STATE OF OHIO v. JESS FLEMING

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.

-3-

{¶ 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

-4-

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.

-5-

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.

-6-

{¶ 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.

-7-

“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

-8-

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

-10-

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

-11-

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

-12-

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,

-13-

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

-14-

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

-15-

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,

-16-

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.

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