OH: A policy to take arrestee’s purse to jail with her doesn’t grant power to inventory it

“This case addresses whether a law-enforcement agency’s policy that an arrestee’s personal effects must accompany the arrestee to jail can, on its own, justify the warrantless retrieval of an arrestee’s personal effects from a location that is protected under the Fourth Amendment to the United States Constitution. We hold that it cannot. We further hold that a search of personal effects obtained as a result of following such a policy is not a valid inventory search. We further conclude that in this case, the exclusionary rule applies to require the suppression of the evidence obtained during the unconstitutional search. Accordingly, we reverse the judgment of the court of appeals, which upheld the trial court’s denial of the appellant’s motion to suppress the evidence found during the search of her purse, and we vacate the appellant’s convictions and sentence.” State v. Banks-Harvey, 2018-Ohio-201 (Jan. 23, 2018), revg 2016-Ohio-5792, 146 Ohio St.3d 1502, 58 N.E.3d 1173 (12th Dist. 2016):

{¶ 22} Based on the trooper’s testimony at the suppression hearing, the trial court found that it is the policy of the Ohio State Highway Patrol to transport an arrestee’s property with the arrestee, but no written policy was offered as evidence at the hearing. The question in this case is not whether the purse was taken from the car pursuant to a standardized law-enforcement policy, but whether such a policy was sufficient justification for the warrantless retrieval of the purse from the car. We conclude that it was not and therefore that the subsequent search of the purse did not qualify as a valid inventory search, because the purse had not lawfully come into the custody of the police.

{¶ 23} Certainly we take no issue with the reasonableness of an administrative policy requiring the search and inventory of personal items that necessarily come into police custody as a result of an arrest. Indeed, R.C. 2981.11 requires law-enforcement agencies to keep safe any lawfully seized property that comes into their custody. However, this is not a case in which personal items came into the custody of the police as an incident of lawful police conduct. In this case, the trooper retrieved a personal item belonging to an arrestee from a place that is protected under the Fourth Amendment (the car). At the time the trooper retrieved the appellant’s purse, her identity had already been confirmed and she was handcuffed and under arrest in the trooper’s vehicle. 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.

{¶ 24} We note that had the trooper obtained the purse in a legal way, such as retrieving it from the car at the appellant’s request, we would have been compelled to reach a different result. Likewise, if the appellant had been arrested on the street with her purse on her person, we would have been compelled to reach a different result. But a law-enforcement policy that an arrestee’s personal effects go with them to jail, does not, by itself, authorize an officer to retrieve the arrestee’s personal effects from a place that is protected under the Fourth Amendment.

Exclusionary Rule

{¶ 25} The Fourth Amendment says nothing about suppressing evidence obtained in violation of its protections. Nevertheless, the United States Supreme Court created the exclusionary rule, which precludes the use in a criminal proceeding of evidence obtained in violation of the Fourth Amendment, “to ‘compel respect for the constitutional guaranty.’ ” Davis v. United States, 564 U.S. 229, 236, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The purpose of the rule is not to redress the constitutional injury but to deter future constitutional violations. Id. at 236-237; State v. Johnson, 141 Ohio St.3d 136, 2014-Ohio-5021, 22 N.E.3d 1061, ¶ 40. When suppression would not yield “appreciable deterrence,” application of the exclusionary rule is unwarranted. United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). The state argues that the exclusionary rule should not be applied in this case for two reasons: one, the contraband would inevitably have been discovered and two, the trooper acted in good faith.

The state’s inevitable-discovery argument

{¶ 26} The state asserts that the contraband in the appellant’s purse would inevitably have been discovered in the subsequent search of Hall’s vehicle and/or at the Montgomery County jail when the appellant was booked. We disagree.

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