Merit Decision: A Fourth Amendment Workout. State v. Banks-Harvey.

On January 23, 2018, the Supreme Court of Ohio handed down a merit decision in State v. Banks-Harvey, Slip Opinion No. 2018-Ohio-201. Justice O’Neill wrote the lead opinion of the court, joined in full by Justices French and Fischer. Justice Kennedy concurred in judgment only, with a separate opinion.  The four of them agreed that the motion to suppress in this case should have been granted, and the exclusionary rule applied to the evidence wrongfully seized by police.  Justice O’Donnell dissented, and would find the case improvidently allowed because it was too fact specific, and set forth no new general rule of law.  Justice DeWine dissented on the merits, joined by Chief Justice O’Connor.  No wonder this one was a long time in coming! The case was argued April 6, 2017. Not only was it a long time coming, it is also a long decision.

Case Background

This case started with a routine traffic stop. Appellant Jamie-Banks-Harvey was pulled over for speeding by an Ohio State Highway Patrol trooper. Also in the car were Banks-Harvey’s live-in boyfriend, Charles Hall, who owned the car, and Shannon Holcomb. Banks-Harvey did not have a driver’s license, and explained she was driving the car because Hall had hurt his hand and they were on the way to get medical help.  She showed the trooper an Ohio ID card.

The trooper asked Banks-Harvey to get out of the car, performed a pat-down search, and placed her in the back seat of his cruiser.  She did not have her purse with her when this happened.  It remained in the car.  The trooper ran information on all three occupants of the car, and learned that Banks-Harvey might have had an outstanding arrest warrant for possession of heroin in Montgomery County, and Holcomb for possession of drug paraphernalia in Warren County.  Hall had no outstanding arrest warrants.

A local police officer arrived on the scene while the trooper was awaiting confirmation of the warrants.  The trooper asked Hall for permission to search the car.  Hall refused.  The purse was still in the car.  When the outstanding warrants were confirmed, the trooper also put Holcomb in the back seat of the cruiser.  Both she and Banks-Harvey were then under arrest.

At this point, the trooper got the purse out of the car, placed it on the hood of his cruiser, and searched it.  He found a variety of drugs and paraphernalia.  The trooper showed the drugs to the local officer, who then told the trooper he might have seen a capsule in the car.  The officer then searched the car and found some capsules and a needle, but no one was arrested or charged based on these findings.  Hall’s car was not impounded, and he was allowed to drive it away.

Banks-Harvey was charged with felony possession of drugs and misdemeanor possession of drug paraphernalia and drug-abuse instruments, based on what was found in her purse. She moved to suppress this evidence, arguing that the search of her purse violated the Fourth Amendment.

The state argued the motion to suppress should be denied based on any of these exceptions to the warrant requirement: search-incident-to-arrest, plain-view, or inventory search.  The trial court rejected all three, but denied the motion to suppress based on the inevitable discovery doctrine.

Banks-Harvey pled no contest to all counts of the indictment, and was sentenced to three years of community-control, including completion of an inpatient treatment program. She appealed the denial of her motion to suppress.

Appellate Decision

In a split decision authored by Judge Hendrickson and joined by Judge Ringland, the 12th District held that the evidence should not have been admitted under the inevitable discovery doctrine, but that removal of the purse from the car and its subsequent search was done pursuant to standard Highway Patrol procedures, and thus the evidence from the purse was properly admitted as a valid inventory search. Judge Michael Powell dissented. He would find that the Highway Patrol inventory search policy as described by Trooper Keener violated the Fourth Amendment.

Read the oral argument preview of the case here, and an analysis of the argument here.

Key Precedent

Fourth Amendment of the United States Constitution (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.)

Carroll v. United States, 267 U.S. 132 (1925) (An automobile may be searched without a warrant if the law enforcement officer has reasonable or probable cause.)

Katz v. United States, 389 U.S. 347 (1967) (“Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause,’ for the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . .’”(Citations omitted))

Athens v. Wolf, 38 Ohio St.2d 237 (1974) (The state holds the burden of showing, by a preponderance of the evidence, that a search falls within the defined exceptions to the Fourth Amendment’s requirement of a warrant.)

South Dakota v. Opperman, 428 U.S. 364 (1976) (Routine practices of securing and inventorying the contents of an automobile serves three distinct needs: (1) the protection of the owner’s property while it remains in police custody, (2) the protection of the police against claims or disputes over lost or stolen property, and (3) the protection of the police from potential danger.)

United States v. Janis, 428 U.S. 433 (1976) (“If . . . the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted.”)

State v. Kessler, 53 Ohio St.2d 204 (1978) (Warrantless searches are per se unreasonable under the Fourth Amendment, unless within one of the few well-defined exceptions.)

Rakas v. Illinois, 439 U.S. 128 (1978) (Passengers in a car have no standing to assert a violation of their Fourth Amendment rights because they had no possessory interest in the car or expectation of privacy in the places searched.)

State v. Robinson, 58 Ohio St. 2d 478 (1979) (a pretextual search for evidence is not an inventory search.)

United States v. Ross, 456 U.S. 798 (1982) (“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”)

Illinois v. Lafayette, 462 U.S. 640 (1983) (The Supreme Court of the United States recognizes that an inventory search constitutes a well-defined exception to the Fourth Amendment. Exception extended to search of an arrestee and his possessions incident to being locked up.)

Nix v. Williams, 467 U.S. 431 (1984) (“If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . [,] then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.”)

State v. Perkins, 18 Ohio St.3d 193 (1985) (“[T]he ultimate or inevitable discovery exception acts to forgive the constitutional violation made in gaining the evidence . . . .”)

Colorado v. Bertine, 479 U.S. 367 (1987) (Law enforcement officers are permitted to inventory the possessions of persons in custody in order to better safeguard those possessions. The objectives of inventory searches are to protect an owner’s property, to insure against claims of lost, stolen, or damaged property, and to guard the police from danger.)

United States v. Gant, 112 F.3d 239 (6th Cir.1997) (Moving a bag from an over-head storage compartment to a seat in order for a drug-sniffing dog to pass did not constitute a seizure. “Since the sweep involved neither a search nor a seizure, none of defendant’s Fourth Amendment rights were implicated.”)

State v. Mesa, 87 Ohio St.3d 105 (1999) (“Because inventory searches are administrative caretaking functions unrelated to criminal investigations, the policies underlying the Fourth Amendment warrant requirement, including the standard of probable cause, are not implicated.”)

Arizona v. Gant, 556 U.S. 332 (2009) (Search incident to arrest exception to 4th Amendment warrant requirement did not justify the search of arrestee’s vehicle after arrestee was handcuffed and locked in the back of the police cruiser. “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”)

Davis v. United States, 564 U.S. 229 (2011) (The exclusionary rule, whereby evidence attained in violation of the Fourth Amendment is suppressed, was created by the Supreme Court of the United States to deter police misconduct.)

State v. Jones, 2015-Ohio-483 (Article I, Section 14 of the Ohio Constitution affords the same protection as the Fourth Amendment of the Constitution of the United States in felony cases.)

State v. Leak, 2016-Ohio-154 (Law enforcement arrested a passenger in a parked car for an outstanding warrant. The car was impounded and searched, despite there being no evidence that the car belonged to the suspect. “The fact that the arresting officer used established police procedure to conduct the inventory search does not overcome the unlawfulness of the impoundment in the first place. This is precisely the type of governmental intrusion the Fourth Amendment seeks to prohibit.”)

Whew! Everybody ready?

Merit Decision

Executive Summary

Bad search. Not a valid inventory search. No good faith exception. No inevitable discovery.  Drugs suppressed.  Conviction and sentence tossed.

A Quick New Federalism Moment

Banks-Harvey had argued for suppression both under the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. The court made short shrift of any greater-protection argument, (which Banks-Harvey never really developed in the high court) holding that in felony cases it has already held the protections under both are the same.

The Inventory-Search Exception, Examined and Rejected

The state argued that the search of the purse fell within the inventory-search exception to the warrant requirement. Four justices rejected that argument, although Justice Kennedy with different reasoning from the lead opinion.

Rationale Behind the Exception

The reason an inventory search is not subject to the Fourth Amendment’s warrant requirement is that it is done for administrative reasons and is unrelated to a criminal investigation. Because the police are responsible for an arrestee’s personal effects, police are permitted to search and inventory those effects that come into their custody.  Such inventory searches also protect police from anything dangerous that might turn up, and protect them from claims of theft, negligence, or property damage.

Why The Exception Does Not Apply Here

While the trooper testified that it is the policy of the State Highway Patrol to transport an arrestee’s property along with that person, no written policy was offered into evidence. The lead opinion has no quarrel with the reasonableness of such a policy, but finds that this was not a case in which the items came into police custody as the result of lawful police conduct.

So, O’Neill reframes the issue as not whether the purse was taken from the car pursuant to standard policy, but whether such a policy was enough to justify the warrantless retrieval of the purse from the car, finding that it was not.

Here, the trooper took the purse from a place protected by the Fourth Amendment, namely, the car. At the time the trooper retrieved the purse, Banks-Harvey had already been identified, and she was handcuffed and under arrest in the back of the cruiser.

“Neither her purse, nor the vehicle that contained her purse, came into police custody as a result of her arrest. On these facts, the state has failed to show that this search fits under the inventory-search exception to the Fourth Amendment’s warrant requirement,” O’Neill wrote.

So, Does Exclusion Follow?

Not automatically. For a recent example of when there was an admitted Fourth Amendment violation, but no exclusion as a remedy, try State v. Bembry, Slip Opinion No. 2017-Ohio-8114, also authored by Justice O’Neill.

Here, the state gave two reasons why the exclusionary rule should not apply in this case—inevitable discovery, and good faith.  The lead opinion rejected both.

Inevitable Discovery

As a brief refresher, illegally obtained evidence can be admitted in a proceeding if the state shows the evidence would inevitably have been discovered during a lawful investigation.

The state argued the contraband in Banks-Harvey’s purse would inevitably have been discovered in the search of Hall’s car or at the Montgomery County jail when Banks-Harvey was booked.  No sale.

The state tried to hang its hat on the observation of the empty capsule on the floorboard of the car by the local officer.  That, argued the state, provided probable cause to believe there was contraband in the car, and justification to conduct a warrantless search, which inevitably would have led to the contraband in the purse.  Not so fast, said O’Neill.

The local officer only told the trooper about the capsule after the trooper had found drugs in the purse.  The dash-cam video confirmed that. The inevitable discovery rule doesn’t apply if piggybacked onto a prior bad search. The court found there was no evidence the local officer would have done a search based on his observation of the empty capsule had he not known the trooper had already found drugs and contraband in the unlawful search of the purse.

Good Faith Exception

Another short refresher.  When an officer acts with an objectively reasonable good faith belief that the officer’s conduct is lawful, then the wrongfully obtained evidence doesn’t get excluded.  That applies to searches.  And the lead opinion supplies one example from the court’s precedent of when the good-faith exception did apply (State v. Johnson, 2014-Ohio-5021) and one when it didn’t (State v. Leak, 2016-Ohio-154, also authored by Justice O’Neill.)

 Policy That is Ok Versus One That is Not

No written Highway Patrol policy was introduced into evidence.  But even if there were such a policy, there is a distinction between a policy requiring a trooper to search, inventory, and bring along any personal property, including a purse, on the person of an arrestee at the time of arrest, which is fine, and one allowing the trooper to retrieve an arrestee’s purse when the retrieval itself is unlawful, which is not.

Lead Opinion Bottom Line

Because the conviction was based only on the evidence in Banks-Harvey’s purse, her conviction and sentence were vacated.

Justice Kennedy’s Position

Kennedy, concurring in judgment only, agrees with the lead opinion that the inventory search was a pretextual investigatory search for contraband, that the state failed to prove the good faith exception, and that the exclusionary rule applies here. But she thinks the lead opinion was too broad.

Unlike investigative searches, inventory searches are not for the purpose of discovering evidence of a crime. Inventory searches of vehicles are recognized as part of the caretaking function of law enforcement, and thus an exception to the warrant requirement.  But the inventory search exception only applies if the officers follow standardized policy, and do not act in bad faith or for the sole purpose of investigation.  “The difference between an investigative search and an inventory search is that an inventory search serves an administrative or caretaking function,” Kennedy wrote.

Kennedy also rejects the state’s argument that the evidence inevitably would have been discovered as a result of the officer’s “alternative line of investigation,” namely his search of the car based on the capsule on the floorboard.

In short, Kennedy sees the case presenting two interrelated questions. First, is it reasonable under the Fourth Amendment for a law enforcement officer to execute a standardized policy or procedure which allows for an inventory search incident to being jailed when the officer has no intention of taking the arrestee to a station house to be booked and locked up.  And second, is a standard law enforcement policy reasonable when it gives an officer the discretionary authority to take an arrestee’s personal effects which were not in the arrestee’s possession at the time of the arrest, and were safely secured, to the station house to be inventoried incident to incarceration.  She finds both are unreasonable under the Fourth Amendment.

Here, after the trooper got confirmation of the outstanding arrest warrant for Banks-Harvey, while he arrested her, handcuffed her, and returned her to the cruiser, he never intended to book her at the station house.  And while it was standard procedure to bring a woman’s purse with her when she was taken into custody, the trooper also admitted he could have left Banks-Harvey’s purse in the car with her boyfriend. Because the trooper was not going to book Banks-Harvey, and because he could have left her purse with her boyfriend, the community-caretaking function was not triggered.

Kennedy also finds the trooper did not act in good faith in claiming he searched and seized the purse to safeguard her possessions or to ensure his safety.  With regard to safeguarding Banks-Harvey’s possessions, the trooper had no intention of booking her on the active warrant, and the purse was already in a safe place when he retrieved it.  And as for officer safety, Banks-Harvey was already handcuffed and secured in the back seat of the patrol car when the trooper retrieved the purse.  So, officer safety was not a legitimate reason for the inventory search here.

“The trooper here testified that he searched appellant’s purse to safeguard her possessions, to look for weapons for officer safety considerations, and to look for evidence of a crime. Categorically, therefore, the trooper’s search of appellant’s purse to ferret out evidence of a crime was per se invalid,” Kennedy wrote. “Here, because the search of appellant’s purse was not executed pursuant to a standardized procedure or policy in good faith and was executed for the sole purpose of investigation, I am compelled to apply the exclusionary rule,” wrote Kennedy (a former police officer, herself.)

Justice O’Donnell Would Dismiss the Case As Improvidently Allowed

Justice O’Donnell dissented. He would dismiss the case as improvidently accepted because the Ohio Highway Patrol policy was not in evidence, the case is totally fact specific, and “no general rule of law can be formulated from its resolution.”

Justice DeWine’s Dissent

Justice DeWine finds nothing improper about the search or the seizure of the purse, and would uphold the denial of the motion to suppress.

Whether the car was protected under the Fourth Amendment or not (and for the record, DeWine thought not), Banks-Harvey, who was just driving the car with the owner’s permission, had no possessory interest in the car nor any expectation of privacy in the car. To him the focus of this case should be on the purse, not the car.

Of course Banks-Harvey has a possessory interest in her own purse. To DeWine, taking the purse from the car was not even a seizure, let alone an unreasonable one. Citing a dearth of caselaw from the U.S. Supreme Court on what constitutes a seizure of property, DeWine thinks there was not enough meaningful interference with the purse to constitute a seizure at all.  The trooper retrieved Banks-Harvey’s purse to bring it with her to the jail.  At the time he retrieved it, her possessory interest in the purse was diminished.   And she was already detained, in the back seat of the cruiser. So, first point—the retrieval of the purse was not a seizure at all.

Moving on. Even if the retrieval of the purse was a seizure, it was not an unreasonable one.  The trooper’s testimony that he acted pursuant to standard procedure that the purse goes with the arrestee was undisputed.  And it makes sense—the purse could hold stuff Banks-Harvey might need at the jail, and inventorying the contents protects the police from claims the purse was stolen or left unprotected. The fact that the trooper was only handing Banks-Harvey off to other law enforcement, not taking her to jail himself, is of no consequence to DeWine.  Nor did the policy that requires personal effects go with an arrestee when then the effects were not with the person when she was arrested and the property is already in a secure location concern DeWine, as it did Kennedy.

“…the point of a policy is to give troopers guidelines so that they don’t have to undertake the responsibility of assessing the security of an item on a case-by-case basis,” wrote DeWine.

DeWine would also find the warrantless inventory search of the purse here was lawful. The trooper testified that his inventory search of Banks-Harvey’s purse was performed pursuant to written policy. Even though the Highway Patrol policy was never put into evidence, no one challenged its existence. While DeWine agrees that an inventory search, even if done pursuant to policy is unreasonable if done in bad faith or for the sole purpose of investigation, he does not agree that is what happened here.

“Here, despite the attempts to cast aspersions on the trooper’s motivation, there is no evidence that the trooper’s primary purpose was other than to secure the purse so that it could accompany Banks-Harvey to the station. That he was also on the lookout for illegal items does not render the inventory search unreasonable,” wrote DeWine.

Chief Justice O’Connor joined this dissent.

Case Syllabus


Concluding Observations

Here’s what I wrote after argument:

“[Looks] like a win for the defense. I think a majority of the justices are going to find that the trooper had no right to remove Banks-Harvey’s purse from the car once Banks-Harvey was under arrest and secured in the back of the cruiser, and the car was not impounded, and that the inventory search policy at issue here either wasn’t clearly established in the record or violated the Fourth Amendment.”

I agree with Justice O’Donnell that the case was so fact specific, no general rule of law emerged. Still, I always favor a muscular application of the Fourth Amendment, even where, as with the lead opinion, the analysis meanders some. I found Justice Kennedy’s analysis that the inventory search was pretextual for an investigatory search to be tighter than the lead opinion. Still, there is plenty in the fact-specific opinion that can be useful in suppression arguments in the future And this was undoubtedly Justice O’Neill’s swan song.

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