[Cite as State v. Smith,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200352 TRIAL NO. B-1905631 Plaintiff-Appellee, :

vs. : O P I N I O N. ARTHUR SMITH, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 4, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} The state of Ohio appeals from the judgment of the Hamilton County

Court of Common Pleas granting defendant-appellee Arthur Smith’s motion to

suppress a firearm obtained after a warrantless search of the vehicle he was driving.

For the following reasons, we affirm the trial court’s judgment.

Procedural and Factual Background

{¶2} Arthur Smith was charged with having a weapon while under a

disability, carrying a concealed weapon, and improperly handling a firearm in a

motor vehicle. Smith filed a motion to suppress the firearm, challenging the

warrantless search of the vehicle he was driving. At the hearing on the motion, the

state argued that Smith had no standing to assert a constitutional violation because

the registered owner of the vehicle, Shavonda Washington, had filed a criminal

complaint the previous day alleging that Smith refused to return the vehicle to her.

The state also argued that Washington consented to the search, and that the search

was a proper inventory search.

{¶3} Smith contended that he had a reasonable expectation of privacy in the

vehicle based upon his possession and use of the vehicle and an equitable interest in

the vehicle. He further argued that Washington was not asked for her consent to

search, and that the search was not a lawful inventory search.

{¶4} The state presented the testimony of the two officers involved in the

arrest and search of the vehicle, Deputy Rylan Babbs and Deputy Todd Rizzo.

Additionally, seven body camera videos of the three officers who were present were

admitted into evidence as joint exhibits. The trial court granted the motion, and the

state now appeals.

2 OHIO FIRST DISTRICT COURT OF APPEALS

Motion to Suppress Testimony

{¶5} Deputy Rylan Babbs was working as a patrol officer for the Hamilton

County Sheriff’s Department (“HCSO”) when he heard a “Be on the Lookout”

(“BOLO”) call for a Hyundai Sonata that had been involved in a shooting. When he

ran the license plate number of the Sonata, he learned the car was registered to

Washington, whose address was in Columbia Township. Babbs and his partner,

Deputy Todd Rizzo, drove to that address. When they arrived, Arthur Smith had just

exited from a white Escalade and was walking toward Shavonda Washington who

was standing outside in the front yard of her home.

{¶6} When Babbs ran the license plate number of the Escalade, he

discovered that the car was registered to Washington and had been reported stolen

the previous day. Babbs exited from his cruiser as Smith was walking across the

street. Babbs and his partner Rizzo detained and handcuffed Smith and placed him

in a cruiser. After speaking with Washington, Babbs ran Smith’s name and learned

he had outstanding charges and warrants for his arrest, and Smith was placed under

arrest. One of the charges was for unauthorized use of a vehicle filed on October 3,

2019.

{¶7} Babbs testified that he told Washington he was required to search the

car because it had been reported stolen, and she consented to the search. Babbs also

characterized the search as an inventory search. According to their policy, stolen

vehicles are towed and inventory searched to document any valuable items in the car.

Although Babbs initially told Washington that the car would not be towed, he

testified that Rizzo later told him that he was mistaken because they needed the

supervisor’s authorization to release the vehicle to Washington. While awaiting

3 OHIO FIRST DISTRICT COURT OF APPEALS

authorization, Babbs searched the car, focusing on all of the immediate areas that

Smith could reach from the driver’s side and looking for items of value to mark on a

tow sheet. When he opened the center console, he found a gun.

{¶8} On cross-examination, Babbs testified that he had previously given

Smith a traffic citation when he was driving the Escalade, and he knew that Smith

had been driving the car for a long time. Babbs completed a “Uniform Incident

Report” and had written that the “search [was] incident to arrest” and he had

conducted “a wingspan search of the vehicle for officer safety.” Babbs confirmed that

Smith had been in the cruiser for over 20 minutes when he searched the car.

Although he testified that he conducted an inventory search, Babbs conceded that he

did not complete the required inventory report and did not tow the car. Babbs

acknowledged that when he told Washington he was going to search the car, she

responded, “Okay.”

{¶9} Rizzo testified that he was a patrol officer for HCSO who worked

primarily in Silverton. On that evening, he was backing up the Columbia Township

officer. When the officers learned the car Smith was driving had been reported

stolen, they detained Smith. The previous day, the car had been reported stolen to

the Cincinnati Police Department (“CPD”), so the vehicle was the jurisdiction of CPD.

Rizzo had to consult with CPD to determine whether to tow the vehicle. CPD did not

want to tow the car, and his supervisor told him to tow the car if Washington wanted

it towed. Rizzo testified that they searched the car because they believed it was going

to be towed because the car was reported stolen.

{¶10} On redirect, the state had Rizzo identify the affidavit and complaint for

an unauthorized-use-of-a-vehicle charge completed by Officer Shack on October 3,

4 OHIO FIRST DISTRICT COURT OF APPEALS

2019. The affidavit and complaint were admitted as exhibits.

Body Camera Video Recordings

{¶11} At the end of the hearing, seven body camera videos files were

admitted into evidence. The court confirmed that all of the video files were being

admitted for its review, and that excerpts from files 3 and 7 were played in court.

{¶12} When the videos begin, Smith was legally parked on the street and

exiting from the Escalade. While Smith was crossing the street and walking toward

Washington’s house, she was walking toward the street where Babbs and Rizzo were

standing. The officers stopped Smith, handcuffed him, and frisked him. When Rizzo

informed Washington that the car had been reported stolen, Smith told him that the

car had not been stolen. He further explained that he had just learned that the car

had been reported stolen, and he was bringing it back to Washington. Rizzo told

Smith that the car would be returned to Washington. While Rizzo placed Smith in

the back of a cruiser, Babbs went to speak with Washington.

{¶13} Washington explained that she and Smith have a child together, and

he has had access to the car although the car is registered to her. She had lost her car

keys, so they were sharing his keys. Washington acknowledged to Babbs that Smith

has had access to the car, and that Smith had been driving the car weeks ago when

Babbs issued him a traffic citation while Smith was picking up their son from school.

Washington confirmed that Smith had been driving the car for a long time. She told

Babbs, “Well, you can’t say it was stolen. We bought it together.”

{¶14} Washington and Smith had broken up, and he had moved out of her

home approximately a month prior. Washington was trying to mend the

relationship, but when Smith rebuffed her efforts, she told him that if he did not

5 OHIO FIRST DISTRICT COURT OF APPEALS

return the car, she would report it stolen. That same day, she reported it stolen, and

he returned the car the following morning. Washington repeatedly told Babbs that

she did not want to prosecute Smith because he returned the car.

{¶15} Babbs asked Washington if she wanted to check the car with him to see

if Smith had left any of his possessions in the car. Washington said that everything

in the car belonged to Smith except for two televisions that were hers. She asked if

she could check to see if her televisions were still in the car, and Babbs asked her to

give him a few moments.

{¶16} Babbs conferred with Rizzo and explained that Smith usually had

access to the vehicle, and that at most, he would be charged with unauthorized use of

the vehicle. However, Washington did not want to pursue a criminal charge. Smith

again told Rizzo that he had just learned from the officer that she had reported the

car stolen. He also told Rizzo that the car was his, and his money was in the car.

{¶17} Babbs and Rizzo removed Smith from the cruiser and performed a

comprehensive search of him and returned him to the cruiser. After the search, they

both turned off their cameras. When Babbs turned his camera back on, he

approached Washington and checked her identification to confirm that the car was

registered to her. Then he told her, “Here about two or three minutes, I’m going to

go through that truck.” Washington responded, “Okay.” Babbs further explained:

So um that’s something we got to do for a stolen vehicle. You said your

TV’s [sic] are in there, you need back. So usually what we have to do

for a stolen vehicle is like tow them away, but it’s already here at your

house, so we’re not going to do all that, to get it fingerprinted and all

that cause we already know who drove it. So, couple more minutes,

6 OHIO FIRST DISTRICT COURT OF APPEALS

I’m going to go through the truck then give you your keys back and

we’ll be out of your hair.

{¶18} Then Babbs conducted a thorough search of the vehicle. He searched

every compartment and reviewed every piece of paper he found. The car contained a

suitcase, bags of clothing and multiple pairs of shoes. When he opened the center

console in the front seat, he found a firearm. While he continued to search the car, a

third officer arrived. That officer searched the car again. He also questioned

Washington. When he asked her how Smith got the car, she answered, “He had it. It

was his, it was mine. It’s in my name.” She further explained that Smith had a right

to drive the car.

Factual Findings and Legal Conclusions

{¶19} The trial court issued a written decision sustaining the motion to

suppress. In concluding that Smith had standing to object to the search, the court

found that Babbs knew that Smith regularly drove the vehicle before the October 4,

2019 date of arrest, and Washington admitted that Smith had had permission to

drive the car, but as of October 3, 2019, she sought the return of the car. Prior to the

search, Washington told the officers that Smith had access to and had been driving

the vehicle. Washington reported the vehicle stolen the day before Smith’s arrest,

and when Smith was arrested just outside of her home, she acknowledged that Smith

was returning the vehicle to her. “There was ample evidence that Smith regularly

drove the vehicle with Washington’s permission before October 4, 2019, when he was

arrested. Although the vehicle is solely titled in Washington’s name, she allowed him

to use it.”

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶20} The court further found that Smith routinely drove the vehicle, and

Washington and Smith shared the same set of keys. Deputy Babbs acknowledged

that the vehicle had not been stolen, and “If anything, it’s just going to be

unauthorized use. I don’t think she wants to do much with it now.” Before the

search of the vehicle, Washington told the officers that Smith had access to and had

been driving the vehicle, and she did not want to pursue charges against Smith.

Based on these facts, the court concluded that Smith had an expectation of privacy in

the vehicle that society was prepared to recognize as reasonable.

{¶21} The court also found that the search was not consensual or a

reasonable inventory search. Washington did not consent to the search. “The video

clearly shows Officer Babbs telling Washington ‘I’m going to go through that truck.’

The officer did not ask her for consent.” Her response was a mere submission to

authority. The search was not a reasonable inventory search because:

the car was not legally impounded or towed, the owner was present to receive

it, and there was no need to keep the personal items in the vehicle safe. The

car was legally parked on the street. Moreover, the video of the search

showed that the officers were sifting through the vehicle in order to find

evidence of a crime.

{¶22} Raising one assignment of error, the state contends that the trial court

erred when it granted Smith’s motion to suppress the firearm found during the

search of the car. Specifically, the state argues that Smith did not have standing to

challenge the search, Washington consented to the search, and the search was a

proper inventory search.

8 OHIO FIRST DISTRICT COURT OF APPEALS

Standard of Review

{¶23} Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact. State v. Showes, 1st Dist. Hamilton No. C-180552,

. Because the trial court is in the best position to resolve factual

questions and evaluate witness credibility, we must accept the trial court’s findings of

fact if they are supported by competent and credible evidence, but we review de novo

the application of the relevant law to those facts. State v. Johnson,

,

, ¶ 14 (12th Dist.).

Standing

{¶24} The Fourth Amendment serves to protect an individual’s subjective

expectation of privacy if that expectation is reasonable and justifiable. Rakas v.

Illinois,

,

,

(1978); Katz v. United

States,

,

,

(1967) (Harlan, J.,

concurring); State v. Buzzard,

,

,

.

Thus, an individual must have standing to challenge the legality of a search or

seizure. State v. Coleman,

,

(1989). The

person challenging the search bears the burden of proving standing. State v.

Williams,

,

(1995). To meet that burden, the

person must establish that he or she has an expectation of privacy in the place

searched that society is prepared to recognize as reasonable.

{¶25} “[A]n individual who is in lawful possession of a vehicle, although not

the titled owner, does possess a legitimate expectation of privacy in the vehicle

searched, if he or she can demonstrate that the owner gave them permission to use

the vehicle.” State v. Nicholson, 5th Dist. Stark No. 2016 CA 00210, 2017-Ohio-

9 OHIO FIRST DISTRICT COURT OF APPEALS

2825, ¶ 23. One who asserts a property or possessory interest in a vehicle

demonstrates an expectation of privacy. See Rakas, at 148. A legitimate expectation

of privacy “must have a source outside of the Fourth Amendment, either by reference

to concepts of real or personal property law or to understandings that are recognized

and permitted by society.” Byrd v. United States, ___ U.S. ___,

,

(2018), quoting

. “[A] at a minimum, the

proponent bears the burden of establishing ‘that he gained possession from the

owner or someone with authority to grant possession.’ ” United States v. Valdez

Hocker,

(10th Cir. 2003), citing United States v. Arango,

(10th Cir. 1990). “Where the defendant offers sufficient evidence

indicating that he has permission of the owner to use the vehicle, the defendant

plainly has a reasonable expectation of privacy in the vehicle and standing to

challenge the search of the vehicle.” United States v. Rubio-Rivera,

(10th Cir. 1990).

{¶26} The state argues that the trial court erred in concluding that Smith had

standing because he failed to present evidence that he lawfully possessed the vehicle

at the time of the search. The state further asserts that none of the facts relied upon

by the trial court established lawful possession.

{¶27} The trial court determined that Smith had a reasonable expectation of

privacy that society was prepared to recognize based on Washington’s statements to

the officers. She repeatedly told the investigating deputies, before the search of the

vehicle, that Smith had access to and had been driving the vehicle for a lengthy

period of time. Although the vehicle is registered to Washington, she allowed him to

use it. She had lost her set of keys so they were sharing his keys. Deputy Babbs knew

10 OHIO FIRST DISTRICT COURT OF APPEALS

that the defendant regularly drove the vehicle with the permission of the owner in

the weeks before October 4, 2019. Washington told the officers numerous times that

she did not wish to prosecute him for driving the car.

{¶28} The court further found that Washington herself admitted that the

defendant had permission to drive the car, but as of October 3, 2019, she sought its

return because they had broken up, and she acknowledged that Smith was returning

the vehicle to her. The record supports the trial court’s conclusion that Smith

regularly had permission to drive the vehicle before October 4, 2019, and that Smith

was returning the car to Washington at the time of his arrest.

{¶29} Washington’s statements also established that Smith had a possessory

or a property interest in the vehicle. Washington stated that the car belonged to both

of them, he had a right to drive it, and they had “bought it together.” Washington

admitted that all of the possessions in the car belonged to Smith except for the two

televisions. The car contained a suitcase and bags with Smith’s clothing and several

pairs of shoes. Smith referred to the car as “his,” and told the officers that the car

had not been stolen. He had just learned that the car had been reported stolen, when

he drove to Washington’s home. Notably, Washington never told the officers that

Smith had stolen the car, and she declined to prosecute him for having the car.

{¶30} Accordingly, based on the unique facts and circumstances in this case,

Smith established that he had standing to object to the search.

The Search of the Vehicle

{¶31} The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution provide for “[t]he right of the people to be

secure * * * against unreasonable searches and seizures * * *.” Searches and seizures

11 OHIO FIRST DISTRICT COURT OF APPEALS

conducted without a prior finding of probable cause by a judge or magistrate “are per

se unreasonable under the Fourth Amendment, subject to only a few specifically

established and well-delineated exceptions.” California v. Acevedo,

,

,

(1991); State v. Tincher,

,

(12th Dist. 1988).

{¶32} When an individual voluntarily consents to a search, no fourth

amendment violation occurs. See United States v. Drayton,

,

,

(2002) (stating that “[p]olice officers act in full accord

with the law when they ask citizens for consent”). The question of whether a consent

to search was voluntary or was the product of duress or coercion is a question of fact

to be determined from the totality of the circumstances. Schneckloth v. Bustamonte,

,

,

(1973). The state has the burden to

prove, by clear and convincing evidence, that the consent was freely and voluntarily

given. Bumper v. North Carolina,

,

,

(1968); State v. Jackson,

,

(6th Dist. 1996),

citing State v. Danby,

,

(6th Dist. 1983). “Proof

of voluntariness necessarily includes a demonstration that no coercion was employed

and that consent was not granted ‘only in submission to a claim of lawful authority.’ ”

, quoting

.

{¶33} Here, Babbs informed Washington that, “I’m going to go through that

truck.” When Washington responded, “Okay,” Babbs further explained, “So um

that’s something we got to do for a stolen vehicle.” Babbs did not ask Washington if

he could search her vehicle. “Rather, this was going to be an immediate search of the

vehicle and mere acquiescence to authority does not constitute consent.” State v.

12 OHIO FIRST DISTRICT COURT OF APPEALS

Williams, 2d Dist. Montgomery

, citing Bumper,

,

,

, as cited in State v. Lane, 2d Dist.

Montgomery No. 21501,

.

{¶34} After reviewing the totality of the circumstances, we hold that there

was competent, credible evidence presented at the suppression hearing to support

the trial court’s determination that Washington did not freely and voluntarily

consent to the search.

{¶35} An inventory search of a lawfully impounded vehicle is a recognized

exception the general prohibition against warrantless searches. State v. Hathman,

,

(1992). The inventory search must be

conducted in good faith and “in accordance with reasonable standardized

procedure(s) or established routine.”

at paragraph one of the syllabus. “While

those procedures need not be in writing, the state must show that the police

department has a standardized routine policy, and that the officer’s conduct

conformed to that policy.” State v. Ojile, 1st Dist. Hamilton Nos. C-110677 and C-

110678,

. “The Ohio Supreme Court has held that ‘inventory

searches of lawfully impounded vehicles are reasonable under the Fourth

Amendment when performed in accordance with standard police procedure and

when the evidence does not demonstrate that the procedure involved is merely a

pretext for an evidentiary search of the impounded vehicle.’ ” State v. Foster, 2017-

Ohio-4036,

(1st Dist. 2017), quoting State v. Leak,

,

,

.

{¶36} The trial court found that the search was not a reasonable inventory

search. The car was not legally impounded or towed, the owner was present to

13 OHIO FIRST DISTRICT COURT OF APPEALS

receive it, and there was no need to keep the personal items in the vehicle safe. The

car was legally parked on the street. Moreover, the video of the search showed that

the officers were sifting through the vehicle in order to find evidence of a crime.

{¶37} The state argues that Babbs’s testimony that he was mistaken in telling

Washington that he would leave the vehicle with her because the decision had not yet

been made coupled with his testimony that department policy required the towing of

a stolen vehicle was sufficient to establish the search was an inventory search.

{¶38} However, a review of the record does not support the state’s assertions.

Prior to the search, both Babbs and Rizzo stated that the car would be returned to

Washington, undermining Babbs’s testimony that Rizzo had told him that he was

mistaken and needed authorization from the supervisor. Moreover, both

acknowledged that the vehicle had not been stolen, and that at most, Smith was not

authorized to use the vehicle.

{¶39} Although Babbs testified that he conducted an inventory search, he

admittedly did not have or complete the required inventory report while conducting

the search, and after completing the search, he did not tow the car. Babbs did not

testify regarding the details of the policy, such as the policy for opening and

searching compartments and closed containers, and the policy was not introduced at

the hearing. A review of the video reveals that Babbs extensively searched the

vehicle, including opening compartments, a suitcase, and closed bags. Finally,

Babbs wrote that the search was incident to an arrest on the “Uniform Incident

Report.”

{¶40} Based on this record, we cannot say the trial court erred in concluding

that the search of the vehicle was not a “reasonable” inventory search under the

14 OHIO FIRST DISTRICT COURT OF APPEALS

Fourth Amendment and the evidence demonstrated the procedure was a pretext for

an evidentiary search. See Leak,

,

,

. The state failed to prove the search was made “pursuant to standard police

procedures” and for the purpose of “securing or protecting the car and its contents.”

See

Conclusion

{¶41} We overrule the state’s sole assignment of error and affirm the

judgment of the trial court.

Judgment affirmed. CROUSE and HENDON, JJ., concur.

SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by assignment.

Please note: The court has recorded its own entry this date.

15