{"id":4608,"date":"2010-09-06T17:57:10","date_gmt":"2010-08-31T23:44:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-09-01T07:04:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4608","title":{"rendered":"OH8: Inventory that was admittedly investigatory was invalid"},"content":{"rendered":"

The defendant\u2019s vehicle was lawfully searched and towed, but the scope of inventory was clearly pretextual, and cocaine found under the trunk carpet is suppressed. State v. Wells<\/a>, 2010 Ohio 4000, 2010 Ohio App. LEXIS 3404 (8th Dist. August 24, 2010):<\/p>\n

[*P13] An inventory search conducted with an investigatory intent and not in the manner of an inventory search does not constitute an inventory search. State v. Seals, 8th Dist. No. 90561, 2008 Ohio 5117, P28, citing Caponi, supra. It is apparent that Officer Yasenchack used the inventory search as a “pretext” for searching for more evidence. If he suspected evidence was in the wheel well, he should have obtained a search warrant to inspect it. The vehicle was not at risk of being driven away because, as Officer Yasenchack testified, it was to be towed to a secured police parking lot.<\/p>\n

[*P14] We do not find the State’s argument that the “automobile exception” to the warrant requirement allowed Officer Yasenchack to search the wheel well persuasive. The officer specifically stated that he performed an inventory search of the vehicle. Further, the prosecutor argued to the trial court that this was a “standard search of an automobile lawfully towed.”\n<\/p><\/blockquote>\n

The stop in this case, with guns drawn and commands to show hands, was not a situation where the suspects were \u201cfree to leave.\u201d State v. Mayberry<\/a>, 2010 Ohio 4081, 2010 Ohio App. LEXIS 3458 (2d Dist. August 30, 2010)*:<\/p>\n

[*P27] The threatening presence of several officers, the officer’s wearing of a uniform, the officer’s display of a weapon, and the officer’s use of language or a tone of voice conveying that compliance is compelled are among various factors that indicate that an encounter is not consensual. State v. Saunders, Montgomery App. No. 22621, 2009 Ohio 1273, P16, quoting State v. Schott (May 16, 1997), Darke App. No. 1415, 1997 Ohio App. LEXIS 2061. Officer Dedrick’s conduct of approaching the vehicle with his weapon drawn and ordering the occupants to show their hands, along with Officer Gustwiller’s subsequent orders to Mayberry, constituted a display of authority such that the four individuals would not have believed that they were free to leave but, instead, that they were compelled to comply with the officers’ orders. Accordingly, upon exiting the cruiser, the officers initiated an investigatory detention, which was lawful only if they had a reasonable and articulable suspicion of criminal activity when the detention began.<\/p><\/blockquote>\n

[posted 8\/31–I had to get to court yesterday]<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4608","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4608","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4608"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4608\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4608"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4608"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4608"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}