luggage therein, provided the scope of the search is limited by the nature of the probable cause. For example, search for illegal aliens would not left opening a suitcase. This rule does not extend to packages, luggage and other containers generally, nor may the authorities use movement of such objects into a vehicle as a pretext for search.

United States v. Johns (1984), 469 U.S. 478 -- Suspected packages of marijuana from seized trucks were not searched until they had sat in a warehouse for three days. Warrantless search said not to have been unreasonable.

California v. Acevedo (1991), 500 U.S. 565 -- Officers had probable cause as to package taken into a car which drove off, but otherwise did not have reason to believe there was contraband in the car. Warrantless stop of the car was valid. Overrules Arkansas v. Saunders (1979), 442 U.S. 753 and United States v. Chadwick (1977), 433 U.S. 1.

Wyoming v. Houghton (1999), 526 U.S. 295 -- If there is probable cause to search a vehicle for contraband, the search may extend to packages belonging to passengers, if they are capable of concealing the object of the search. Officer saw syringe in boyfriend's pocket. Drugs were in purse.

Illinois v. Andreas (1983), 463 U.S. 765 -- Contraband was found in package during customs search, following which a controlled delivery was made to the consignee. Search warrant was not required for second search of package when defendant was seen leaving his home with it in his possession.

State v. Peagler (1996), 76 Ohio St. 3d 496 -- Paragraph two of the syllabus: "When a police impoundment policy specifically addresses the inventory of closed containers and governs the procedures to be used by the police, the opening pursuant to this policy of a closed container by the police is not pretextual and thus is reasonable for Fourth Amendment purposes."

State v. Vanscoder (1994), 92 Ohio App. 3d 853 -- Flickering taillight and loud muffler justified stop of car. Odor of burning marijuana and readily visible "roach in the ashtray" justified warrantless search under the automobile exception to the warrants requirement of both the vehicle and the closed garbage bag on the back seat.

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(3) Inventory searches

Blue Ash v. Kavanaugh, 113 Ohio St. 3d 67, 2007-Ohio-1103 -- Though the lone dissenting justice believes driving with an expired license and expired tags is a proper matter for a warning, the majority endorses the decision of a city cop patrolling the freeway to have a car impounded, then having a dog sniff the car while waiting for the tow truck.

South Dakota v. Opperman (1976), 428 U.S. 364 -- The expectation of privacy with respect to one's automobile is said to be less that relating to one's home or office. As a part of their "community caretaking function," when the police impound a vehicle they may adopt and follow a routing practice of securing and inventorying the vehicle and its contents, without a warrant.

Cooper v. California (1967), 386 U.S. 58 -- Police impounded defendant's car under law requiring them to do so if car was subject to forfeiture for a violation of narcotics laws. Search turned up evidence used at trial. Held that search of impounded car which was related to its retention, rather than charges against the defendant, was reasonable under the Fourth Amendment.

State v. Robinson (1979), 58 Ohio St. 2d 478 -- Syllabus: "A standard inventory search of the trunk of a lawfully impounded automobile does not contravene the Fourth Amendment to the United States Constitution."

State v. Hathman (1992), 65 Ohio St. 3d 403 -- Syllabus: "(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...(2) If, during a valid inventory search of a lawfully impounded vehicle, a law enforcement official discovers a closed container, the container may be opened as a part of the inventory process if there is in existence a standardized policy or practice specifically governing the opening of such containers..." Applying South Dakota v. Opperman (1976), 428 U.S. 363; Colorado v. Bertine (1987), 479 U.S. 367; Florida v. Wells (1990), 495 U.S. 1. Also see State v. Congeni (1995), 104 Ohio App. 3d 726, 732-735; State v. Swilley (May 19, 1994), Franklin Co. App. No. 93APA11-1551, unreported (1994 Opinions 2217); State v. Duncan (1996), 77 Ohio Misc. 2d 7; State v. Brown (1995), 74 Ohio Misc. 2d 98. Also see State v. Mesa (1999), 87 Ohio St. 3d 105 (distinction between closed and locked compartments).

State v. Caponi (1984), 12 Ohio St. 3d 302 -- Police delayed execution of arrest warrant and kept defendant under surveillance for several days, finally making arrest as he was operating his car, which was impounded and searched. Syllabus: "A search which is conducted with an investigatory intent, and which is not conducted in the manner of an inventory search, does not constitute and 'inventory search' and may not be used as a pretext to conduct a warrantless evidentiary search."

State v. Brown (1992), 65 Ohio St. 3d 483 -- Where evidence seized as the result of an illegal inventory search could not reasonably have contributed to conviction, error in admission is harmless beyond a reasonable doubt. See dissent as to danger of overly broad application of the harmless error rule.

State v. Gordon (1994), 95 Ohio App. 3d 334 -- Inventory search was proper where there was testimony that written police department procedures required impoundment of car when the driver was not licensed, there was no licensed passenger, and the car was illegally parked. It was permissible for the search to be conducted before the car was towed.

State v. Himmelhaver (1987), 39 Ohio App. 3d 42 -- Failure to follow standard procedures, evidenced by completed inventory form and disagreement between officers conducting the search as to the location of property indicated so called inventory search was merely a pretext for a warrantless evidentiary search.

State v. Rose (1997), 118 Ohio App. 3d 864 -- Searching vents of car to be impounded because they were a common place to hide contraband took search beyond permissible limits of inventory search.

State v. Bronaugh (1984), 16 Ohio App. 3d 237, 242 -- Inventory search may include closed containers found in the trunk.

State v. Cole (1994), 93 Ohio App. 3d 712 -- Inventory search of car lawfully parked on private property, following the arrest of the defendant in the area nearby, was unlawful. Akron police department policy of inventorying and towing car following arrest of driver was not sufficient basis to left search. Also see State v. Collura (1991), 72 Ohio App. 3d 364.

State v. Smith (1992), 80 Ohio App. 3d 337 -- Where impoundment was a mere pretext for searching vehicle, evidence must be suppressed. Defendant was arrested away from car, but his keys were taken by the officers. ("Capone 1" probably a poor choice for vanity plates.)

State v. DiGiorgio (1996), 117 Ohio App. 3d 67 -- It is not unlawful for a person to drive without their license on their person. Officer's refusal to accept defendant's proof that he had a license was unreasonable. Because there was no probable cause for arrest, the arrest was illegal and results of inventory search of vehicle must be suppressed.

State v. Taylor (1996), 114 Ohio App. 3d 416 -- Car was stopped because of excessive window tint. R.C. 4513.02(E) allowed officer to order car removed from the road, but did not authorize impoundment. Because vehicle was not lawfully impounded, inventory search yielding a gun was illegal.

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H. Administrative searches (516)

State v. Book, 165 Ohio App. 3d 511, 2006-Ohio-1102 -- Sign alerted those entering the courthouse they were subject to being searched for weapons and drugs. Magnetometer went off when defendant passed through. Search disclosed pill bottle containing methamphetamine. While an administrative search could extend to drugs, it must have a valid administrative purpose to satisfy the reasonableness requirement of the Fourteenth Amendment. Here the guards would allow some people they knew to pass, though there was no objective rule in this regard and the Supreme Court's security standards discourage exceptions. Evidence was properly suppressed.

State v. Desper, 151 Ohio App. 3d 208, 2002-Ohio-7176 -- Ferguson v. City of Charleston (2001), 532 U.S. 67, involving positive urine test results of pregnant women being turned over to the police, does not overrule Stone v. Stow (1992), 64 Ohio St. 3d 164, which upheld statutes allowing law enforcement access to pharmacy records in pursuit of a specific investigation. Use of the records at issue in Desper, in an oxycontin investigation, met the requisites for a proper administrative search.

State v. Grays, Cuyahoga App. No. 82410, 2003-Ohio-6889 -- The Cleveland ordinance permitting administrative searches at junkyards sufficiently limits the scope of the investigatory search. New York v. Burger (1987), 482 U.S. 691, applied.

Camara v. Municipal Court of the City and County of San Francisco (1967), 387 U.S. 523 -- There is no blanket exception to the warrants requirement of the Fourth Amendment for warrantless administrative searches of personal residences for purposes of building code enforcement. While warrants are required, the probable cause for issuance does not focus on an individual residence, but rather on appraisal of conditions in the area as a whole. Also see See v. City of Seattle (1967), 387 U.S. 541.

Colonnade Catering Corp. v. United States (1970), 397 U.S. 72 -- Where Congress has provided a penalty if liquor permit holder does not permit inspection, warrantless forced entry by inspector is not allowed.

United States v. Biswell (1972), 406 U.S. 311 -- Warrantless search of gun dealer's storeroom, as provided for by statute and upon assertion of right to inspect by agent which defendant complied with, was not in violation of the Fourth Amendment. Defendant elected to engage in a highly regulated business, diminishing privacy expectations.

Donovan v. Dewey (1981), 452 U.S. 594 -- Though searches of private homes generally require a warrant, warrantless searches of business premises (here mines) may legitimately be authorized by statute, if such searches are necessary to further a regulatory scheme and the certainty and regularity of the statute's inspection scheme is an adequate substitute for a warrant.

New York v. Burger (1987), 482 U.S. 691 -- Statute authorizing warrantless searches of business premises in a closely regulated industry (here junkyards) does not violate the Fourth Amendment warrants requirement where the statute serves a legitimate state interest, the prospect of searches is made known to business operators and the scope of the inspection is limited.

Michigan v. Tyler (1978), 436 U.S. 499 -- Generally the warrants requirement of the Fourth Amendment applies to arson investigations. However, firemen may enter a burning building without a warrant and for a reasonable time after extinguishing the blaze may seize items in plain view and investigate the causes of the fire. Reentry a short time later, when visibility has improved, may not require a warrant, but reentry on subsequent days, absent consent, requires a warrant.

Michigan v. Clifford (1984), 464 U.S. 287 -- Where a reasonable privacy interest remains in premises damaged by fire, the warrants requirement of the Fourth Amendment applies. Absent consent or exigent circumstances, an administrative search warrant is sufficient if the primary purpose of the investigation is to determine the cause and origin of the fire. If the search is a part of a criminal investigation, a criminal warrant is required. (Four justices concur in opinion, fifth in judgment.)

Griffin v. Wisconsin (1987), 483 U.S. 868 -- Warrantless search of probationer's home may be "reasonable" within the meaning of the Fourth Amendment if conducted pursuant to a rule of probation found to be a reasonable response to the special needs of the probation system. Compare State v. Burkholder (1984), 12 Ohio St. 2d 205 -- Applying the Ohio Constitution, exclusionary rule for illegally seized evidence applies at probation revocation hearing.

State v. Penn (1991), 61 Ohio St. 3d 720, 726 -- An agency of the state may not be used as a surrogate for the police to obviate the constitutional duty to obtain a search warrant.

AL Post 763 v. Ohio Liquor Control Commission (1998), 82 Ohio St. 3d 108 -- Paragraph 2 of the syllabus: "When conducting a warrantless administrative search pursuant to a constitutionally valid statutory inspection program, peace officers and authorized agents or employees of the Department of Liquor Control need not identify themselves prior to gaining entry to permit premises."

State v. VFW Post 3562 (1988), 37 Ohio App. 3d 310 -- Syllabus: "(1) R.C. 4301.10(A)(4), (6), and (7) and Ohio Adm. Code 4301:1-1-53 are unconstitutional insofar as they fail to establish time, place, and scope limitations on warrantless administrative searches of liquor establishments by agents of the Department of Liquor Control. (2) Evidence obtained as a result of a warrantless administrative search may not be used in a criminal prosecution under a statute of general criminality not related to the provisions of R.C. Chapters 4301 and 4303."

State v. Akron Airport Post No. 8975 (1985), 19 Ohio St. 3d 49 --Though premises may be subject to warrantless inspection by agents of the Department of Liquor Control, this did not legitimate warrantless entry by detectives to private club and confiscation of video gambling machines.

State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St. 3d 141 -- Liquor control agents fabricated a story to gain access to a fraternity house, where beer was purchased from a vending machine. Syllabus: "Pursuant to Section 14, Article I of the Ohio Constitution, and in the absence of any judicially recognized exception to the warrant requirement, government officers are not privileged to deceptively gain entry into the private home or office of another without a warrant, where such home or office is not a commercial center of criminal activity, and where the invitation to enter the private home or office was not extended by the occupant for the purpose of conducting illegal activity. (Gouled v. United States [1921], 255 U.S. 298; and Lewis v. United States [1966], 385 U.S. 206, followed.)

State v. Zinmeister (1985), 27 Ohio App. 3d 313 -- Because the towing business and other businesses relating to sales, repair and salvage of motor vehicles are closely regulated businesses, municipal ordinance permitting warrantless inspection of premises is constitutional. However warrantless seizure of auto parts was unlawful.

Ohio Environmental Protection Agency v. Ross (1989), 63 Ohio App. 3d 648 -- A motion to quash an administrative search warrant, pursuant to the criminal or civil rules, does not lie when no court action is pending. To attack the warrant it was incumbent on the complaining party to initiate an action such as one seeking a declaratory judgment or injunctive relief.

State v. Coomer (1984), 20 Ohio App. 3d 264 -- No search warrant required for arson investigation conducted before firefighters cleared the scene.

State v. Finnell (1996), 115 Ohio App. 3d 583 -- Cincinnati required owners of vacant buildings to obtain a "Vacant Building Maintenance License," which required the owner to submit to a warrantless search of the premises. Because the owner had an expectation of privacy in the premises, the scheme was in violation of the Fourth Amendment. The city had the option of establishing a warrants procedure for undertaking any necessary inspections.

State v. Denune (1992), 82 Ohio App. 3d 497, 505-506 -- Statutes detailing the duties of the EPA may not be used to circumvent the warrants requirement or to shift the burden to the defendant of proving a search was unlawful.

Toledo v. Bateson (1992), 83 Ohio App. 3d 195 -- Ordinance governing environmental services inspectors required reasonable notice of inspections. City's claim of consent to unnotified inspection falls to defendant's testimony she had told inspector her attorney advised she did not have to permit the inspection.

State v. Paxton (1992), 83 Ohio App. 3d 818, 826 -- Court finds statute requiring consent or search warrant for inspection of licensed disposal site did not apply to unlicensed facility. (But search must be otherwise lawful.)

Toledo v. SETO, Inc. (1996), 81 Ohio Misc. 2d 1 -- Warrantless administrative inspection of sprinkler system following false alarms was a "routine regulatory inspection rather than a mission to gather evidence of a crime."

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I. School searches (517)

Safford United School District No. 1 v. Redding (2009), 129 S.Ct. 2633 – School police barred students bringing over the counter pain killers to school without advance permission. Plaintiff in a 1983 suit and another girl were suspected of having pain pills. Search of plaintiff‘s backpack and outer clothing was permissible. For a school search reasonable suspicion short of probable cause is all that is required. But further having the student pull her underwear out from her body amounted to a strip search, requiring further justification, taking into account the objectives of the search and whether the search is excessively intrusive given the age and sex of the student. Search violated the Fourth Amendment.

In re K.K., 192 Ohio App. 3d 650, 2011-Ohio-192 – Officer assigned to high school passed on an anonymous tip from another officer. Juvenile was removed from class, searched, and ultimately found delinquent because of drug possession. School searches may be based on less than probable cause. Search here was “reasonable.” Though the tip was not further investigated for corroboration, as would have been necessary if an officer conducted the search, removal and search was the result of the school’s “zero tolerance” policy, thus independent of the police. It did not constitute “state action.” Scope of search was minimally intrusive. MTS properly denied. See dissent.

In re Sumpter, Stark App. No. 2004-CA-00161, 2004-Ohio-6513 -- Teacher overheard the defendant "knocking," described as a clicking and whistling sound used to advertise drugs for sale.  Suspicious activity followed. Warrantless search by an officer assigned to the school, conducted at the request of an assistant principal, did not violate the Fourth Amendment.  New Jersey v. T.L.O. (1985), 469 U.S. 325, applied.

Vernonia School District 47J v. Acton (1995), 515 U.S. 646 -- Court approves random drug testing of student athletes. (1) When the practice under consideration did not exist at the time a constitutional provision was enacted, must balance intrusion upon Fourth Amendment interests against promotion of legitimate governmental interests. (2) Given the nature of the school setting, and what the court deems a lack of privacy rights on the part of student athletes, random testing may be undertaken without individualized suspicion. (3) Though testing on an individualized suspicion basis would have been less intrusive, the Fourth Amendment does not require use of the least intrusive search practicable.

New Jersey v. T.L.O. (1985), 469 U.S. 325 -- (1) The Fourth Amendment applies to searches conducted by public school officials. Such officials act as agents of the state and not in loco parentis. (2) Students have an expectation of privacy in personal items they bring with them to school which, in measuring the reasonableness of a search, must be balanced against the school's interest in maintaining an environment in which learning can take place. (3) Searches by school officials do not require a warrant and may be based on less than probable cause. Determination of reasonableness turns on whether the action was justified at its inception and whether the scope of the search as conducted was reasonably related to the circumstances lefting such interference. Also see Tarter v. Raybuck (6th Cir. 1984), 742 F. 2d 977, 982; Horton v. Goose Creek Indep. School Dist. (5th Cir. 1982), 690 F. 2d 470 (use of dope dog OK).

In re Adam (1997), 120 Ohio App. 3d 364 -- Principal believed student had been smoking marijuana and searched locker, seizing a pipe which was the basis for a paraphernalia charge. (1) Applying R.C. 3313.20(B)(1)(a) the search was valid because it was based on "reasonable suspicion." (2) R.C. 3313.29(B)(1)(b), permitting searches at any time without reasonable suspicion if a sign is posted to that effect is held unconstitutional, applying New Jersey v. T.L.O. (1985), 469 U.S. 325.

In re Dengg (1999), 132 Ohio App. 3d 360 -- Dope dog checked lockers, then cars in school lot. Warrantless search of student's car upon alert was OK. See dissent.

Athens v. Wolf (1974), 38 Ohio St. 2d 237 -- Paragraph one of the syllabus: "A college student residing in a dormitory room is entitled to protection, under the Fourth and Fourteenth Amendments to the United States Constitution, from unreasonable searches and seizures."

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J. Searches by private parties (508)

State v. Cook, 149 Ohio App. 3d 422, 2002-Ohio-4812, ¶3-15 -- Visiting brother-in-law found kiddie-porn on computer, made copies to a disk and took it to the police. In furtherance of obtaining a warrant he was asked to bring in a piece of mail addressed to the defendant. Suppression not required. As to making copies, brother-in-law had so far had no contact with the police, and thus, was not acting as their agent. Providing a piece of mail at police request was of no consequence in determining the validity of the warrant. For a search of the premises, magistrate only had to determine whether criminal activity was being conducted. Defendant's person was not searched.

State v. Meyers, 146 Ohio App. 3d 563, 2001-Ohio-2282 -- Test results from blood drawn by the hospital tending to injured motorist were obtained by an officer who filed drunk driving charges. The hospital's conduct in drawing blood and running tests is held not to constitute state action. R.C. 2317.02 abrogates physician-patient privilege and allows law enforcement to obtain test results, but it does not convert the hospital's independent action to state action. Opinion refers to the "sovereign function test', the "compulsion test" and the "symbiotic relationship or nexus test".

State v. Jedd, 146 Ohio App. 3d 167, 2001-Ohio-2479 -- A request to be on the lookout for suspicious items or behavior is not enough to turn a private search into a governmental action. Agent asked Federal Express to notify him when suspicious packages addressed to one of the defendants came through their office. By the time the agent had further communication with the company, the package had already been opened.

State v. Goffee, 161 Ohio App. 3d 199, 2005-Ohio-2596 -- The fruits of a search by hospital security guards are not subject to suppression. They did not act as agents of the state.

State v. Willis, 169 Ohio App. 3d 364, 2006-Ohio-5754 -- Former girlfriend went into defendant's apartment and gathered information used to obtain a search warrant. There was conflicting testimony concerning the degree to which her actions had been encouraged by the police. Majority accepts the trial court's conclusion that the search served a private and not a public function.

Burdeau v. McDowell (1921), 256 U.S. 465 -- The Fourth Amendment protection against unreasonable searches and seizures applies only to actions by government authorities and their agents.

Walter v. United States (1980), 447 U.S. 649 -- Porno movies were mistakenly delivered to third party who opened the box but was unable to view the actual films. Films were turned over to FBI agents who viewed them without first obtaining a warrant. Since the content of the films was unknown to the person who received them, projection by the FBI constituted a further search, which required a warrant.

United States v. Jacobsen (1984), 466 U.S. 109 -- Private freight carrier (Federal Express) inspected damaged package and noticed white powder. DEA was contacted, agent removed bag from packaging and field tested powder which turned out to be cocaine. No Fourth Amendment violation since removal by agent revealed nothing that had not been discovered by carrier.

State v. Villagomez (1974), 44 Ohio App. 2d 209 -- Headnote 4: "Evidence obtained as the result of a wrongful search by a private individual may be admitted into evidence in a criminal prosecution against the victim of the search, if that search was not in any way instigated or participated in by government agents."

State v. Morris (1975), 42 Ohio St. 2d 307 -- Clerks in baggage room of Toledo train station were suspicious as to contents of checked suitcase, mainly because it was the first checked baggage in six months. After a couple of days police officers assisted in opening the bag which contained large quantities of heroin and cocaine. Court construes search as a private search with police participation resulting from concern for public safety rather than intention to gather evidence.

United States v. Coleman (6th Cir. 1980), 628 F. 2d 961 -- Pickup was repossessed by private party on behalf of lending institution. Police merely stood by in case there were difficulties. Contraband found in vehicle held to have been discovered through private and not state action and thus was not subject to suppression.

State v. Duncan (1998), 130 Ohio App. 3d 77, 83-84 -- Bags of trash removed from a hotel room by cleaning staff held admissible. Appellate court defers to finding they were not removed at the direction of narcotics agents, though they were turned over to agents at the direction of the on-duty manager.

State v. Henry (1981), 1 Ohio App. 3d 126 -- Exclusionary rule not applied to carbine taken from motel room by maid and turned over to the police by the management.

State v. McDaniel (1975), 44 Ohio App. 2d 163 -- Headnote 3: "A search made by a security employee employed by a department store, and acting solely on behalf of and for the benefit of the store, does not constitute governmental action or participation, even though such employee is commissioned as a special deputy sheriff.

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K. Border searches (518)

United States v. Flores-Montano (2004), 124 S.Ct. 1582 -- A routine border search may include the removal and disassembly of a fuel tank, though there is no suspicion that it contains contraband.

Almeida-Sanchez v. United States (1973), 413 U.S. 266 -- Notwithstanding statutory authorization for searches within 100 air miles of any international boundary, the warrantless search of an auto 25 miles from the Mexican border, unsupported by probable cause and without consent, was in violation of the Fourth Amendment.

United States v. Montoya de Hernandez (1985), 473 U.S. 531 -- In the presence of an articulable suspicion that an arriving air passenger from Columbia was smuggling drugs in her alimentary canal, sixteen hour detention at the airport was reasonable after subject refused to be X-rayed. Subject could not be placed on next return flight and refused use of bathroom. Drugs were found after customs officials obtained an order signed by a federal magistrate authorizing an involuntary X-ray, pregnancy test and rectal examination.

United States v. Onyema (E.D.N.Y. 1991), 766 F. Supp. 76 -- Extended detention, without judicial authorization, of incoming airline passenger suspected of carrying drugs in his alimentary tract was contrary to the Fourth Amendment.

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