[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Toran, Slip Opinion No.
2023-Ohio-3564.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
Slip Opinion No. 2023-Ohio-3564
THE STATE OF OHIO, APPELLANT, v. TORAN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Toran, Slip Opinion No. 2023-Ohio-3564.]
Criminal law—Fourth Amendment to United States Constitution—Warrantless
searches—Inventory searches—Government’s failure to submit copy of
written inventory-search procedure into evidence in support of warrantless
inventory search does not render search per se unreasonable—Law-enforcement officer’s testimony attributing inventory-search policy to law-enforcement agency that conducted inventory search, explaining when
policy must be followed, and explaining whether policy was followed,
combined with body-camera footage documenting search, is sufficient
evidence to establish existence of such procedure, that officer who
conducted search acted in accordance with policy, and that search was
reasonable, and therefore lawful, under Fourth Amendment—Court of
appeals’ judgment reversed and convictions reinstated.
(No. 2022-1203—Submitted June 28, 2023—Decided October 4, 2023.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-210431, 2022-Ohio-2796.
SUPREME COURT OF OHIO
__________________
KENNEDY, C.J.
{¶ 1} In this discretionary appeal from a judgment of the First District Court
of Appeals, we consider whether a deputy sheriff’s testimony and body-camera
footage was sufficient evidence to support a finding that a warrantless inventory
search of a vehicle was reasonable, and therefore lawful, under the Fourth
Amendment to the United States Constitution.
{¶ 2} The Fourth Amendment protects citizens from unreasonable searches
and seizures. Typically, the government must obtain a warrant before performing
a search, but there are exceptions to this rule. Katz v. United States, 389 U.S. 347,
357-358,
88 S.Ct. 507,
19 L.E.2d 576 (1967). One exception is when law
enforcement performs an inventory search of an automobile. Illinois v. Lafayette,
462 U.S. 640, 643,
103 S.Ct. 2605,
77 L.Ed.2d 65 (1983). For that exception to
apply, the law-enforcement agency must have adopted before the search a
standardized procedure for inventory searches. See South Dakota v. Opperman,
428 U.S. 364, 372,
96 S.Ct. 3092,
49 L.Ed.2d 1000 (1976). Such procedures are
put into place to carry out certain community-caretaking functions, such as
protecting citizens’ property, protecting law enforcement against claims for damage
to property, and ensuring officer safety.
Id. at 368-369; Colorado v. Bertine,
479
U.S. 367, 372,
107 S.Ct. 738,
93 L.Ed.2d 739 (1987). When law-enforcement
officers comply with these procedures in good faith, a warrantless inventory search
is reasonable and lawful under the Fourth Amendment.
Bertine at 374; see
Opperman at 376.
{¶ 3} Appellee, Jamie Toran, was driving under a suspended driver’s
license when Hamilton County Sheriff’s Deputy Kevin Singleton pulled him over.
Deputy Singleton subsequently impounded the truck that Toran was driving and
performed an inventory search that revealed a handgun in the truck’s right door
panel. Toran moved to suppress the evidence of the gun on Fourth Amendment
2
January Term, 2023
grounds. At the suppression hearing, the state did not submit into evidence a
written copy of the sheriff’s office’s inventory-search procedures. Instead, Deputy
Singleton testified about the policy, although not at length. The trial court denied
Toran’s motion to suppress, and Toran later pled no contest to felony charges
stemming from the search. The trial court found him guilty of the offenses and
sentenced him to five years of community control. The First District reversed
Toran’s convictions and the trial court’s decision on Toran’s suppression motion,
2022-Ohio-2796, ¶ 31, and the state appealed to this court.
{¶ 4} We hold that the government’s failure to submit a copy of written
inventory-search procedures into evidence in support of a warrantless inventory
search does not render the search per se unreasonable. We further hold that a law-enforcement officer’s testimony that attributes an inventory-search policy to the
law-enforcement agency that conducted the inventory search, explains when the
policy must be followed, and explains whether the policy was followed, combined
with body-camera footage documenting the inventory search, is sufficient evidence
to establish the existence of such procedures, that the officer who conducted the
search acted in accordance with the policy, and that the search was reasonable, and
therefore lawful, under the Fourth Amendment.
{¶ 5} We therefore reverse the judgment of the First District and reinstate
Toran’s convictions.
I. Facts and Procedural History
{¶ 6} In 2019, Deputy Singleton was on patrol when he stopped a truck for
improperly displaying a temporary license plate in violation of R.C. 4503.21.
Toran was the driver of the truck. After obtaining Toran’s personal information,
Deputy Singleton learned that Toran’s license had been suspended since 2016.
Driving under a suspended driver’s license is a violation of R.C. 4510.111(A).
{¶ 7} Although the truck was legally parked following the stop, Deputy
Singleton determined that it would need to be towed and impounded under the
3
SUPREME COURT OF OHIO
sheriff’s office’s policy because Toran had a suspended driver’s license. Deputy
Singleton then conducted an inventory search of the truck. Deputy Singleton’s
body-camera footage captured him stating at the beginning of the search that he
was going to have the vehicle towed and would conduct an inventory search of the
vehicle. During the search, Deputy Singleton discovered a loaded handgun in the
truck’s right door panel.
{¶ 8} Upon discovering the gun, Deputy Singleton halted the search and
placed Toran under arrest, securing him in the back seat of the deputy’s cruiser.
Deputy Singleton then secured the gun by removing the ammunition from it,
placing the gun into a folder and the ammunition into a clear bag, and then
consolidating the folder and the clear bag into a bag marked “Evidence/Property.”
He then resumed the search, finding Toran’s prescription medication. He secured
the medication by placing it into a folder in the trunk of his cruiser. And after
finishing the search, he also placed the evidence bag containing the gun and the
ammunition into the trunk of his cruiser.
{¶ 9} Toran was later indicted on one count each of fourth-degree-felony
carrying concealed weapons, fourth-degree-felony improperly handling firearms in
a motor vehicle, and third-degree-felony having weapons while under disability.
{¶ 10} Toran moved to suppress the evidence of the gun on the grounds that
Deputy Singleton’s search of the truck violated his rights under the Fourth
Amendment to the United States Constitution and Article I, Section 14 of the Ohio
Constitution. At the suppression hearing, Deputy Singleton testified about the stop
and the search. He explained what happened after he determined the truck was
going to be impounded:
Due to the stop and [Toran’s] status, what our policy is, an
inventory search of that vehicle was conducted, any damage,
anything. I have been doing this occupation, road patrol, just short
4
January Term, 2023
of 20 years. I am systematic about how we do the tows because, if
there is damage all over the car, valuables can be in the car, and
officers need to be accountable.
{¶ 11} During the hearing, Deputy Singleton’s body-camera footage was
admitted into evidence without objection. The trial court viewed the footage, up to
the point of Toran’s arrest, in chambers. At the conclusion of the hearing, the court
determined that the “[s]heriff’s department, by policy, indicated the deputy’s duty
was to conduct an inventory search, which was done.” The court denied Toran’s
motion to suppress, and Toran later pled no contest to all the counts in the
indictment. The trial court found him guilty of the offenses and sentenced him to
five years of community control.
{¶ 12} Toran appealed his convictions to the First District. He argued that
the trial court erred in denying his motion to suppress because, in his view, the
traffic stop was unlawful and, relevant here, the warrantless search of the truck was
not a proper inventory search under the Fourth Amendment and Article I, Section
14, 2022-Ohio-2796 at ¶ 13, 22, although he did not set forth a separate argument
under the Ohio Constitution. Toran did not challenge Deputy Singleton’s decision
to impound the truck. The court of appeals held that the traffic stop was lawful, id.
at ¶ 21, but that the search “was not reasonable under the Fourth Amendment,”
because the state’s evidence was “insufficient to demonstrate that the inventory
search of the vehicle was made in accordance with standardized procedures of the
sheriff’s department,” id. at ¶ 30. The court reversed Toran’s convictions and the
trial court’s judgment denying his motion to suppress. Id. at ¶ 31.
{¶ 13} The state appealed, and we accepted jurisdiction to consider a single
proposition of law:
5
SUPREME COURT OF OHIO
Where the stop and impoundment of a vehicle is lawful, the
subsequent inventory search of the vehicle in accordance with
Sheriff Department procedures is not rendered constitutionally
unreasonable by the State’s failure to introduce actual written policy
into evidence or the deputy’s failure to testify as to specific details
of the policy at the suppression hearing.
See 168 Ohio St.3d 1471,
2022-Ohio-4380,
199 N.E.3d 546.
II. Standard of Review
{¶ 14} Appellate review of a ruling on a motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372,
797 N.E.2d 71, ¶ 8. An appellate court must accept the trial court’s findings
of fact if they are supported by competent, credible evidence. See State v. Fanning,
1 Ohio St.3d 19, 20,
437 N.E.2d 583 (1982). But the appellate court must decide
the legal questions independently, without deference to the trial court’s decision.
Burnside at ¶ 8.
III. Law and Analysis
A. The Fourth Amendment and Inventory Searches
{¶ 15} The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
{¶ 16} Reasonableness, therefore, is paramount in determining whether a
search was lawful under the Fourth Amendment. And “except in certain carefully
6
January Term, 2023
defined classes of cases, a search of private property without consent is
‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara
v. Mun. Court of San Francisco, 387 U.S. 523, 528-529,
87 S.Ct. 1727,
18 L.Ed.2d
930 (1967).
{¶ 17} One exception to the warrant requirement is the reasonable inventory
search of a vehicle. See Opperman, 428 U.S. at 373,
96 S.Ct. 3092,
49 L.Ed.2d
1000. The reasoning behind this exception comes from the “community caretaking
functions” that law-enforcement officers often engage in when dealing with
vehicles. Cady v. Dombrowski,
413 U.S. 433, 441,
93 S.Ct. 2523,
37 L.Ed.2d 706
(1973). Inventory searches function “to protect an owner’s property while it is in
the custody of the police, to insure against claims of lost, stolen, or vandalized
property, and to guard the police from danger.” Bertine,
479 U.S. at 372,
107 S.Ct.
738,
93 L.Ed.2d 739. Deference is afforded to such “police caretaking procedures
designed to secure and protect vehicles and their contents within police custody.”
Id. But such deference does not give law-enforcement officers free reign; rather,
inventory searches must be conducted in good faith and not for the sole purpose of
investigation. See
id. at 372, 374.
{¶ 18} The Fourth Amendment is enforceable against the states through the
Fourteenth Amendment to the United States Constitution. Mapp v. Ohio, 367
U.S. 643, 655, 660,
81 S.Ct. 1684,
6 L.Ed.2d 1081 (1961). Based on the federal
caselaw discussed above, we have determined that warrantless inventory searches
are lawful if they are conducted “in good faith and in accordance with reasonable
standardized procedure(s) or established routine,” State v. Hathman,
65 Ohio
St.3d 403,
604 N.E.2d 743 (1992), paragraph one of the syllabus. Regarding the
process of evaluating a law-enforcement officer’s good faith, the United States
Supreme Court has said:
7
SUPREME COURT OF OHIO
“[O]ur good-faith inquiry is confined to the objectively
ascertainable question whether a reasonably well trained officer
would have known that the search was illegal” in light of “all of the
circumstances.” [United States v.] Leon, 468 U.S. [897,] 922, n. 23,
104 S.Ct. 3405[,
82 L.Ed.2d 677 (1984)]. These circumstances
frequently include a particular officer’s knowledge and experience,
but that does not make the test any more subjective than the one for
probable cause, which looks to an officer’s knowledge and
experience, Ornelas v. United States, 517 U.S. 690, 699-700,
116
S.Ct. 1657,
134 L.Ed.2d 911 (1996), but not his subjective intent,
Whren v. United States, 517 U.S. 806, 812-813,
116 S.Ct. 1769,
135
L.Ed.2d 89 (1996).
Herring v. United States,
555 U.S. 135, 145-146,
129 S.Ct. 695,
172 L.Ed.2d 496
(2009).
B. Deputy Singleton’s Inventory Search Was Conducted in Accordance with
Reasonable Standardized Procedure
{¶ 19} To decide whether Deputy Singleton’s inventory search of the truck
was conducted “in accordance with reasonable standardized procedure[] or
established routine,” Hathman at paragraph one of the syllabus, we must first
determine whether the evidence was sufficient to establish that a standardized
procedure or routine existed regarding the inventory search.
{¶ 20} As an initial matter, we conclude that the state was not required to
submit the inventory-search policy in writing as evidence to establish the existence
of such a policy. Numerous state and federal courts across the country have agreed
with this conclusion. See, e.g., People v. Walker, 20 N.Y.3d 122, 127,
980 N.E.2d
937 (2012); People v. Gipson,
203 Ill.2d 298, 306,
786 N.E.2d 540 (2003); State v.
Huisman,
544 N.W.2d 433, 437 (Iowa 1996); United States v. Tackett,
486 F.3d
8
January Term, 2023
230, 233 (6th Cir.2007); United States v. Agofsky, 20 F.3d 866, 872-873 (8th
Cir.1994); United States v. Frank,
864 F.2d 992, 1002 (3d Cir.1988). When other
evidence such as officer testimony is available, the reasonableness of an inventory
search does not hinge on whether a written policy was submitted as evidence. We
therefore hold that the government’s failure to submit a written inventory-search
policy as evidence does not per se mean that the challenged inventory search was
unreasonable. However, prosecutors should be mindful that submitting a written
policy as evidence would certainly assist judges in determining the reasonableness
of an inventory search.
{¶ 21} The issue then becomes whether Deputy Singleton’s testimony and
body-camera footage was sufficient to establish the existence of an inventory-search policy at the sheriff’s office. When discussing the search at the suppression
hearing, Deputy Singleton stated:
Due to the stop and [Toran’s] status, what our policy is, an
inventory search of that vehicle was conducted, any damage,
anything. I have been doing this occupation, road patrol, just short
of 20 years. I am systematic about how we do the tows because, if
there is damage all over the car, valuables can be in the car, and
officers need to be accountable.
{¶ 22} This testimony was sufficient to establish the existence of an
inventory-search policy at the sheriff’s office. Contrary to Toran’s assertion, the
issue before this court is not whether Deputy Singleton’s decision to impound the
truck was reasonable. Indeed, that issue is not what the proposition of law before
this court is predicated on, and regardless, it “was not raised in any way in the
[c]ourt of [a]ppeals and was not considered or decided by that court,” State v. Price,
60 Ohio St.2d 136,
398 N.E.2d 772 (1979), paragraph two of the syllabus. The
9
SUPREME COURT OF OHIO
issue here is whether Deputy Singleton established that the Hamilton County
Sheriff’s Office has an inventory-search policy, explained when that policy must
be followed, and showed whether it was followed in this case.
{¶ 23} Deputy Singleton explained the reasons for the policy—to require
surveying for damage to property and keeping track of valuables found in the
vehicle. These are some of the community-caretaking functions that inventory-search policies are designed to facilitate. See Bertine, 479 U.S. at 372,
107 S.Ct.
738,
93 L.Ed.2d 739. Deputy Singleton’s safekeeping of Toran’s medication found
in the search is a prime example of these functions. And the fact that a handgun
was discovered during the search further supports the notion that inventory searches
guard law enforcement from danger. See
id.
{¶ 24} Further, Deputy Singleton provided testimony regarding the
circumstances in which inventory searches are appropriate in Hamilton County—
namely, when it is discovered during a vehicle stop that the driver has a suspended
license, which requires the vehicle to be towed and impounded. Because Toran had
been driving under a suspended license, Deputy Singleton ordered the truck to be
towed and impounded and performed an inventory search. In doing so, Deputy
Singleton acted in accordance with the policy of the sheriff’s office.
{¶ 25} Therefore, Deputy Singleton’s testimony was sufficient to establish
both the existence of the Hamilton County Sheriff’s Office’s inventory-search
policy and that he acted in accordance with the policy.
C. Deputy Singleton’s Inventory Search Was Conducted in Good Faith
{¶ 26} We are also convinced that Deputy Singleton acted in good faith in
conducting the inventory search and that the search was not conducted for the sole
purpose of investigation. See Bertine, 479 U.S. at 372, 374,
107 S.Ct. 738,
93
L.Ed.2d 739. As discussed above, the sheriff’s office had a policy to perform
inventory searches under the circumstances presented. Deputy Singleton’s
discovering that Toran was driving under a suspended license justified his decision
10
January Term, 2023
to have the truck towed. Following that decision, and pursuant to the sheriff’s
office’s policy, Deputy Singleton performed an inventory search. Even after he
found the gun and arrested Toran, he continued the search, which allowed him to
find and inventory Toran’s medication before the truck was impounded, showing
adherence to the policy’s purpose. In addition, his testimony indicated that he had
nearly 20 years of experience and was systematic about the impoundment process.
His knowledge, experience, and actual use of a systematic process showed that he
was well trained in the area of vehicle searches and that the inventory search was
not conducted for the sole purpose of investigation. Therefore, he acted in good
faith.
{¶ 27} Deputy Singleton’s testimony established the existence of an
inventory-search policy at the sheriff’s office. Both the testimony and body-camera
footage proved that he acted in accordance with that policy and in good faith. For
those reasons, we hold that his warrantless inventory search of the truck was
reasonable, and therefore lawful, under the Fourth Amendment.
IV. Conclusion
{¶ 28} “The Framers of the Fourth Amendment have given us only the
general standard of ‘unreasonableness’ as a guide in determining whether searches
and seizures meet the standard of that Amendment in those cases where a warrant
is not required.” Cady, 413 U.S. at 448,
93 S.Ct. 2523,
37 L.Ed.2d 706. Since
Cady was decided, courts have striven to ascertain under what circumstances a
warrantless inventory search is reasonable. Caselaw paves our path in such
determinations, requiring us to ask whether the law-enforcement agency had
standardized inventory-search procedures, whether the inventory search was
conducted in accordance with these standardized procedures, and whether, if the
officer complied with the procedures, he did so in good faith. See Hathman,
65
Ohio St.3d at 407-408,
604 N.E.2d 743.
11
SUPREME COURT OF OHIO
{¶ 29} While prosecutors facing inventory-search challenges might be wise
to introduce written inventory-search policies into evidence and to routinely ask
complete questions regarding the procedures, a written policy is not a constitutional
requirement to establish the reasonableness of an inventory search. Testimony that
establishes the existence of an inventory-search policy, explains when the policy is
to be followed, and explains whether the policy was followed, combined with body-camera footage documenting the inventory search, may be sufficient evidence to
support a finding that a warrantless inventory search was reasonable, and therefore
lawful, under the Fourth Amendment. And here, we conclude that Deputy
Singleton’s inventory search was lawful.
{¶ 30} Therefore, we reverse the judgment of the First District Court of
Appeals and reinstate Toran’s convictions.
Judgment reversed
and convictions reinstated.
DEWINE, DONNELLY, and LEWIS, JJ., concur.
GALLAGHER, J., concurs, with an opinion.
STEWART, J., dissents, with an opinion joined by BRUNNER, J.
SEAN C. GALLAGHER, J., of the Eighth District Court of Appeals, sitting for
FISCHER, J.
RONALD C. LEWIS, J., of the Second District Court of Appeals, sitting for
DETERS, J.
__________________
GALLAGHER, J., concurring.
{¶ 31} I fully concur in the majority opinion, but I write separately to
emphasize that no reviewing court could have addressed the question whether the
warrantless inventory search of the vehicle that appellee, Jamie Toran, had been
driving was unconstitutional under the Fourth Amendment to the United States
Constitution because the impoundment of the vehicle was itself unlawful based on
12
January Term, 2023
the state’s failure to enter the Hamilton County Sheriff’s Office’s policy on
impoundment into the trial-court record. This question implicates broader
procedural concerns. The record contains scant evidence of any departmental
impoundment policy, because Toran failed to challenge the policy as a basis to
suppress evidence either in his motion to suppress or at the hearing on that motion.
Under Crim.R. 12(H) and 47, he waived any such argument pertaining to that
policy at the trial-court level. See United States v. Concepcion-Guliam, 62 F.4th
26, 31 (1st Cir.2023) (defendant’s Fourth Amendment claims were waived and
could not be reasserted on appeal); see also United States v. Pierre,
486 Fed.Appx.
59, 66 (11th Cir.2012).
{¶ 32} The argument portion of Toran’s motion to suppress was limited to
two paragraphs, the first of which generically cited the Ohio Constitution and the
Fourth and Fourteenth Amendments to the United States Constitution. The second
paragraph presented a boilerplate argument that the stop of the vehicle must have
been pretextual because, in Toran’s view, he had “properly displayed th[e]
temporary plate.” No legal authority in support of that proposition was ever
presented to the trial court. During his opening statement at the suppression
hearing, defense counsel reiterated Toran’s position: “This is a warrantless search.
[The state] has to prove the search was lawful. There was no search warrant to
search [Toran’s] vehicle. There is no exception to the search warrant requirement
that would allow the officer to lawfully search the vehicle … Toran was driving.”
(Emphasis added.) The state thereafter focused on proving that the inventory-search exception to the warrant requirement applied, based on Toran’s framing of
the Fourth Amendment issue. This should have ended any potential for appellate
review on the impoundment-policy issue. See State v. Wintermeyer, 158 Ohio St.3d
513,
2019-Ohio-5156,
145 N.E.3d 278, ¶ 8.
{¶ 33} Despite the limited framing of the issues within the motion to
suppress, the First District Court of Appeals reviewed the reasonableness of the
13
SUPREME COURT OF OHIO
inventory search conducted by the deputy sheriff under constitutional standards.
The First District never addressed the impoundment-policy issue. That issue was
articulated for the first time in Toran’s appellate briefing. The lawfulness of the
decision to impound the vehicle, however, was not an issue that could have been
raised for the first time by Toran in his direct appeal to the First District, much less
as a basis to affirm the appellate court’s decision.
{¶ 34} Toran’s belated argument pertaining to the legality of the deputy’s
decision to impound the vehicle, a decision that then triggered the need for the
inventory search, represents a broader trend of parties presenting new arguments
during the appellate process by looking first to any federal constitutional question
before considering Ohio’s procedural rules, thus eroding the traditional rule that an
issue should not be decided on constitutional grounds unless doing so is necessary.
See State v. Talty, 103 Ohio St.3d 177,
2004-Ohio-4888,
814 N.E.2d 1201, ¶ 9 (“It
is well settled that this court will not reach constitutional issues unless absolutely
necessary”), citing In re Miller,
63 Ohio St.3d 99, 110,
585 N.E.2d 396 (1992), and
Hall China Co. v. Pub. Util. Comm.,
50 Ohio St.2d 206, 210,
364 N.E.2d 852
(1977); see also State v. Pugh,
43 Ohio St. 98, 122,
1 N.E. 439 (1885). Not all
challenges implicating a constitutional question need be analyzed or discussed
through that lens. The answer to the question regarding the lack of evidence
concerning the impoundment policy is simple: Toran failed to raise the issue in the
trial court with the specificity and citations to authority required by Crim.R. 12(H)
and 47. Under Crim.R. 12(H), Toran waived any challenges to the legality of the
deputy’s decision to impound the vehicle he had been driving, and he is not
permitted to cite any deficiencies in the state’s presentation of evidence, which
depended on that waiver, for the first time on appeal. See, e.g., State v. Mock, 11th
Dist. Lake No. 2012-L-066,
2013-Ohio-874, ¶ 9 (because the defendant failed to
advance arguments in a suppression motion filed in the trial court, the state lacked
notice of the arguments and an opportunity to present its case on the issues
14
January Term, 2023
pertaining to the arguments; the issues were waived and the trial court could not
make any findings of fact on the waived issues, because there was no evidence
introduced on them at the suppression hearing); State v. Walker, 2017-Ohio-9255,
103 N.E.3d 325, ¶ 28-29 (1st Dist.) (following Mock); see also State v. Harrison,
166 Ohio St.3d 479,
2021-Ohio-4465,
187 N.E.3d 510, ¶ 16 (lead opinion) (failure
to raise an argument in the trial court precluded the opposition from developing a
record that could be reviewed on appeal).
{¶ 35} Accepting Toran’s argument here would send the wrong message to
litigants and courts in Ohio that courts of review may find error and redefine the
scope of black-letter law concerning decisions never made by the trial courts and
on evidentiary foundations never timely tested. Permitting parties to partake in this
form of gamesmanship would serve no legitimate purpose. See Wintermeyer, 158
Ohio St.3d 513,
2019-Ohio-5156,
145 N.E.3d 278, at ¶ 24. Ohio courts would be
faced with the prospect that regardless of the argument actually presented by a
defendant at the trial-court level, the state would be required to anticipate and
disprove every claim that could have been asserted by the defendant in order to
preserve the defendant’s conviction as the issues morph throughout the appellate
process. And Ohio law does not require this form of preemptive advocacy. Id. at
¶ 19, quoting State v. Peagler,
76 Ohio St.3d 496, 500,
668 N.E.2d 489 (1996)
(“when a defendant makes stipulations or narrows the issues to be decided at a
suppression hearing, the prosecution need not ‘prove the validity of every aspect of
the search’ ”). Our adversarial system is designed around the premise that the
parties “ ‘are responsible for advancing the facts and arguments entitling them to
relief.’ ” Greenlaw v. United States,
554 U.S. 237, 244,
128 S.Ct. 2559,
171
L.Ed.2d 399 (2008), quoting Castro v. United States,
540 U.S. 375, 386,
124
S.Ct. 786,
157 L.Ed.2d 778 (2003) (Scalia, J., concurring in part and concurring in
the judgment). This system does not depend on an opposing party’s prediction and
preemption of potential arguments that might be belatedly raised. The Rules of
15
SUPREME COURT OF OHIO
Criminal Procedure precluded Toran from challenging the legality of the deputy’s
decision to impound the vehicle in his direct appeal, and as a result, that cannot be
an independent basis to affirm the appellate court’s decision.
{¶ 36} Crim.R. 47 unambiguously requires any pretrial motion to “state
with particularity the grounds upon which it is made” and the relief sought and to
be supported by “a memorandum containing citations of authority” and, if
applicable, an affidavit. “By requiring the defendant to state with particularity the
legal and factual issues to be resolved, the prosecutor and court are placed on notice
of those issues to be heard and decided by the court and, by omission, those issues
which are otherwise being waived.” State v. Shindler, 70 Ohio St.3d 54, 58,
636
N.E.2d 319 (1994) (collecting cases); State v. F.O.E. Aerie 2295, Port Clinton,
38
Ohio St.3d 53, 54-55,
526 N.E.2d 66 (1988) (failure to comply with Crim.R. 47
results in waiver of the argument). As a result, “before the state is put to [its] burden
[on a suppression issue], the defendant must assert the grounds upon which he
intends to challenge the validity of the search.” Wintermeyer at ¶ 18, citing Xenia
v. Wallace,
37 Ohio St.3d 216,
524 N.E.2d 889 (1988), and State v. Codeluppi,
139
Ohio St.3d 165,
2014-Ohio-1574,
10 N.E.3d 691, ¶ 10. Toran made no attempt to
provide any specificity within his suppression motion. The burden never shifted to
the state to introduce a foundation for the invocation of the Hamilton County
Sheriff's Office’s impoundment policy.
{¶ 37} Arguably, the state abandoned any claim that Toran waived the
argument by not advancing a waiver argument in his appeal, see, e.g., State v.
Martin, 151 Ohio St.3d 470,
2017-Ohio-7556,
90 N.E.3d 857, ¶ 77, but the state
was never provided with the opportunity to advance a waiver argument with respect
to the impoundment-policy questions. The trial court agreed with the state’s
arguments, and Toran did not raise the issue of any lack of evidence pertaining to
the impoundment policy until his appeal to the First District. Because the First
District implicitly rejected any argument pertaining to the legality of the
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January Term, 2023
impoundment and presumed the validity of the decision to impound the vehicle as
the underlying basis to reach the inventory-search question, the state bore no burden
to address Toran’s waiver of the issue.
{¶ 38} Notwithstanding Toran’s waiver, even if the procedural rules are
discarded in favor of addressing the merits of his argument, the record is sufficient
to demonstrate the existence of an impoundment policy at the sheriff’s office and
the particular criteria underlying the deputy’s decision to impound the vehicle.
{¶ 39} According to the transcript of the suppression hearing, Hamilton
County Sheriff’s Deputy Kevin Singleton articulated the basis of his decision for
having the vehicle towed: he was following procedures under “the policy” applying
to a situation in which the sole occupant, who was not under arrest, could not be
left with the vehicle following the issuance of a citation because he did not have a
valid driver’s license. As Deputy Singleton clarified on defense counsel’s
prompting, before the inventory search was conducted, “there was no arrest.”
Deputy Singleton then provided the criteria justifying his decision to impound the
vehicle, which necessitated the inventory search: “When someone hasn’t had a
driver’s license for three years with multiple suspensions and the record indicated
he had been pulled over by another agency, pulled over in the same vehicle, that
vehicle is going to be towed due to that status.” He then said, “I have a procedure
that I follow. It is in the policy, and I am going to follow my policy.” (Emphasis
added.) Toran’s counsel conceded the existence of that policy: “I understand you
have a policy.” And counsel then attempted to explore the outer limits of that policy
in the remainder of his cross-examination of the deputy, suggesting that an officer
may release a vehicle to another person who is present when the traffic stop ends.
{¶ 40} In other words, when the deputy made the decision to impound the
vehicle, Toran was not under arrest. He was free to leave at that point, but because
he was not licensed to drive and had been the only occupant of the vehicle, the
vehicle was going to be impounded to prevent him from operating it after the
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deputies departed the scene. Although that decision and the criteria under which it
was made may be challenged based on the totality of the evidence, Toran never
questioned the existence of a policy in the trial court, and the evidence was
determined by the trial court to be sufficient to justify the decision to implicate the
inventory-search policy. The questions surrounding the decision to impound the
vehicle turn on Toran’s failure to adhere to the Rules of Criminal Procedure. See
Crim.R. 12(H) and 47. They do not require analysis under the Ohio or federal
Constitutions.
{¶ 41} Therein lies the danger of permitting parties to shirk procedural rules
in favor of raising new constitutional arguments for the first time on appeal. The
scant evidence of the departmental impoundment policy was a direct result of
Toran’s failure to state with specificity the basis of his motion to suppress. He then
failed to timely challenge the legality of the impoundment, and his counsel elicited
statements from the deputy justifying the deputy’s decision to impound the vehicle
based on the criteria under the policy that a vehicle may not be left with the sole
occupant of the vehicle when he or she has no valid driver’s license.
{¶ 42} Courts of review should not resort to broad discussions of
constitutional requirements to resolve cases in which the parties have failed to
comply with the procedural rules at the most basic levels. If we were to affirm the
judgment of the First District relying on the lack of a record regarding the
impoundment policy, this court would be sending a message that defendants no
longer need to abide by the Rules of Criminal Procedure governing motions to
suppress and that constitutional questions may be resolved in the defendant’s favor
despite his or her failure to trigger the state’s requirement to build a record in the
trial court. With this in mind, I concur in the majority opinion and join this court’s
judgment.
________________
18
January Term, 2023
STEWART, J., dissenting.
{¶ 43} This case involves questions about whether the impoundment and
search of a vehicle were legal. The law in this area is straightforward:
(1) The impoundment must be legal in order for the inventory search to be legal,
(2) both the impoundment and the inventory search must follow established policy
and procedure, and
(3) the burden of proof is on the state to show that the impoundment and the search
were valid.
{¶ 44} Here, appellant, the state of Ohio, failed to carry that burden. The
state failed to show that (1) the Hamilton County Sheriff’s Office had a policy in
place for determining when and how to impound and then conduct an inventory
search of a vehicle and (2) whether that policy was followed here. The majority
opinion glosses over many conflicting facts and ignores others to create an
expansive conception of an inventory search that transforms the search from a
narrow exception to the warrant requirement under the Fourth Amendment to the
United States Constitution into a discretionary investigatory tool with no
boundaries or standards for its use. In sum, the majority concludes that an arresting
officer’s testimony that he followed “our policy” (assuming “our policy” means the
policy of his law-enforcement agency)—and that testimony alone—is legally
sufficient to establish that the officer’s agency had a policy on the impounding and
searching of vehicles and that the officer followed that policy. This is not, however,
what the law requires.
{¶ 45} In reaching its conclusion, the majority not only ignores the burden
of proof placed on the state to establish the applicability of an exception to the
Fourth Amendment’s warrant requirement, but it also bypasses any analysis of the
arresting deputy sheriff’s decision to impound the vehicle in the first place.
Because the majority erodes the protections of the warrant requirement in favor of
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SUPREME COURT OF OHIO
an expansive conception of the inventory-search exception that swallows the
general rule, I dissent.
{¶ 46} Warrantless searches and seizures “are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and welldelineated exceptions.” Katz v. United States, 389 U.S. 347, 357,
88 S.Ct. 507,
19
L.Ed.2d 576 (1967); see also State v. Roberts,
110 Ohio St.3d 71,
2006-Ohio-3665,
850 N.E.2d 1168, ¶ 98. And those “exceptions to the warrant requirement are to be
narrowly construed.” New York v. Belton,
453 U.S. 454, 464,
101 S.Ct. 2860,
69
L.Ed.2d 768 (1981) (Brennan, J., dissenting) (collecting cases). Consequently, the
state has the burden of demonstrating that a challenged warrantless search falls
within one of the narrow exceptions to the warrant requirement of the Fourth
Amendment. United States v. Jeffers,
342 U.S. 48, 51,
72 S.Ct. 93,
96 L.Ed. 59
(1951), citing McDonald v. United States,
335 U.S. 451, 456,
69 S.Ct. 191,
93 L.Ed.
153 (1948).1
{¶ 47} The warrantless search at issue in this case is an inventory search of
the truck that appellee, Jamie Toran, was driving when Hamilton County Sheriff’s
Deputy Kevin Singleton pulled him over. An inventory search is “the search of
property sc and detained, in order to ensure that it is harmless, to secure valuable
items (such as might be kept in a towed car), and to protect against false claims of
loss or damage.” (Emphasis added.) Whren v. United States, 517 U.S. 806, 811,
116 S.Ct. 1769,
135 L.Ed.2d 89 (1996), fn. 1. Before a court reaches the issue of
the legality of an inventory search, it must determine that the impoundment of the
vehicle prompting the inventory search was legal. See United States v. Williams,
936 F.2d 1243, 1248 (11th Cir.1991) (“If a search is to be upheld under the
1. Article I, Section 14 of the Ohio Constitution contains language that is nearly identical to that of
the Fourth Amendment, “and we have interpreted it as affording at least the same protection as the
Fourth Amendment.” State v. Leak,
145 Ohio St.3d 165,
2016-Ohio-154,
47 N.E.3d 821, ¶ 13,
citing State v. Hoffman,
141 Ohio St.3d 428,
2014-Ohio-4795,
25 N.E.3d 993, ¶ 11.
20
January Term, 2023
inventory search doctrine, … the police must first have the authority to impound
the vehicle and must then follow the procedures outlined in the policy”); State v.
Leak, 145 Ohio St.3d 165,
2016-Ohio-154,
47 N.E.3d 821, ¶ 29 (“testimony about
the police procedure for conducting the inventory is insufficient to establish the
reasonableness of the search under the Fourth Amendment if the impoundment of
the vehicle is not itself lawful”). Here, the state asserts that “[b]ecause the
impoundment of Toran’s vehicle was proper, the search was proper.” But the
state’s assertion that impounding the vehicle was lawful does not make it so.
The state did not show that the decision to impound the vehicle was lawful
{¶ 48} Following the hearing on Toran’s motion to suppress the evidence
of the handgun found in his truck, the trial court stated from the bench that the
impoundment of the vehicle was proper because it could not be released to Toran
since he did not have a valid driver’s license. Toran challenged the legality of the
impoundment in his direct appeal to the First District Court of Appeals. Although
the court of appeals did not reach the underlying issue whether the decision to
impound the vehicle was lawful, it nonetheless reached the correct conclusion that
Deputy Singleton’s search of the vehicle was not justified under the inventory-search exception because the state did not meet its burden of demonstrating that the
search was in accordance with standardized procedures of the sheriff’s department.
See 2022-Ohio-2796, ¶ 30-31.
{¶ 49} The majority avoids analyzing the deputy’s decision to impound the
vehicle. It states as its grounds for doing so that Toran forfeited the issue by not
raising it in the court of appeals and that it “is not what the proposition of law before
this court is predicated on.” Majority opinion, ¶ 22. The concurrence also decries
the analysis regarding the impoundment on the ground that Toran waived the issue.
The majority and the concurrence are wrong on those points. Toran did raise this
issue in both the trial court and the court of appeals. Although he combined his
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arguments challenging Deputy Singleton’s decision to impound the vehicle and the
propriety of the concomitant inventory search, he argued that Deputy Singleton was
not justified in impounding the vehicle. And while the proposition of law we
accepted for review is written on the flawed assumption that Deputy Singleton’s
decision to impound the vehicle was lawful, the state argues in its brief that the
impoundment was lawful under R.C. 4513.61.2 Despite the concurrence’s apparent
frustration with what one might deem ineffective assistance of counsel, there is no
evidence of gamesmanship in the record before us, as the concurring opinion
suggests. In each of the courts below, Toran raised issues concerning the vehicle
stop, the impoundment, and the search. His theory of the Fourth Amendment
violation has not changed: the stop was pretextual, and the impoundment and
therefore any ensuing search were unlawful. Toran also correctly notes that in order
to determine that an inventory search was permissible, the impoundment of the
vehicle must have been lawful. The state bears the burden to demonstrate that its
challenged conduct falls within the inventory-search exception to the Fourth
Amendment’s warrant requirement. And it is the act of impounding the vehicle
that gives rise to the need for, and the justification of, an inventory search. Thus,
the threshold inquiry when determining the lawfulness of an inventory search is
whether the impoundment of the vehicle was proper. See Leak at ¶ 29; see also
United States v. Snoddy,
976 F.3d 630, 634 (6th Cir.2020) (“A vehicle is lawfully
seized and, thus, subject to an inventory search if it is lawfully impounded”); United
States v. Duguay,
93 F.3d 346, 351 (7th Cir.1996) (“Both the decision to take the
car into custody and the concomitant inventory search must meet the strictures of
the Fourth Amendment”). If the evidence of such an impoundment policy is
“scant,” concurring opinion, ¶ 31, as the concurring opinion suggests, then the
blame for any deficiency in the record lies with the state.
2. As discussed below, the state’s reliance on this statute is misplaced.
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January Term, 2023
{¶ 50} It is well established that in the interests of public safety and as part
of their community-caretaking functions, law-enforcement officers have the
authority to seize vehicles and remove them from the streets. South Dakota v.
Opperman, 428 U.S. 364, 368-369,
49 L.Ed.2d 1000,
96 S.Ct. 3092 (1976).
Officers may impound a vehicle if the decision to do so is based on standardized
criteria and is not solely a basis to search for evidence of other criminal activity.
Colorado v. Bertine,
479 U.S. 367, 375,
107 S.Ct. 738,
93 L.Ed.2d 739 (1987);
Duguay at 351, quoting Florida v. Wells,
495 U.S. 1, 4,
110 S.Ct. 1632,
109
L.Ed.2d 1 (1990) (“ ‘[S]tandardized criteria or established routine must regulate’
inventory searches. … Among those criteria which must be standardized are the
circumstances in which a car may be impounded’ ” [brackets added in Duguay]);
United States v. Young,
751 Fed.Appx. 381, 388, (4th Cir.2018), fn. 3 (“a police
officer’s initial decision to tow and impound a vehicle—the necessary predicate for
an inventory search—also must be governed by standardized criteria”).
{¶ 51} Courts have recognized that the decision to impound a vehicle is
valid when the decision is in line with a departmental policy or a statute and is
based on the totality of the circumstances rather than being based solely on the
officer’s discretion. Compare State v. Calvin, 3d Dist. Hancock No. 5-15-17, 2015-
Ohio-4801, ¶ 23 (decision to impound was lawful when it was pursuant to a written
policy and took into account that the vehicle was located on a busy highway at
approximately 1:20 a.m. and it was unclear whether or when another driver could
retrieve the vehicle) with State v. Myrick, 2d Dist. Montgomery No. 21287, 2006-
Ohio-580, ¶ 23 (decision to impound was unlawful when the officer failed to
produce or articulate any impoundment policy and testified only that impoundment
decision was solely in an officer’s discretion). In Myrick, the defendant was
arrested for trespassing at a nightclub, and at the time of the arrest, his car was
legally parked in the common parking lot where the nightclub and other businesses
were located. Id. at ¶ 2-3, 26. Upon being placed in the arresting officer’s police
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SUPREME COURT OF OHIO
cruiser, Myrick asked an acquaintance who was nearby to call Myrick’s wife and
to drive his car home. Id. at ¶ 3. The officer refused to allow Myrick’s acquaintance
to take possession of the car and impounded and searched the car, finding a
handgun. Id. at ¶ 3-4.
{¶ 52} Similarly, in this case, the state failed to produce any evidence of a
departmental impoundment policy—written or otherwise—and Deputy Singleton
failed to articulate the criteria for impoundment under any such policy. Instead, the
deputy spoke of a general, sweeping policy: “There is not going to be a time in my
entire career [that] you are going to find that I let a vehicle go. That’s not the policy
of the Department and not my policy as an officer.” Assuming arguendo that such
a departmental policy actually exists, it is overbroad. Deputy Singleton’s testimony
in no way indicates what criteria or factors he or other law-enforcement officers in
his department are supposed to consider when deciding whether to impound a
vehicle, such as the location and safety of the vehicle, whether another driver is
available to drive the vehicle, or other factual circumstances. In fact, the deputy
testified that he would not release the vehicle “regardless of who showed up to get
[it], including the registered owner. That was not going to change [his] conduct
and [his] procedure.” This purported policy leaves the decision whether to impound
a vehicle completely within the discretion of an individual officer and does not take
into account the unique factual circumstances of each vehicle stop, let alone what
the law actually requires. This runs afoul of the Fourth Amendment.
{¶ 53} The facts in the record before us cannot sustain any conclusion other
than that the impoundment of the vehicle was unlawful. The vehicle was legally
parked on a residential street, in line with other vehicles, so there was no concern
that the vehicle was impeding traffic or was located on a busy highway. Toran’s
driving with a suspended license was not an arrestable offense. Upon being
stopped, Toran immediately informed Deputy Singleton that Toran’s mother was
the owner of the vehicle and lived nearby. Toran even attempted to call his mother
24
January Term, 2023
to have her retrieve the vehicle, but Deputy Singleton said she did not need to come,
because he was only issuing a ticket. However, since Toran had already informed
Deputy Singleton that he did not have a license, the deputy knew Toran was not
authorized to drive the vehicle, and there are no facts demonstrating why Toran’s
mother could not retrieve the vehicle. Toran’s mother appeared at the scene
anyway, arriving shortly after the vehicle had been searched and Toran arrested for
having the gun but before Deputy Singleton had called for a tow truck or started
the process of physically removing the vehicle. She offered Deputy Singleton
evidence of her valid registration and proof of insurance, which he declined to
review. In short, there was no lawful basis for Deputy Singleton to impound the
vehicle, and therefore there was no lawful reason for him to search the vehicle.
{¶ 54} The record shows that Deputy Singleton also made conflicting
statements about when and why he impounded the vehicle. He testified that he
made the decision to impound the vehicle based on Toran’s “driving status” and
that he would never have released the vehicle to its owner. But his body-camera
footage shows that he informed Toran’s mother that the car was being impounded
because it was connected to a felony arrest. He made a similar statement to Toran,
telling him that the vehicle was being towed because of Toran’s “driving status.”
But Deputy Singleton also told Toran that if he were not making an arrest, he could
release the vehicle to the vehicle’s owner “but not when [he] t[ook] a gun out of it.”
{¶ 55} The problem with this sequence of events is that in order for the
search to have been lawful, the deputy had to have made the decision to impound
the vehicle, as authorized by statute or departmental policy, before he searched it
and found the gun that gave rise to the felony charge. He was not permitted under
the Fourth Amendment to unlawfully search the vehicle and then use any evidence
he found during the search as a basis to impound the vehicle. The majority opines
that the impoundment and the search were legal based on the combination of the
deputy’s testimony and his body-camera footage. But the exchange detailed above
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SUPREME COURT OF OHIO
conflicts with Deputy Singleton’s testimony that he impounded the vehicle based
on Toran’s suspended license and completely undermines the deputy’s decision to
impound, let alone search, the vehicle.
{¶ 56} In an attempt to bolster Deputy Singleton’s decision to impound the
vehicle, the state contends that R.C. 4513.61 applies to this case. This argument is
a nonstarter.
{¶ 57} R.C. 4513.61(A)(1) through (2) states:
The sheriff of a county … may order into storage any
motor vehicle, including an abandoned junk motor vehicle as
defined in [R.C. 4513.63], that … [h]as come into the possession
of the sheriff … as a result of the performance of the sheriff’s
… duties … or … [h]as been left on a public street or other
property open to the public for purposes of vehicular travel, or upon
or within the right-of-way of any road or highway, for forty-eight
hours or longer without notification to the sheriff … of the
reasons for leaving the motor vehicle in such place. However, when
such a motor vehicle constitutes an obstruction to traffic it may be
ordered into storage immediately ….
{¶ 58} Under any view of the facts here, this statute does not apply. The
vehicle Toran had been driving was not in Deputy Singleton’s possession as a result
of the performance of his duties—as discussed above, Toran’s mother owned the
vehicle, could legally operate it, and was at the scene before it was impounded and
the deputy provided conflicting reasons as to why it was being impounded. See
Leak, 145 Ohio St.3d 165,
2016-Ohio-154,
47 N.E.3d 821, at ¶ 26 (finding no
reason to impound a vehicle when the driver had been present and was duly licensed
and able to drive the vehicle and there was no reason to believe the vehicle would
26
January Term, 2023
be left unattended). And it is undisputed that the vehicle was not left on the street
for 48 hours or longer. Further, the record shows—and the state does not dispute—
that the vehicle was not obstructing traffic; it was parked on the side of the road
like other vehicles. Deputy Singleton offered no statute, ordinance, or policy of the
sheriff’s department evincing a community-caretaking rationale for impounding
and subsequently searching the vehicle. Compare Blue Ash v. Kavanagh, 113 Ohio
St.3d 67,
2007-Ohio-1103,
862 N.E.2d 810, ¶ 12-16 (upholding the impoundment
of a vehicle when the defendant could not have lawfully driven the vehicle away,
the vehicle could not safely have been allowed to remain on Interstate 71, and the
impounding officer had authority to have the vehicle towed pursuant to the Revised
Code and a city ordinance).
{¶ 59} Additionally, there was no basis for the impoundment of the vehicle
in the local law. Toran was stopped (at approximately 800 Adams Street in
Hamilton County) in the Village of Lincoln Heights. See State v. Marshall, 2022-
Ohio-3795, 199 N.E.3d 665, ¶ 16 (noting that a court may take judicial notice of
geographic facts not subject to reasonable dispute). Lincoln Heights has passed
ordinances authorizing police to remove vehicles that are illegally parked or are
obstructing traffic, and Lincoln Heights allows for a court to order the
immobilization and impoundment of a vehicle involved in a driving-under-a-
suspended-license offense. See Lincoln Heights Code of Ordinances 71.18(A),
76.03, and 76.09(B). Lincoln Heights does not, however, have an ordinance
specifically permitting police impoundment of a vehicle based on the driver’s status
of having a suspended license. Therefore, there is no local ordinance or state statute
that authorized the impoundment here.
{¶ 60} Because the state has not shown that the impoundment of the vehicle
was lawful in this case, it cannot show that the deputy’s search of the vehicle fell
within the inventory-search exception to the Fourth Amendment’s warrant
requirement. See Leak at ¶ 29. Therefore, the deputy’s search of the vehicle
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SUPREME COURT OF OHIO
violated the Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution.
The state did not show that the search was conducted in accordance with a valid
inventory-search policy
{¶ 61} Even if Deputy Singleton’s decision to impound the vehicle was
valid, an analysis similar to that for the impoundment applies to the inventory
search—namely, was the inventory search conducted pursuant to a valid policy (or
statute), and was that policy actually followed? See State v. Mesa, 87 Ohio St.3d
105, 110-111,
717 N.E.2d 329 (1999) (police officers followed a detailed written
policy that specified where officers could and could not search and when an
inventory report was required). Similarly, the state has the burden of demonstrating
the lawfulness of the inventory search. See State v. Hathman,
65 Ohio St.3d 403,
408,
604 N.E.2d 743 (1992) (concluding that the opening of a closed container
during an inventory search was unlawful, because the state did not meet its burden
of establishing the existence of a standardized policy or practice governing the
opening of such containers).
{¶ 62} When discussing the impoundment and the inventory search at the
suppression hearing, Deputy Singleton stated:
Due to the stop and the status [of Toran’s suspended license],
what our policy is, an inventory search of that vehicle was
conducted, any damage, anything. I have been doing this
occupation, road patrol, just short of 20 years. I am systematic about
how we do the tows because, if there is damage all over the car,
valuables can be in the car, and officers need to be accountable.
{¶ 63} The majority concludes that Deputy Singleton’s testimony “was
sufficient to establish both the existence of the Hamilton County Sheriff’s Office’s
28
January Term, 2023
inventory-search policy and that he acted in accordance with the policy.” Majority
opinion at ¶ 25. But the deputy’s testimony tells us nothing about the substance of
any policy of the Hamilton County Sheriff’s Office, nor does it demonstrate that he
followed any such policy.3 Deputy Singleton testified that he followed a policy in
deciding to impound and search the vehicle. But his testimony does not
demonstrate whose policy he followed, the details or criteria of that policy, and how
his actions complied with the policy. Officer testimony must outline the law-enforcement agency’s standardized inventory-search policy and specifically
describe how the decision to search adhered to the policy. See State v. Smith, 1st
Dist. Hamilton No. C-200352, 2021-Ohio-2654, ¶ 35-40 (upholding trial court’s
determination that an inventory search was unlawful when officer failed to testify
to the details of the policy, such as whether closed containers found in the vehicle
could be opened and searched); State v. Beasley, 1st Dist. Hamilton No. C-180152,
2019-Ohio-3936, ¶ 14 (finding that an inventory search was unlawful when an
officer testified about a general policy that the contents of vehicles searched must
be cataloged to ensure the contents are protected and returned).
{¶ 64} Similarly, the body-camera footage does not prove the existence of
any inventory-search policy at the Hamilton County Sheriff’s Office, nor does it
show that Deputy Singleton followed such a policy. For example, there is no
footage of Deputy Singleton completing an inventory-search form, physically
producing a handbook or written policy for his review, or discussing any such
policy with his partner at the scene. The majority’s reliance on the body-camera
3. Inventory-search policies typically contain a provision requiring the officer conducting the search
to list or catalog the items in the vehicle and any damage to the vehicle—for the very reasons Deputy
Singleton stated in his testimony. See Mesa at 112, fn. 4 (policy required that every item removed
from a vehicle be listed on a report); State v. Beasley, 1st Dist. Hamilton No. C-180152, 2019-Ohio-
3936, ¶ 14 (noting that officer conducting the search did not appear to adhere to generic inventory
policy and failed to write down items removed from the vehicle). The record in this case contains
no evidence of any inventory catalog or list regarding the search of the vehicle.
29
SUPREME COURT OF OHIO
footage makes little sense here, because the footage does not answer any Fourth
Amendment questions in this case.
{¶ 65} Without having offered more, the state has failed to carry its burden
to prove that the inventory search in this case was lawful, and I would affirm the
judgment of the First District based on the facts presented. To be clear, I agree with
the majority that the state is not always required to produce a written policy to
justify the impoundment of a vehicle and a concomitant inventory search (though,
obviously, producing such a policy could alleviate the need for a court to consider
this precise issue and would provide clarity to law-enforcement officers). But the
Fourth Amendment requires more than general, personalized and unsupported
officer testimony that a departmental or agency policy exists and the officer
followed it. See Hathman, 65 Ohio St.3d at 404-405,
604 N.E.2d 743 (finding
officer’s general testimony about departmental policy on how to properly conduct
an inventory search insufficient to support search of closed containers found in
vehicle); Leak,
145 Ohio St.3d 165,
2016-Ohio-154,
47 N.E.3d 821, at ¶ 37. This
is not an onerous burden for the state to carry. So while there may be evidence
showing that the decision to impound the vehicle in this case was made pursuant to
departmental policy, if that evidence exists, it is not in the record. Without knowing
the requirements of the policy the deputy referred to in his testimony, just like the
court of appeals, this court is unable to determine whether he acted pursuant to the
policy.
{¶ 66} The majority skips past the rigorous standards of the Fourth
Amendment to determine that the ends here justify the means. The majority states
that one purpose of the inventory-search exception is to safeguard officers from
danger and that the fact that a gun was found (and thus secured) during the search
means the search was appropriate. The majority is right that one purpose of
inventory searches is to safeguard officers, but the majority also knows better than
to declare that finding the weapon makes the search lawful. That analysis puts the
30
January Term, 2023
cart before the horse and glosses over the serious deficiencies related to the search
in this case, all to the detriment of the safeguards that the Fourth Amendment
enshrines. It is the Fourth Amendment that “gives concrete expression to a right of
the people which ‘is basic to a free society.’ ” Camara v. Mun. Court of San
Francisco, 387 U.S. 523, 528,
87 S.Ct. 1727,
18 L.Ed.2d 930 (1967), quoting Wolf
v. Colorado,
338 U.S. 25, 27,
69 S.Ct. 1359,
93 L.Ed. 1782 (1949). Because the
majority concludes that the inventory search here was lawful, I dissent, and I would
affirm the decision of the First District Court of Appeals.
BRUNNER, J., concurs in the foregoing opinion.
________________
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellant.
Brian A. Smith Law Firm, L.L.C., and Brian A. Smith, for appellee.
Raymond T. Faller, Hamilton County Public Defender, and Christine Y.
Jones, Director, Appellate Division; Cullen Sweeney, Cuyahoga County Public
Defender, and Jonathan Sidney and Michael V. Wilhelm, Assistant Public
Defenders; and Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, urging affirmance or dismissal for amici curiae
Hamilton County Public Defender, Cuyahoga County Public Defender, and Office
of the Ohio Public Defender.
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31
