[This opinion has been published in Ohio Official Reports at
69 Ohio St.3d 102.]
THE STATE OF OHIO, APPELLEE, v. LYNDS, APPELLANT.
[Cite as State v. Lynds, 1994-Ohio-82.]
Constitutional law—Search and seizure—Warrantless search of entire automobile
permitted, when.
(No. 93-402—Submitted February 23, 1994—Decided April 27, 1994.)
APPEAL from the Court of Appeals for Knox County, No. 92-CA-01.
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John W. Baker, Knox County Prosecuting Attorney, and Robert J.
McClaren, Assistant Prosecuting Attorney, for appellee.
Christian D. Roland and Alan P. Gustafson, for appellant.
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{¶ 1} The judgment of the court of appeals is affirmed on authority of
Carroll v. United States (1925), 267 U.S. 132,
45 S.Ct. 280,
69 L.Ed. 543, and
United States v. Ross (1982),
456 U.S. 798,
102 S.Ct. 2157,
72 L.Ed.2d 572.
MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
A.W. SWEENEY and WRIGHT, JJ., dissent with opinion.
PFEIFER, J., dissents.
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WRIGHT, J., dissenting.
{¶ 2} The majority's citation of Carroll v. United States (1925), 267 U.S.
132,
45 S.Ct. 280,
69 L.Ed. 543, in its journal entry affirming this case is puzzling
at best. In Carroll, the United States Supreme Court held that a warrantless search
of an automobile may be conducted under circumstances that would not justify the
search of a home or place of business, provided there is probable cause to believe
that the automobile contains items that the authorities are entitled to seize. The
Carroll decision explores the development of the Fourth Amendment from the time
SUPREME COURT OF OHIO
of its adoption and is an interesting and worthwhile discussion of the differences
involved in the criteria necessary for the search of a citizen's home or place of
business and the criteria necessary for the search of the interior of an automobile.
Nowhere in Carroll, however, can one find support for the proposition that a search
without a warrant is anything other than per se unreasonable, absent some
recognized exception to this bulwark of Fourth Amendment jurisprudence. In my
view, the salient facts in this case do not give rise to probable cause under Carroll
and do not fall within any of the well-recognized exceptions to the warrants clause,
particularly the inventory exception espoused by the officers present at the time of
the search.
{¶ 3} The undisputed, sworn testimony of the officer making the initial stop
and the two later searches of the automobile establishes the following facts:
1. Officer Kimberly Lemley approached Lynds's parked automobile,
ordered him out, and searched him based on nothing other than the officer's
subjective suspicion. The officer then secured Lynds in her patrol car to, as she
testified, "complete the investigation."
2. Still based on subjective suspicion, Officer Lemley completed an initial
search of the car's interior which yielded nothing that would justify an arrest of
Lynds. In fact, during oral argument the state conceded that the police officer
conducting the search called the prosecutor for advice and was told not to arrest
Lynds after the initial stop, implying that a search of the interior of the car would
not be justified at that time.
3. Undaunted by this advice, the police officer continued, without either a
warrant or consent from Lynds, to conduct what the officer characterized under
oath as an "inventory search." In the course of this further search the officer took
Lynds's keys and opened the trunk of his automobile and discovered items that later
proved to be stolen goods. When asked under oath why she opened the trunk,
Officer Lemley replied: "We found items that we believed to be stolen and we were
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January Term, 1994
going to have the vehicle impounded. We did an inventory search, also." Yet just
minutes later, on cross-examination, Officer Lemley testified that the reason she
confined Lynds in her police cruiser prior to searching the car was "to complete the
investigation."
4. Officer Lemley testified that Lynds protested against the search from
beginning to end, insisting that his girlfriend be allowed to take the car.
{¶ 4} As stated above, the rule of Carroll is totally out of sync with the facts
of the case before us. Based on the response Officer Lemley received from her
request for legal advice, the officers clearly no longer had "reasonable cause …
for belief that the contents of the automobile offend against the law." Carroll at
158-159,
45 S.Ct. at 287,
69 L.Ed. at 554. Hence, without probable cause, Carroll
v. United States is inapposite to the facts of this case.
{¶ 5} I think it interesting that the search in Carroll took place at a time
when Warren Harding was President of the United States, Earl Warren had not yet
become district attorney, and the genesis of Fourth Amendment jurisprudence with
respect to the states was forty years in the future. See Mapp v. Ohio (1961), 367
U.S. 643,
81 S.Ct. 1684,
6 L.Ed.2d 1081. It was not until fifty years after Carroll
that the court developed the inventory search exception, designed to protect police
officers from suits charging pilfering. See South Dakota v. Opperman (1976),
428
U.S. 364,
96 S.Ct. 3092,
49 L.Ed.2d 1000. In South Dakota v.
Opperman, supra,
the United States Supreme Court upheld the validity of an inventory search of an
automobile after the automobile was towed to the city's impound lot for being
illegally parked overnight in a restricted zone. The search was carried out using a
standard inventory form and pursuant to standard police procedures. Probable
cause was found to be unnecessary. The court emphasized, however, that it deemed
the inventory search reasonable because the "police were indisputably engaged in
a caretaking search of a lawfully impounded automobile … only after the car had
been impounded for multiple parking violations."
Id. at 375,
96 S.Ct. at 3100, 49
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L.Ed.2d at 1009. In addition, the court noted that the "inventory itself was
prompted by the presence in plain view of a number of valuables inside the car"
and that the owner "was not present to make other arrangements for the safekeeping
of his belongings." Id. at 375-376,
96 S.Ct. at 3100,
49 L.Ed.2d at 1009. Based on
this set of criteria, nothing in the facts of the case before us could permit one to
reasonably conclude that what Officer Lemley conducted was a lawful inventory
search.
{¶ 6} In truth, the only real justification for the search of Lynds's locked
trunk is that an enterprising officer discovered stolen goods there as a result of that
search. The danger of adopting such a criterion is evident. Justifying the search on
the basis of what is found "just 'will not do.'" Smith v. Ohio (1990), 494 U.S. 541,
543,
110 S.Ct. 1288, 1290,
108 L.Ed.2d 464, 467, summarily reversing State v.
Smith (1989),
45 Ohio St.3d 255,
544 N.E.2d 239.
{¶ 7} For the reasons aforesaid, I respectfully dissent.
A.W. SWEENEY, J., concurs in the foregoing dissenting opinion.
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