COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68198 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD LESAK : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-311609 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: JOHN R. KOSKO (#0021192) Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN J. RICOTTA (#0000778) 1280 West Third Street - 3rd Floor Cleveland, Ohio 44113 - 2 - 2 SPELLACY, P.J.: Defendant-appellant Donald Lesak appeals from his conviction for aggravated murder, in violation of R.C. 2903.01, and raises two assignments of error: I. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, IN OVERRULING THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS THE ITEMS SEIZED FROM APPELLANT'S VEHICLE ON THE GROUNDS THAT THE VEHICLE WAS SEARCHED AND THE ITEMS WERE SEIZED IN VIOLATION OF THE APPEL- LANT'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION AND UNDER THE OHIO CONSTITUTION. II. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, IN OVERRULING THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS THE CONSENT TO SEARCH FORM EXECUTED BY THE APPELLANT AT THE REQUEST OF THE CLEVELAND POLICE DEPART- MENT AFTER THE APPELLANT INVOKED HIS RIGHT TO COUNSEL, IN VIOLATION OF THE APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS AND UNDER THE OHIO CONSTITUTION. I. Before trial, Lesak moved to suppress items found in his car and statements he made after his arrest. The following evidence was adduced at the suppression hearing: Shortly after midnight on May 24, 1994, Euclid police officers arrested Lesak, a suspect in a murder that had taken place the day before in Cleveland, Ohio, when he drove into the parking lot of the Chester House Motel in Euclid, Ohio. Euclid Police Officer Kenneth Kucinski then radioed for a tow truck and began to inventory Lesak's car. Before Officer Kucinski finished the inventory he learned that Cleveland police officers were going to take the car. Officer Kucinski stopped inventorying the car and - 3 - 3 informed Cleveland Police Officer Kennedy Jones that he had found a handgun in the center console. Officer Kucinski testified that before towing a vehicle the Euclid Police Department completes a "tow sheet" and inventories the vehicle completely, including the "glove box, under the seats, trunk, the whole thing ***." (Tr. 70) After Officer Jones inventoried the car and completed a tow sheet, the car was towed to a Cleveland impound lot. On the tow sheet, Officer Jones listed a handgun in the center console and three handguns, a rifle, ammunition, magazines, and books in the trunk. Officer Jones testified that he did not record some miscellaneous papers he found because he felt them insignificant. He also did not record the presence of a duffle bag in the truck or the contents of the duffle bag except for the handguns. Officer Jones identified Cleveland Police Department regulations requiring an inventory and completion of a tow sheet before a vehicle may be towed. At approximately 8:00 A.M., Cleveland Detective Gregory Kunz and his partner met with Lesak. At some point during their discussion, Lesak stated that he did not want to answer any more questions and asked to speak with a lawyer. Detective Kunz and his partner then asked Lesak whether he would answer some questions concerning his car. Lesak agreed to do so and told the detectives that the car was leased and that the lease had expired the day before. Lesak then asked the detectives to remove his property from the car and return it to the rental agency. After Lesak - 4 - 4 signed a consent-to-search form, the detectives searched the car. During the search the detectives found the handgun in the center console and four handguns, a rifle, ammunition, clothing, holsters, audio tapes, ink scrapers, personal papers, and keys in the trunk. The trial court found that the detectives improperly continued questioning and granted Lesak's motion to suppress the statements he made to them, including the consent-to-search form he signed. The trial court denied the motion to suppress the items discovered in the car. The trial court found the inventory searches valid; it further found that, even though the consent-to-search form was invalid, the items discovered in the car during the consent search were admissible under the inevitable discovery rule. II. In his first assignment of error, Lesak contends that the trial court erred when it denied his motion to suppress the items discovered during the inventory searches. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless seizures are per se unreasonable unless they fall under a recognized exception. Katz v. United States (1967), 389 U.S. 347, 357. One recognized exception is the routine inventory search of a properly impounded vehicle. South Dakota v. Opperman (1976), 428 U.S. 364, 372. To be valid, "an inventory search of a lawfully impounded car must be conducted in good faith and in accordance with reasonable - 5 - 5 standardized procedure(s) or established routine." State v. Hathman (1992), 65 Ohio St.3d 403, paragraph one of the syllabus. Lesak argues that the inventory search made by Officer Kucinski was invalid because no evidence was introduced about the Euclid Police Department's policy concerning inventory searches. Officer Kucinski, however, testified that the Euclid Police Department requires the inventory of all vehicles before towing. He further testified to the thoroughness of the required inventory. Lesak also argues that the inventory search made by Officer Kucinski was invalid because he did not complete a tow sheet. It was unnecessary, however, for Officer Kucinski to complete a tow sheet once the Cleveland Police decided to take the car. Lesak goes on to argue that the inventory search made by Officer Kucinski was invalid because no valuables were in plain view. Although valuables in plain view prompted the inventory search in Opperman, observable valuables are not a condition precedent to inventory searches. See State v. Fry (Dec. 14, 1994), Summit App. No. 16718, unreported. Lesak argues that the inventory search made by Officer Jones was invalid because it was made in bad faith. Lesak maintains that Officer Jones's focus on the weapons in the car demonstrates that his inventory search was merely a pretext for an investigatory search. The trial court rejected this argument and found that the search was made in good faith. We find the evidence supports the trial court's conclusion. - 6 - 6 Accordingly, Lesak's first assignment of error is not well taken. III. In his second assignment of error, Lesak contends that the trial court erred when it denied his motion to suppress the items discovered during the consent search. Lesak argues that the trial court should have suppressed the items discovered in the car during the consent search because it found the consent search invalid. The inevitable discovery rule allows the admission of illegally obtained evidence where "it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation." State v. Perkins (1985), 18 Ohio St.3d 193, syllabus; see, also, Nix v. Williams (1984), 476 U.S. 431. The state bears the burden of showing "within a reasonable probability that police officers would have discovered the derivative evidence apart from the unlawful conduct." Perkins, 18 Ohio St.3d at 196. Here, the car was in a Cleveland impound lot, Lesak was a suspect in a murder investigation, and the detectives were aware that various weapons were in the car. We find that the evidence shows a reasonable probability that the detectives would have obtained a search warrant if Lesak had not consented to the search. Accordingly, Lesak's second assignment of error is not well taken. Judgment affirmed. - 7 - 7 It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. and ANN McMANAMON, J.*, CONCUR. (McManamon, J., Retired Judge of the Eighth Appellate Dis- trict Sitting by Assignment) LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period .