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Date: 12-03-2020

Case Style:

STATE OF OHIO v. JESS FLEMING

Case Number: 28743

Judge: Jeffrey M. Welbaum

Court: IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

Plaintiff's Attorney: ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney

Defendant's Attorney:


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Description:

Dayton, OH - Criminal defense lawyer represented defendant Jess Fleming charged with possession of heroin, in violation of R.C. 2925.11(A), a felony of the third degree, and possession of a fentanyl-related compound, in violation of R.C. 2925.11(A), a felony of the fifth degree.



At the suppression hearing, Dayton Police Officer Michael Floyd was the only
witness. Floyd testified that on October 20, 2019, he was dispatched to a traffic crash at
the intersection of South Smithville Road and East Third Street in Dayton, Ohio.
Transcript of Suppression Hearing (“Tr.”), p. 6. The collision involved multiple vehicles
that were blocking the intersection. Id.
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{¶ 5} After arriving at the scene, Floyd observed Fleming sitting on the southeast
curb of the intersection, filling out a witness statement. Id. at p. 7. Fleming had been
the driver of a Ford F-150 truck, which was one of the vehicles that had been involved in
the collision. Id. Because the entire northbound lane of the road was obstructed and
the intersection typically was busy, the police decided to tow all the vehicles that could
not be moved on their own power. Id. at p. 8, 15, and 21. Since Fleming’s truck was
not functioning, it was one of the vehicles that had to be towed. Id. at p. 15.
{¶ 6} The Dayton Police Department has a tow policy that provides officers with
guidelines concerning what they should do when towing vehicles. Id. at p. 9 and State’s
Ex. 1. Under the policy, officers conduct an inventory of property in vehicles that are to
be towed. This is an administrative care-taking function to secure valuables. Id. at p.
14 and 16. After deciding that Fleming’s truck needed to be towed because it was
blocking traffic, Officer Floyd told Fleming that the truck was going to be towed. Id. at p.
9-10. Fleming did not say anything in response. Id. at p. 10. Floyd did not tell Fleming
that an inventory search was going to be conducted, nor did he ask Fleming if he would
like to remove anything from the truck before the search began. Id. at p. 17. Floyd was
not certain why he did not ask Fleming; he indicated he was just worried about getting
traffic out of the way. Id. at p. 18.
{¶ 7} As Officer Floyd walked over to the truck’s door, he immediately saw an
aluminum container with a clear plastic top sitting in the middle of the front bench seat.
He could see through the top and could see pills inside. Tr. at p. 11-12. As soon as
Floyd saw the container, he grabbed it, took a closer look, and confirmed that it was what
he thought it was. He then opened the container, removed the pills, and found a baggie
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of powder under the pills. Id. at p. 12. The pills also contained powder. Id. at p. 13.
These items were later determined to contain illegal drugs.
{¶ 8} As a result, Fleming was indicted in November 2019 for the following
offenses: Count I, possession of heroin (50 unit doses but less than 100 unit doses), in
violation of R.C. 2925.11(A), a felony of the third degree; Count II, possession of heroin
(less than one gram), in violation of R.C. 2925.11(A), a felony of the fifth degree; Count
III, possession of a fentanyl-related compound, in violation of R.C. 2925.11(A), a felony
of the fifth degree; and Count IV, possession of a fentanyl-related compound (50 unit
doses but less than 100 unit doses), in violation of R.C. 2925.11(A), a felony of the third
degree. At his arraignment on November 20, 2019, Fleming stood mute, and the trial
court entered a not guilty plea on his behalf.
{¶ 9} The following day, Fleming filed a motion to suppress any statements he
made to police and to suppress any physical evidence seized during the vehicle’s search.
The trial court then held a hearing on the motion on January 13, 2020, and overruled the
motion to suppress from the bench. On the same day, the court filed an entry and order
journalizing its decision overruling the motion to suppress.
{¶ 10} Thereafter, Fleming pled no contest to Count I, possession of heroin (50
unit doses but less than 100 unit doses), and Count III, possession of a fentanyl-related
compound, in exchange for dismissal of the two remaining counts. The trial court
accepted his pleas, and on February 19, 2020, it sentenced Fleming to nine months in
prison on one count and 18 months on the other, with the sentences to be served
concurrently with each other and with a sentence Fleming received in another case.
Fleming timely appealed from the judgment of the trial court.
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II. Did the Trial Court Err in Overruling the Motion to Suppress?
{¶ 11} Fleming’s sole assignment of error states that:
The Trial Court Erred in Overruling Appellant’s Motion to Suppress
Where Police Conducted a Warrantless Search of His Automobile, Thereby
Violating His Fourth Amendment Right to Be Free of Unreasonable
Searches And Seizures.
{¶ 12} Fleming advances two main reasons for his contention that the trial court
erred when it overruled his motion to suppress. First, Officer Floyd did not ask Fleming
if he wanted to remove anything from the disabled truck before the contents were
inventoried pursuant to the Dayton Police Department tow policy. Fleming also argues
that the tow policy is unreasonable and violates the Fourth Amendment of the United
States Constitution because it does not require officers to offer owners of disabled
vehicles a chance to remove personal property before conducting inventory searches in
non-arrest situations.
{¶ 13} “Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court's findings
of fact if they are supported by competent, credible evidence. * * * Accepting these facts
as true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id.
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{¶ 14} Both the Fourteenth Amendment to the United States Constitution and
Article I, Section 14, Ohio Constitution protect persons from unreasonable searches and
seizures. State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 13.
“Under the Fourth Amendment to the United States Constitution, a search conducted
without prior approval of a judge or magistrate is per se unreasonable, subject to certain
well-established exceptions.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45
N.E.3d 127, ¶ 181, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed.2d 567 (1967). (Other citation omitted.)
{¶ 15} One such exception involves inventory searches “conducted in the service
of law enforcement's community-caretaking function, which results from the government's
extensive regulation of motor vehicles and traffic.” Leak at ¶ 20, citing Cady v.
Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). “In the
interest of public safety, as part of the community-caretaking function of police, vehicles
are frequently taken into police custody.” Id., citing South Dakota v. Opperman, 428 U.S.
364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). (Other citation omitted.) “Examples
of vehicles taken into custody as part of law enforcement's community-caretaking role
include those that have been in accidents, those that violate parking ordinances, those
that are stolen or abandoned, and those that cannot be lawfully driven.” Id., citing
Opperman at 368-369.
{¶ 16} These routine procedures of securing and inventorying a vehicle’s contents
serve “three distinct needs: the protection of the owner's property while it remains in police
custody, * * * the protection of the police against claims or disputes over lost or stolen
property, * * * and the protection of the police from potential danger.” Opperman at 369.
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“An inventory search is not subject to the Fourth Amendment's warrant requirement or a
probable-cause review, because it is a search that is made for administrative reasons
and is unrelated to a criminal investigation.” State v. Banks-Harvey, 152 Ohio St.3d 368,
2018-Ohio-201, 96 N.E.3d 262, ¶ 20.
{¶ 17} In the case before us, Officer Floyd ordered Fleming's vehicle to be towed
and taken into custody as authorized by General Order 3.02-6 of the Dayton Police
Department. This is the document that outlines the Department’s policy for towing
vehicles. As indicated, Floyd issued the order because Fleming's vehicle was disabled
due to the collision and was obstructing traffic. The relevant provisions of the tow policy
state as follows:
I. WHEN TO TOW A VEHICLE * * *
* * *
C. Vehicle towed from accident scene at owner's request or when
owner is incapable of making decision, or to remove the vehicle from
obstructing traffic.
* * *
IV. PROPERTY INVENTORY OF A TOWED MOTOR VEHICLE
A. Prior to towing any motor vehicle (excluding Abandoned
Vehicles), conduct an inventory of the vehicle's contents and note the
information on the MDC screen or complete a Tow-In/Liability Waiver Card
F-472. A property inventory is an administrative, caretaking function,
which itemizes and secures property in a seized or impounded vehicle.
The United States Supreme Court has ruled that an inventory of a lawfully
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seized motor vehicle conducted to safeguard property and not merely as a
pretext to search without a warrant is reasonable and does not violate
Fourth Amendment Rights against illegal searches.
* * *
D. Inventory of a Towed Vehicle -- Non-Arrest Situation (i.e.,
Accidents, Car Trouble)
The owner, if able, may remove personal property from the vehicle prior to
towing. Property left in the vehicle is inventoried and secured the same as
in the parking violation tow section above.
State’s Ex. 1, p. 1-3.
{¶ 18} The tow policy also permits police to “[i]nventory the contents of closed
containers (boxes, bags, and unlocked suitcases)” in non-arrest situations as long as the
container is not locked. See General Order 3.02-6, Section IV(D), Section IV(C), and
Section IV(B)(5).
{¶ 19} As previously stated, Fleming argues that nothing can be “left in the vehicle”
under the tow policy if the police fail to specifically tell owners of disabled vehicles in nonarrest situations that they can remove property items prior to an inventory search.
Simply put, Fleming contends that owners of disabled vehicles cannot leave property
behind without an express opportunity to remove it before an inventory search begins.
{¶ 20} In support of his argument, Fleming claims that the tow policy’s use of the
phrase “left in the vehicle” refers to property left in disabled vehicles that owners do not
take after being told that they may take their property. In his brief, Fleming states that
“leave” is defined as “to fail to take along,” “to go away from,” “desert,” or “abandon.”
-9-
Appellant’s Brief, p. 6, quoting Webster’s Dictionary. Based on these definitions,
Fleming argues that the tow policy requires owners who remain at the scene to be
expressly offered an opportunity to remove personal property before an inventory search
can begin.
{¶ 21} However, nothing in the Dayton tow policy requires that police expressly
advise owners of disabled vehicles that they “may remove personal property from the
vehicle prior to towing.” We have previously stressed that:
The words in statutes or rules of procedure must be given their “plain
and ordinary meaning, unless legislative intent indicates otherwise.” Union
Rural Elec. Coop., Inc. v. Pub. Util. Comm. (1990), 52 Ohio St.3d 78, 555
N.E.2d 641. If the rule conveys a meaning which is clear and unequivocal,
then the interpretation is at an end. Provident Bank v. Wood (1973), 36
Ohio St.2d 101, 105-106, 304 N.E.2d 378. However, if the term is
ambiguous, a court should look at all words used in the rule and ensure that
all words have effect and no part of the rule is disregarded. D.A.B.E., Inc.
v. Toledo-Lucas Cty. Bd. of Health (2002), 96 Ohio St.3d 250, 254, 773
N.E.2d 536, 2002-Ohio-4172.
State ex rel. Montgomery Cty. Pub. Def. v. Rosencrans, 2d Dist. Montgomery No.
CA20416, 2005-Ohio-6681, ¶ 18.
{¶ 22} After applying these principles of interpretation, we disagree with Fleming’s
construction of the tow policy’s language, as Fleming adds words and meaning to the
policy that the policy’s drafters did not intend. Specifically, Fleming argues that the
phrase “left in the vehicle” somehow means that property cannot be left behind unless an
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owner chooses not to take it after expressly being told he or she can take it. However,
there are many ways of leaving something behind. Clearly, Fleming left his pill tin in the
vehicle when he got out after the collision occurred.
{¶ 23} The tow policy does not explicitly state that the police have any duty to
expressly tell owners that they “may remove personal property from the vehicle prior to
towing.” The plain and ordinary meaning, in fact, indicates otherwise. Consequently,
Officer Floyd was not required to inform Fleming that he could remove property from the
vehicle and did not violate the tow policy when he failed to provide such a warning.
{¶ 24} Fleming also argues that to satisfy the Fourth Amendment’s
reasonableness requirement, the tow policy must require police to expressly advise
owners of disabled vehicles in a non-arrest situation that they may remove personal
property before the vehicle’s contents are inventoried. In support of his argument,
Fleming relies on two out-of-state cases: State v. Mangold, 82 N.J. 575, 414 A.2d 1312
(1980), and State v. Fulmer, 366 Ore. 224, 460 P.3d 486 (2019).
{¶ 25} In Mangold, the New Jersey Supreme Court held that a police inventory of
a vehicle’s contents did not satisfy the Fourth Amendment where the officers failed to
consult the occupants of the vehicle who were not under arrest or otherwise
incapacitated. Mangold at 587. The Mangold court further held that “if a vehicle is
lawfully impounded and its owner or permissive user is present, that person must be given
the option of either consenting to the inventory or making his own arrangements for the
safekeeping of the property contained in the vehicle. Absent consent or alternative
security provisions, an inventory may be not undertaken. In such cases the vehicle
owner or user will be presumed to have assumed the risk for any claims of property loss
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or theft arising from the impoundment.” Id.
{¶ 26} However, after Mangold was decided, the United States Supreme Court
rejected the idea that the Fourth Amendment requires the police to give vehicle owners a
chance to make alternative arrangements. See Colorado v. Bertine, 479 U.S. 367, 373-
374, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). In Bertine, the police discovered a backpack
during an inventory search of the contents of a van. Id. at 369. The backpack was
opened and was found to contain a number of closed metal canisters. Id. After opening
the canisters, the police found illegal drugs, drug paraphernalia, and $700 in cash. Id.
Another $210 in cash was found in a sealed envelope in an outside zippered compartment
of the backpack. Id.
{¶ 27} At issue in Bertine was whether the search of the backpack should have
been governed by the court’s prior decisions on inventory searches or by its decisions
concerning “closed trunks and suitcases,” which had found that such searches violate the
Fourth Amendment. Id. at 371. The court concluded that the inventory search
principles applied. Thus, such a search “may be ‘reasonable’ under the Fourth
Amendment even though it is not conducted pursuant to a warrant based upon probable
cause.” Id.
{¶ 28} The court then held that opening the backpack and the containers found
during the inventory search did not violate the Fourth Amendment prohibition against
unreasonable searches and seizures. Specifically, the court found “there was no
showing that the police, who were following standardized procedures, acted in bad faith
or for the sole purpose of investigation.” Id. at 372. In concluding that the inventory
search was conducted pursuant to standardized procedures, the court also emphasized
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that the police department's policy for impounding vehicles mandated a detailed inventory
of the opening of closed containers and their contents. Id. at 374, fn. 6.
{¶ 29} Furthermore, the United States Supreme Court rejected the lower court’s
reasoning that the search was unreasonable because the police could have offered the
defendant “the opportunity to make other arrangements for the safekeeping of his
property.” Bertine, 479 U.S. at 373, 107 S.Ct. 738, 93 L.Ed.2d 739. In this regard, the
court stressed the distinction between what “could” be achieved and what is “required”
under the Fourth Amendment. Id. at 374. The court also remarked that “ ‘[t]he
reasonableness of any particular governmental activity does not necessarily or invariably
turn on the existence of alternative “less intrusive” means.’ ” Id., quoting Illinois v.
Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Consequently, the
court concluded that “reasonable police regulations relating to inventory procedures
administered in good faith satisfy the Fourth Amendment, even though courts might as a
matter of hindsight be able to devise equally reasonable rules requiring a different
procedure.” Id.
{¶ 30} New Jersey decisions issued after Bertine have noted that “to the extent
Mangold rested upon Fourth Amendment jurisprudence it may no longer be valid insofar
as the ‘alternative arrangements’ aspect of its holding is concerned.” State v. One 1994
Ford Thunderbird, 349 N.J.Super. 352, 367, 793 A.2d 792 (2002), discussing Mangold,
82 N.J. 575, 414 A.2d 1312. However, the court did observe in Thunderbird that
Mangold remains good law on state law grounds because Art. 1, part 7 of New Jersey’s
Constitution offers greater protection than the Fourth Amendment of the United States
Constitution. Id. at 367, fn.12, citing State v. Mahoney, 226 N.J.Super. 617, 625, fn. 3,
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545 A.2d 235 (1988). And, indeed, the New Jersey Supreme Court recently cited
Mangold for its balancing test, which includes “ ‘the availability of less intrusive
alternatives.’ ” State v. Hummel, 232 N.J. 196, 210, 179 A.3d 366 (2018), quoting
Mangold at 584.
{¶ 31} Concerning the Fulmer decision, the Supreme Court of Oregon held that
the police must “give occupants who are present and not under arrest notice that they
may retrieve readily removable personal belongings before an inventory is conducted.”
Fulmer, 366 Ore. at 234, 460 P.3d 486. The court’s holding was based on the fact that
“exceptions to the warrant requirement of Article I, section 9 [of the Oregon Constitution],
are limited by the purposes that justify the exception in the first place. And,* * * the
admission of evidence discovered in a noncriminal, noninvestigative inventory search,
when the owner of the property is present and able to retrieve the property – but is never
notified that he or she may do so – exceeds the permissible scope of the exception.” Id.
at 235. Notably, the Fulmer court did not extend its ruling beyond the Oregon
Constitution.
{¶ 32} In view of the above analysis, both decisions that Fleming cites are based
solely on interpretations of state constitutions that exceed what the Fourth Amendment
requires. In this vein, the Supreme Court of Ohio has stressed that “[w]e will generally
‘harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the
Fourth Amendment, unless there are persuasive reasons to find otherwise.’ ” (Emphasis
sic.) State v. Bembry, 151 Ohio St.3d 502, 2017-Ohio-8114, 90 N.E.3d 891, ¶ 24,
quoting State v. Robinette, 80 Ohio St.3d 234, 239, 685 N.E.2d 762 (1997).
{¶ 33} At certain times, the Supreme Court of Ohio has extended greater
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protection to its citizens than the Fourth Amendment requires. For example, in State v.
Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175 (Brown I), the court held that
“Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth
Amendment to the United States Constitution against warrantless arrests for minor
misdemeanors * * *.” Id. at ¶ 7. Similarly, the court has also held, pursuant to the Ohio
Constitution, that “[t]he government's interests in permitting an officer without statutory
jurisdiction or authority to make a traffic stop for a minor misdemeanor offense in these
circumstances is minimal and is outweighed by the intrusion upon the individual's liberty
and privacy that necessarily arises out of the stop.” State v. Brown, 143 Ohio St.3d 444,
2015-Ohio-2438, 39 N.E.3d 496, ¶ 25 (Brown II).
{¶ 34} In making the decision whether “persuasive reasons” exist, the Supreme
Court of Ohio has applied a balancing test which “weighs the government’s interests
against the offender’s interests.” Brown I at ¶ 17 and 22, citing State v. Jones, 88 Ohio
St.3d 430, 440, 727 N.E.2d 886 (2000). Accord Brown II at ¶ 21.
{¶ 35} Fleming has not given us persuasive reasons to extend the reach of the
Ohio Constitution to the present circumstances, other than indicating that the constitutions
of Ohio and Oregon are nearly identical. Appellant’s Reply Brief, p.1. While that may
be true, it adds nothing to the equation.
{¶ 36} Upon consideration, we do not find persuasive reasons to extend the reach
of Ohio’s constitutional protections in the manner Fleming suggests. As an initial point,
no Ohio cases taking such an approach have been cited to us, and we have not
discovered any. More importantly, the Ohio Supreme Court has extended the
constitutional protection of Section 14, Article I of the Ohio Constitution in very few
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situations. We are not inclined to venture beyond what the Supreme Court of Ohio has
already allowed, particularly in the situation before us.
{¶ 37} We also note that in Bertine, the United States Supreme Court stressed the
“strong governmental interests” involved in the policies behind inventory searches and
“the diminished expectation of privacy in an automobile * * *.” Bertine, 479 U.S. at 372,
107 S.Ct. 738, 93 L.Ed.2d 739. Given this comment, the balancing analysis clearly does
not weigh in favor of extending the reach of Ohio’s constitution.
{¶ 38} The Dayton Police Department’s tow policy is also consistent with Ohio law,
which provides that “[i]f, during a valid inventory search of a lawfully impounded vehicle,
a law-enforcement official discovers a closed container, the container may only be
opened as part of the inventory process if there is in existence a standardized policy or
practice specifically governing the opening of such containers.” State v. Hathman, 65
Ohio St.3d 403, 604 N.E.2d 743 (1992), paragraph two of the syllabus, following Bertine
and Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). Accord State v.
Reese, 2d Dist. Champaign No. 2018-CA-10, 2019-Ohio-399, ¶ 14. As noted above,
Dayton’s tow policy specifically covers and permits opening of closed containers, unless
they are locked.
{¶ 39} Moreover, while Bertine recognizes that in hindsight, “equally reasonable
rules requiring a different procedure” might be used, they are not required. Bertine at
374. Significantly, the trial court stated during the suppression hearing that “[t]t would
not be unreasonable * * * to make a policy that * * * the owners, the drivers, should be
advised of their right to remove * * * personal property prior to towing. It’s not a farfetched idea.” Tr. at p. 33-34. However, the trial court ultimately held, and we agree,
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that the Dayton Police tow policy is a reasonable, standardized policy that Officer Floyd
complied with in good faith. Therefore, the tow policy was not constitutionally lacking.
The policy did not unreasonably fail to require the police to expressly notify owners of
disabled vehicles that they could remove personal property before an inventory search
was conducted.
{¶ 40} As a final matter, the State contends that the motion to suppress was
properly denied because the object in question was in plain view when Officer Floyd
walked up to the car. Appellee’s Brief, p. 6-7. The trial court did not make a ruling on this
point, and given our ruling on the suppression decision, we have no need to consider it.
{¶ 41} Based on the preceding discussion, Fleming’s sole assignment of error is
overruled.

Outcome: } Fleming’s assignment of error having been overruled, the judgment of the trial court is affirmed.

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