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Search Incident to Arrest
Mar 11, 2019

Search Incident to Arrest

Daniel J. Leffler, Attorney

The Ohio Supreme Court in a 4-3 decision recently announced an opinion in the case of State v. Banks-Harvey, 152 Ohio St.3d 368 (2018) related to the suppression of evidence following a traffic stop. The Court concluded that a search of personal effects obtained as a result of a law-enforcement agency’s policy that an arrestee’s personal effects must accompany the arrestee to jail is not a valid inventory search.  The policy did not justify the warrantless retrieval of an arrestee’s personal effects from a location that is protected under the Fourth Amendment.  As a result, the exclusionary rule applies to require the suppression of the evidence obtained during the unconstitutional search.

On October 21, 2014, an Ohio State Highway Patrol trooper made a lawful stop of Jamie Banks-Harvey for speeding.  The vehicle had three occupants, Banks-Harvey, her boyfriend, Charles Hall, who owned the vehicle, and Shannon Holcomb.  Banks-Harvey did not have her driver’s license, instead, retrieved her state of Ohio identification card from her purse.  The trooper asked Banks-Harvey to step out of the vehicle, performed a pat-down search and placed her in the back seat of his cruiser.  Banks-Harvey “did not have her purse with her when she was placed in the trooper’s cruiser; it remained in Hall’s vehicle.” Id., at 369.  Banks-Harvey possibly had an outstanding warrant for her arrest for possession of heroin in Montgomery County and that Holcomb (the passenger) possibly had an outstanding warrant for her arrest for possession of drug paraphernalia in Warren County. Hall, the vehicle owner, had no outstanding warrants for his arrest.  The trooper then told Hall that both Banks-Harvey and Holcomb had drug-related warrants for their arrest and that it was within his discretion to impound Hall’s vehicle but that he had not yet decided whether he would do so.  The trooper then asked if he could search Hall’s vehicle; however, Hall did not grant consent.  Upon confirmation of the warrants, the trooper arrested Holcomb and put her in the back of his cruiser with Banks-Harvey.  Banks-Harvey and Holcomb were under arrest on the outstanding warrants.  The trooper then entered Hall’s vehicle, retrieved Banks-Harvey’s purse, placed it on the hood of his cruiser, and searched it.  Her purse contained, among other things, a baggie with ten yellow pills, three needles, one of which contained brown liquid, three clear capsules filled with brown powder, and three clear capsules filled with white powder.  Banks-Harvey was charged with felony possession of drugs and misdemeanor possession of drug paraphernalia.

The trial court denied Banks-Harvey’s motion to suppress the evidence found in the purse as it would have inevitably been discovered during a search of the vehicle.  Id. at 370.  The appellate court upheld the conviction for a different reason, “concluding that the retrieval of [Banks-Harvey’s] purse from the car was done pursuant to a standard Ohio State Highway Patrol policy and that the drugs and drug paraphernalia found in [her] purse were admissible as the fruits of a valid inventory search of the purse once it was in police custody.” Id. at 371. [1]

The Supreme Court overturned the conviction.  While the case is somewhat more complicated due to the changing theories of why the search was a valid warrantless search and the differing opinions of the trial court and the court of appeals, the question before the Supreme Court was whether the Highway Patrol policy to retrieve and inventory the belongings of an arrested person can justify the warrantless entry into a car to retrieve the purse of an already-arrested person and the subsequent warrantless removal and search of that purse or whether the search violates the Fourth Amendment and Section 14, Article I of the Ohio Constitution.  Id. at 371. 

“The inventory-search exception is a well-defined exception to the Fourth Amendment’s warrant requirement. Illinois v. Lafayette, 462 U.S. 640 (1983) (citation omitted).  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. Mesa, 87 Ohio St.3d 105 (1999) (citation omitted).  As a practical matter, the personal effects with a person at the time of his or her arrest must be stored while the person is in jail. And because the police are potentially responsible for the items, they are permitted to search and inventory the personal effects that come into their custody. Colorado v. Bertine, 479 U.S. 367 (1987) (citation omitted).  This administrative search and inventory is intended to help guard against claims of theft or careless handling and also protects the police from dangerous instruments. Id. (citation omitted).” 152 Ohio St.3d at 373.  The Supreme Court concluded that, in this case, the purse did not lawfully come into the possession of the police at the time of the search.  Id. at 374.  The Court noted that if Banks-Harvey had requested the police to retrieve her purse or if Banks-Harvey had the purse in her possession at the time of the arrest, the outcome would be different.  Id.  The Court did not note whether the search would be valid if the owner, Hall, had consented to the search of the vehicle, but obviously this would have changed the scenario also.  For law enforcement purposes, officers should be aware that once a person is arrested, the retrieval of the person’s belongings from another location must also meet one of the warrantless-search exceptions. 

The second interesting analysis focused on the inevitable discovery rule.  The Ohio Supreme Court “adopted the inevitable-discovery exception to the exclusionary rule in State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 (1985).  Under that exception, illegally obtained evidence may be admitted in a proceeding once the state establishes that the evidence would inevitably have been discovered in the course of a lawful investigation. Id. following Nix v. Williams, 467 U.S. 431 (1984) (citations omitted).  In this case, the Court rejected the exception.  During the incident, a local police officer assisting the Trooper advised the Trooper after the search of the purse that he might have observed a drug capsule in the vehicle.  The officer then searched the vehicle and found capsules and a needle. 152 Ohio St.3d at 370.  Because the officer’s search of the vehicle occurred after the unlawful seizure and search of the purse, there was no evidence that the vehicle would have been searched but for the unlawful search of the purse and therefore no evidence that the discovery of the drugs and paraphernalia in the purse would have inevitably been discovered. Id. at 376.

There is also an interesting dissenting opinion from Justice DeWine that concludes that the retrieval of the purse from the car was not a “seizure” in the first place.  Id. at 386-388.  This case is not only interesting due to the number of facts that cut both ways, there are numerous cases outlining the various warrantless-search exceptions.  All law enforcement should read this case.                                                   

[1] All facts are recounted by the Supreme Court, 152 Ohio St. 3d, at 368-370.    

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North Royalton, OH 44133

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