Opinion
No. 83-916
Decided August 1, 1984.
Criminal law — Search and seizure — Search conducted with "investigatory intent" does not constitute "inventory search" and may not be used as pretext for warrantless evidentiary search, when.
O.Jur 3d Criminal Law §§ 508, 509.
A search which is conducted with an investigatory intent, and which is not conducted in the manner of an inventory search, does not constitute an "inventory search" and may not be used as a pretext to conduct a warrantless evidentiary search.
APPEAL from the Court of Appeals for Summit County.
This in an appeal from a decision of the court of appeals affirming the granting of a motion to suppress evidence by the court of common pleas.
On August 23, 1982, an indictment was returned against defendant-appellee, Claude Caponi, charging him with extortion. A capias was issued but the arrest was not carried out for several days. On the day of the arrest, Friday, August 27, appellee was kept under surveillance for several hours. but was not arrested until shortly after he entered his automobile and turned onto a public roadway. At the scene of the arrest, the police searched appellee's automobile, including the locked trunk, and took several items from the trunk, including a handgun as evidence. The inventory officer acted under the direction of the investigation officers. No search warrant had been issued.
The original indictment was then amended to include charges of having a weapon under disability (R.C. 2923.13[A][4]); carrying a concealed weapon (R.C. 2923.12); and misuse of a firearm in a vehicle (R.C. 2923.16). Appellee filed a motion to suppress, which was granted by the trial court. The court of appeals affirmed.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Lynn C. Slaby, prosecuting attorney, and Mr. Philip D. Bogdanoff, for appellant.
Mr. Lawrence W. Vuillemin, for appellee.
The question to be determined by this appeal is whether the search conducted of appellee's automobile was a valid "inventory search," or rather was an unreasonable and warrantless search in violation of the Fourth Amendment.
In South Dakota v. Opperman (1976), 428 U.S. 364, 373, the United States Supreme Court recognized the constitutional validity of police inventory searches "where the process is aimed at securing or protecting the car and its contents." In State v. Robinson (1979), 58 Ohio St.2d 478 [12 O.O.3d 394], this court, in interpreting the Opperman decision at 480 stated:
"* * * The court concluded that a routine inventory search of a lawfully impounded automobile is not unreasonable within the meaning of the Fourth Amendment when performed pursuant to standard police practice, and when the evidence does not demonstrate that the procedure involved is merely a pretext for an evidentiary search of the impounded automobile. It appears logical to conclude from this that a pretextual search is not an inventory search." (Emphasis added.)
In the case sub judice, the trial court specifically found that the search bore little resemblance to a standard police inventory search, and that the purpose of the search was to gather evidence and not to take an inventory. These findings were supported by substantial evidence and thus will not be disturbed on appeal.
A search which is conducted with an investigatory intent, and which is not conducted in the manner of an inventory search, does not constitute an "inventory search" and may not be used as a pretext to conduct a warrantless evidentiary search. Accordingly, the evidence in question was seized in contravention of the Fourth Amendment and was properly suppressed.
For the foregoing reason, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.