COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72699 STATE OF OHIO, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : JOSE MESA, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JUNE 25, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-346611 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Stephanie Tubbs Jones Cuyahoga County Prosecutor L. Christopher Frey Perry M. Kendall, Jr. George J. Sadd Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44114 For defendant-appellee: Gail S. Messerman Gerald A. Messerman MESSERMAN & MESSERMAN 4100 Key Tower 127 Public Square Cleveland, Ohio 44114 NAHRA, J.: The State of Ohio appeals the grant of appellee's motion to suppress evidence in his prosecution for a violation of R.C. 2923.12(A), carrying a concealed weapon. -2- On December 27, 1997, appellee was arrested by Lakewood police officers in Cleveland on charges unrelated to this appeal. Subsequent to his arrest, appellee's vehicle was searched and impounded. A loaded 9MM handgun was found in a closed console between the front seats. The trial court held a two-part hearing on appellee's motion to suppress. At the second part of the hearing, Lakewood police officer Donald Lissner, Lakewood police detective John Robinson, and Lakewood police detective David Risner testified as to the nature and circumstances of how appellee's car was searched, where the handgun was found, and the procedures they followed in handling and securing the handgun. On June 11, 1997, the trial court issued a written opinion and order granting appellee's motion to suppress. The trial court found that the Lakewood police department's policy regarding inventory searches was ambiguous and that the police officers involved in the search of appellant's car did not follow proper procedures per written policy. For those reasons, the trial court ordered the evidence of the handgun suppressed. The state appeals that order, stating its sole assignment of error as: THE TRIAL COURT ERRED IN SUPPRESSING AS EVIDENCE A LOADED WEAPON FOUND IN A CLOSED, UNLOCKED COMPARTMENT OF A MOTOR VEHICLE WHEN THE VEHICLE WAS SEARCHED UNDER AN INVENTORY POLICY THAT AUTHORIZED THE SEARCH AND THE SEARCH WAS LIMITED TO A SEARCH FOR PROPERTY. THE SEARCH WAS PROPER BECAUSE THE OFFICERS ACTED IN GOOD FAITH AND DID NOT SEARCH OTHER THAN FOR INVENTORY PURPOSES. -3- The state argues that the search conducted by the Lakewood police officers was an inventory search and that the officers followed a valid policy in both conducting the search and maintaining an inventory of the items found. The Lakewood police department policy regarding impounded vehicles states in pertinent part: 9. TOWING - GENERAL INFORMATION/PROCEDURES *** 9.1 Procedures - Prior to removing/towing any vehicles from public streets and highways or on private property in accordance with LCO 303.08 the following general procedures shall be followed: 9.1.1. The open compartments of the vehicle are to be searched. Locked compartments shall not be opened by the officer during a standard inventory. *** 9.1.1.2. Contraband and any property of twenty five dollars ($25.00) or more in value is to be taken into custody. 9.1.1.3. A separate report is to be generated listing any and all property removed from the vehicle. *** 9.1.3. Property slips will be placed on all property taken into custody and said property will be noted on the tow/release form. *** In reviewing an appeal from a motion to suppress evidence, the appellate court is bound to accept facts found by the trial court. State v. Fanning (1982), 1 Ohio St.3d 19, 20; 437 N.E.2d 583, 584. The application of law to those facts is subject to review without -4- deference to the trial court. State v. Anderson (1995), 100 Ohio App.3d 688, 691; 654 N.E.2d 1034, 1036. In this case, the police officers conducted a search of appellee's car to inventory its contents. In State v. Hathman (1992), 65 Ohio St.3d 403; 604 N.E.2d 743, the Ohio Supreme Court stated in the syllabus that: 1. To satisfy the requirements of the Fourth Amendment to the United States Constitution, an inventory search of a lawfully impounded vehicle must be conducted in good faith and in accordance with reasonable standardized procedure(s) or established routine. (South Dakota v. Opperman(1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; Colorado v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739; and Florida v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1, followed.) 2. If, during a valid inventory search of a lawfully impounded vehicle, a law-enforcement official discovers a closed container, the container may only be opened as part of the inventory process if there is in existence a standardized policy or practice specifically governing the opening of such containers. (Colorado v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739; and Florida v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1, followed.) In Hathman, the Ohio Supreme Court reiterated the reasoning in South Dakota v. Opperman (1976), 428 U.S. 364, which validated an inventory search of an impounded vehicle as reasonable under the Fourth Amendment to the United States Constitution, by stating the functions served by an inventory search are the protection of property in police custody, protection for police against frivolous claims of lost or damaged property, as well as protection for police from danger. Hathman, 65 Ohio St.3d at 405-06, 604 N.E.2d at 745. -5- One issue in Hathman was whether the inventory search of the automobile could include the opening of containers found within the automobile. In this case, the suppressed evidence was found in a closed compartment of appellee's vehicle. However, under Fourth Amendment analysis, the United States Supreme Court has not created a clear distinction between compartments or containers during an automobile search, stating that, [T]he privacy interests in a car's trunk or glove compartment may be no less than those in a movable container. United States v. Ross (1982), 456 U.S. 798, 823. After hearing testimony regarding Lakewood's inventory search policy, the trial court found the policy to be ambiguous. The policy specifically prohibits the search of locked compartments, while mandating the search of open compartments. However, it does not address closed but unlocked compartments, such as the console in which the handgun was found. Consequently, as was testified to at the hearing, one police officer may search closed but unlocked compartments when conducting an inventory search, while another may not. In contrast to Lakewood's written policy, we note the Ohio Supreme Court's approval of the Dayton, Ohio police department's policy regulating inventory searches in State v. Peagler (1996), 76 Ohio St.3d 496, 668 N.E.2d 489. In Peagler, the court noted the Dayton policy, stating: The policy requires that the police officers "inventory property inside the vehicle's passenger compartment, glove box, console, and trunk prior to towing." They are further directed to "open and inventory the contents of -6- closed containers (boxes, bags, unlocked suitcases, and briefcases), prior to locking them in the trunk. DO NOT open locked containers but list them as one item on the vehicle inventory. Any closed container, locked or unlocked, taken to the Police Property Room, must be opened and its contents inventoried for safety purposes." 76 Ohio St.3d at 503, 668 N.E.2d at 495. In light of the specificity in procedure in the Dayton policy cited in Peagler, supra, the Lakewood policy's ambiguity is even more apparent. As the Lakewood policy does not set forth a specific procedure for conducting an inventory search, the implementation of this policy by the Lakewood police cannot result in a standardized procedure for inventory searches as required by Hathman, supra, and thus cannot be found to produce an inventory search deemed reasonable under the Fourth Amendment to the Constitution of the United States. For these reason's, we affirm the trial court's order to suppress evidence and overrule appellant's assignment of error. -7- It is ordered that appellee recover of appellant his 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ___________________________________ JOSEPH J. NAHRA JUDGE BLACKMON, A.J., CONCURS. MICHAEL J. CORRIGAN, J., DISSENTS. (See attached dissenting opinion.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72699 STATE OF OHIO : : : Plaintiff-Appellant : : : -vs- : DISSENTING OPINION : JOSE MESA : : : Defendant-Appellee : : : DATE: JUNE 25, 1998 MICHAEL J. CORRIGAN, J., DISSENTING: I respectfully dissent from the conclusion reached by the majority that the inventory search of defendant-appellee's automobile was unreasonable under the Fourth Amendment and that the motion to suppress was properly granted. On December 27, 1996, a Complaint by an Individual was filed with the Lakewood Prosecutor's Office alleging that Jose Mesa, defendant-appellee, committed gross sexual imposition. Defendant- appellee was subsequently arrested in a parking lot based upon a warrant issued by the Lakewood Municipal Court.1 During the inventory search of defendant-appellee's vehicle, a loaded 9mm 1 Contrary to defendant-appellee's assertions, I believe that after a review of the Complaint by Individual and a review of the entire record/transcript, the issuance of the arrest warrant comports with Crim.R. 4 and did not constitute an abuse of discretion. See State v. George (1989), 45 Ohio St.3d 325. -2- Baretta semi-automatic pistol with 15 high velocity hollow point rounds of ammunition were found in the center console of his vehicle. This evidence was reported in a supplemental filing statement. Defendant-appellee was subsequently indicted with rape in violation of R.C. 2907.02, felonious assault in violation of R.C. 2903.11, two counts of gross sexual imposition in violation of R.C. 2907.05, theft in violation of R.C. 2913.02, and carrying a concealed weapon in violation of R.C. 2923.12. On February 27, 1997, two motions were filed on behalf of the defendant-appellee: 1) to separate the trial on the weapons charge from the remaining charges; and 2) to suppress the evidence taken from his vehicle. The trials were separated and a hearing on the motion to suppress the items seized in the vehicle was delayed until after the trial on the remaining charges. After the trial court rendered a judgment of acquittal for the charge of felonious assault, the jury found defendant-appellee not guilty of the remaining charges. On April 10, 1997, a hearing was held on the motion to suppress evidence discovered in his vehicle, i.e., the loaded handgun. The trial court concluded [t]he seizure of the weapon was other than incident to an inventory search. The trial court stated in pertinent part: Lakewood's written policy for inventory search is so ambiguous as to constitute the absence of a policy. In addition, there is no articulated policy which even purports to regulate the opening of closed containers. Lakewood's written policy was patently violated in at least two important respects; -3- 1) A separate report was not generated listing any and all property removed from the vehicle, and; 2) None of the property taken into custody was listed in the tow release form. The trial court granted defendant-appellee's motion to suppress and the state of Ohio, plaintiff-appellant, timely files this appeal. As its sole assignment of error, plaintiff-appellant states: THE TRIAL COURT ERRED IN SUPPRESSING AS EVIDENCE A LOADED WEAPON FOUND IN A CLOSED, UNLOCKED COMPARTMENT OF A MOTOR VEHICLE WHEN THE VEHICLE WAS SEARCHED UNDER AN INVENTORY POLICY THAT AUTHORIZED THE SEARCH AND THE SEARCH WAS LIMITED TO A SEARCH FOR PROPERTY. THE SEARCH WAS PROPER BECAUSE THE OFFICERS ACTED IN GOOD FAITH AND DID NOT SEARCH OTHER THAN FOR INVENTORY PURPOSES. Plaintiff-appellant, state of Ohio, argues the trial court erred in granting defendant-appellee's motion to suppress since the inventory search was conducted in good faith and in compliance with a reasonable inventory procedure and departmental practice. Specifically, 9.1.1 of the Lakewood Inventory Procedure states in part: [t]he opened compartments of the vehicle are to be searched. Locked compartments shall not be opened by the officer during a standard inventory. In a motion to suppress, the trial court assumes the role of the trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250. A reviewing court is therefore bound to accept those findings of fact if supported by competent, credible evidence. See State v. Scheibel (1990), 55 Ohio St.3d 71. However, without deference to the trial court's conclusion, it must be -4- determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623. See, also, State v. Curry (1994), 95 Ohio App.3d 93. For the following reasons, I believe both the trial court and the majority have erred in their interpretation of the inventory search exception to the warrant requirement and its application to the facts and circumstances of this case. A brief review of the development of the inventory exception is warranted. The Fourth and Fourteenth Amendments to the United States Constitution prohibit warrantless searches and seizures. Warrantless searches and seizures are per se unreasonable under the Fourth and Fourteenth Amendments subject to a few specifically established and well delineated exceptions. Katz v. United States (1967), 389 U.S. 347, 357. It is without question that an inventory search of an impounded vehicle is a well-defined exception to the warrant requirement. Colorado v. Bertine (1987), 479 U.S. 367. In United States v. Spitalieri, 391 F.Supp 167, (N.D. Ohio, 1975), the court put forth the following considerations underlying the view that custodial seizures and accompanying inventory searches are reasonable: It cannot be denied that to prevent escape, self-injury, or harm to others, the police have a legitimate interest in separating the accused from the property found in his possession. An inventory is then necessary both to preserve the property of the accused while he is in jail and to forestall the possibility that the accused may later claim that some item has not been returned to him. Id. at 170, citing United States v. Lipscomb, 435 F.2d 795 (5 Cir. 1971). -5- The court concluded that [a]n inventory search, properly conducted without intent of avoiding warrant requirements, is not an infringement on Fourth Amendment rights, nor should evidence obtained during the course of that search be suppressed. Id. That case was cited to, with approval by the United States Supreme Court, in South Dakota v. Opperman (1976), 428 U.S. 364. In that case, the Court assessed the reasonableness of an inventory search of the glove compartment in an abandoned automobile impounded by the police. The Court found that inventory procedures: 1) serve to protect an owner's property while it is in the custody of the police, 2) insure against claims of lost, stolen, or vandalized property, and 3) guard the police from danger. Id. at 369. In light of these strong governmental interests and the diminished expectation of privacy in an automobile, the Court upheld the search. In reaching their decision, the Court observed the deference they have accorded in previous cases to the police caretaking procedures designed to secure and protect vehicles and their contents within police custody. Cooper v. California (1967), 386 U.S. 58, 61-62; Harris v. United States (1968), 390 U.S. 234, 236; Cady v. Dombrowski (1973), 413 U.S. 433. In these and other cases upon which the Court relied, the Court noted that a reasonable search under the Fourth Amendment is one carried out in accordance with standard police procedures thereby ensuring the intrusion will be limited in scope to the extent necessary to carry out the caretaking function. Id. at 375. -6- Subsequently, in Coloradov. Bertine (1987), 479 U.S. 367, the United States Supreme Court held evidence found in a closed backpack during an inventory search was admissible. In concluding that reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, the court noted: "Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit." [Illinois v. Lafayette (1983), 462 U.S. 640, 648.] "When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand." [United States v. Ross (1982), 456 U.S., 798, 821.] The United States Supreme Court again addressed the reasonableness of an inventory search in Florida v. Wells (1990), 495 U.S. 1. In that case, the Court held that absent a policy with respect to the opening of closed containers during an inventory search, an inventory search which involved the opening of a locked suitcase was not sufficiently regulated to satisfy the Fourth Amendment. Id. at 5. The Court reasoned: Our view that standardized criteria, ***, or established routine, must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual officer must not be allowed so much latitude that inventory searches are turned into a purposeful and -7- general means of discovering evidence of a crime. Bertine, supra at 376 (Blackmun, J., concurring). But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical all or nothing fashion ***. A police officer should be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exterior. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. (Emphasis in the original). It is clear that pursuant to Opperman, supra, and its progeny, inventory searches must be conducted in good faith and in accordance with reasonable inventory policy. Moreover, since the inventory policy should be limited in scope, to the extent necessary to carry out the caretaking function, an officer is not permitted to open a closed container if said inventory policy does not permit the opening of closed containers. These principles were accepted and accurately set forth in State v. Hathman (1992), 65 Ohio St.3d 403, where the Ohio Supreme Court held in paragraphs one and two of the syllabus: 1. To satisfy the requirements of the Fourth Amendment to the United States Constitution, an inventory search of a lawfully impounded vehicle must be conducted in good faith and in accordance with reasonable standardized procedure(s) or established routine. (Citations omitted) (Emphasis added.) 2. If, during a valid inventory search of a lawfully impounded vehicle, a law enforcement official discovers a closed container, the container may only be opened as part of the inventory process if there is in existence a -8- standardized policy or practice specifically governing the opening of such containers. (Citations omitted). In this case, it has been concluded: 1) that there is no distinction between compartments and containers; and 2) that the guidelines for Lakewood's inventory policy are ambiguous on their face since it does not address what to do with closed, unlocked compartments. First, in this case we are not dealing with a closed container but rather with an open (unlocked) compartment. In the context of an inventory search, this is a distinction that makes a difference. Section 9.1.1 of the Lakewood Inventory Procedure states in part: [t]he opened compartments of the vehicle are to be searched. Locked compartments shall not be opened by the officer during a standard inventory. Hathman does not stand for the proposition that in order for an inventory policy to be reasonable under the Fourth Amendment, it must address a situation of closed containers or compartments. It merely states that an officer would not be permitted to open a closed container found in the car during the search if such action were not permitted in their inventory policy. See, also, State v. McCullough (Sept. 2, 1993), Cuyahoga App. No. 63487. Hathman requires a standardized inventory procedure or an established routine. In this case, we have a reasonable police regulation relating to inventory procedures. So long as these procedures have been carried out in good faith, the requirements of the Fourth Amendment have been satisfied even if this court, in hindsight, may be able to devise equally reasonable rules requiring a different procedure. -9- See Bertine, supra at 742. Contrary to the majority's conclusion, I believe the policy is clear and unambiguous as it pertains to the search of an open center console which is by definition a compartment. It is suggested that containers are treated the same as compartments and are therefore afforded the same protection. Thus, if an officer cannot open/search a closed container, he cannot open/search a closed compartment. Defendant-appellee cites to United States v. Ross (1982), 456 U.S. 798 for support. In Ross, the Court held that a warrantless search of an automobile under the Carroll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause.2 The warrantless search of Ross' car occurred after an informant told the police that he had seen Ross complete a drug transaction using drugs stored in the trunk of his car. The police stopped the car, searched it, and discovered in the trunk a brown paper bag containing drugs. The Court decided that the search of Ross' car was not unreasonable under the Fourth Amendment: "The scope of a warrantless search based on probable cause is no narrower -- and no broader -- than the scope of a search authorized by a warrant supported by probable cause." Id. at 823. Thus, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id., at 825. 2 See Carroll v. United States (1925), 267 U.S. 132. -10- In Ross, therefore, the Court clarified the scope of the Carroll doctrine as properly including a "probing search" of compartments and containers within the automobile so long as the search is supported by probable cause. Id. at 800. See, also, California v. Acevedo (1991), 500 U.S. 565. In that context, the Court stated [c]ertainly the privacy interests in a car's trunk or glove compartment may be no less than those in a movable container ***. These interests must yield to the authority of a search ***. Id. at 823. I find defendant-appellee's argument unpersuasive and Ross, supra inapplicable to the case at hand. In Ross, the Court addresses the probable cause exception to the Fourth Amendment as it relates to movable vehicles. The policies behind warrant requirements are not implicated in an inventory search nor is the related concept of probable cause. Bertine, supra at 741.3 Inventory searches are not subject to the warrant requirement because they are conducted by the government as part of a community caretaking function, totally divorced from the detection, investigation, or acquisition of evidence relating the violation of a criminal statute. Cady v. Dombrowski(1973), 413 U.S. 433, 441. Again, in this case, we are dealing solely with the reasonableness of the inventory search. 3It is worth noting that although I do not find it applicable to this case, Ross, supra actually concludes that where an officer has probable cause to search a vehicle, he may search all compartments and movable containers that may contain the object of the search. See State v. Welch (1985), 18 Ohio St.3d 88. -11- Moreover, in the context of an inventory search, a distinction between compartments and containers can be found in the simple definition of each word. The American Heritage Desk Dictionary 1981, 210, defines Compartment as One of the parts or spaces into which an area is subdivided. It defines container as Anything, as a box, can, jar, or barrel, in which material is held or carried; receptacle. Id. at 226. Webster's Ninth New Collegiate Dictionary 1990, 268 defines compartment as A separate division or section; one of the parts into which an enclosed place is divided. It defines container as One that contains; a receptacle or a flexible covering for the shipment of goods. Id. at 282. Thus a center console is part of a vehicle, and in my mind's eye, constitutes an area of a vehicle which is normally searched during an inventory procedure similar to a glove compartment and/or trunk. In contrast, a container is an object, in and of itself, which can hold other objects and is movable. The majority of case law also supports and/or recognizes this distinction: Opperman, supra (Inventory search of unlocked glove compartment not unreasonable because thieves could have ready access to its contents); Bertine, supra (Search of containers found in a closed backpack reasonable since policy mandated opening of containers); Wells, supra (Search of locked suitcase found in trunk was unreasonable under Fourth Amendment since the opening of closed containers was not regulated by inventory policy); Hathman, supra (Since inventory policy did not permit opening of closed -12- containers, the search of pill bottles in a white plastic bag was improper);State v. Peagler (1996), 76 Ohio St.3d 496 (An inventory policy addressing the inventory of closed containers applies to a closed pill container); State v. Robinson (1979), 58 Ohio St.2d 478 (A pre-Hathmancase which held a standard inventory of the trunk of a lawfully impounded vehicle does not contravene the Fourth Amendment); State v. Congeni (1995), 104 Ohio App.3d 726 (Since there exists no policy regarding the opening of closed containers, opening a locked briefcase found in a trunk violates the Fourth Amendment); State v. Weinstein (1995), 69 Ohio Misc.2d 33 (Search of a closed Tupperware food container found in the door pocket was not justified since there was no policy permitting the opening of closed containers); State v. Bronaugh (1984), 16 Ohio App.3d 237 (Pre-Hathman case which held inventory search extends to glove compartment and trunk but only includes closed containers found within the trunk when the officer was acting in accordance with standard departmental procedures); State v. Jacks (Dec. 14, 1992), Butler App. No. CA92-05-091, unreported (Since inventory policy permitted search of locked compartment, the search of locked hatchback compartment was valid. Moreover, since policy permitted search of containers, search of paper bag found within compartment was valid); State v. Weaver (March 10, 1993), Tuscarawas App. No. 92AP090068, unreported (search of tin box found under a jacket was reasonable since inventory policy permitted opening unlocked containers); State v. Butler (Feb. 7 1996), Hamilton App. No. C- 950390, unreported (Officer's search of cosmetic kit located in -13- back seat reasonable since inventory policy permitted opening unlocked containers); State v. Jenkins (July 5, 1990), Cuyahoga App. No. 57220, 57221, unreported (Search of paper bags found in truck was reasonable since evidence established the search was done in accordance with standardized police procedure). Finally, I cite to State v. Brose (June 13, 1994), Warren App. No. CA93-12-103, unreported, which is closely analogous to this case. There, a defendant was pulled over and eventually arrested for driving under the influence of alcohol. After a tow truck was called, the officer conducted an inventory search and discovered drugs inside the closed, unlocked center console, between the two front seats. On appeal, the defendant argued, among other things, that the inventory search was unreasonable. The appellate court stated that the inventory procedure of the police department was not to open closed containers, but to search everything else. The court went on to hold: Under Ohio law, if a police officer discovers a closed container during an inventory search of a vehicle, the container may only be opened as part of the inventory process if there is in existence a standardized policy or practice specifically governing the opening of such containers. See Hathman, supra. However, appellant's reliance upon Hathman is misplaced. The drugs discovered during the inventory search were found in the console between the front seats of appellant's vehicle. The console is part of the vehicle itself, analogous to a trunk or glove compartment, and thus is not a closed container for purposes of an inventory search. See id. (Distinguishing between closed containers, which require a specific standardized policy governing their opening, and areas (or parts) of a vehicle which are normally searched, i.e., the interior, trunk, glove box, ect. which do not). (Emphasis added.) -14- The only way to effectuate the purpose of an inventory search, i.e., to protect the owner's property, to ensure against claims of lost, stolen, or vandalized property, and to guard police from danger, is to open and search these parts of the vehicles. (Citations omitted). Furthermore, other courts have upheld the validity of searches of console areas of automobiles pursuant to routine inventory searches. See, e.g., State v. Conforti (Nov. 29, 1990), Cuyahoga App. No. 59474, unreported; State v. Borgelt (July 26, 1976), Hamilton App. No. C75541, unreported. The appellate court concluded that the inventory search and the subsequent seizure of the contraband found in defendant's console were reasonable. Id. at 3. See, also, State v. Lesak (Sept. 28, 1995), Cuyahoga App. No. 68198, unreported (Handgun found in center console during inventory search was admissible since officer testified inventory was done in accordance with standard policy). For all the above stated reasons, I find there is an important distinction between a compartment and a container when reviewing the validity of an inventory policy. Secondly, the majority holds that the guidelines for Lakewood's inventory policy are ambiguous on their face since it does not address what action to take concerning closed, unlocked compartments. Section 9.1.1 of Lakewood's Inventory Policy must be read in totem. The meaning of open compartment is apparent in the context of Section 9.1.1 and the use of open instead of unlocked does not render the policy ambiguous. More importantly, the provision relative to open compartments and locked -15- compartments clearly differentiates compartment from container. 4 At the hearing, two of the three officers called to the stand testified that, pursuant to Lakewood's standardized procedure and/or established routine, an open compartment would include a glove box or center console that was not locked. The officer who conducted the inventory stated that he believed his inventory of the vehicle complied with the City's inventory requirements. Moreover, when reading Section 9.1.1 of the Lakewood Inventory Procedure, it stands to reason that an open compartment means an unlocked compartment. The majority attempts to demonstrate the ambiguity of Lakewood's inventory policy by referring to the inventory policy reviewed in State v. Peagler, supra. However, not only does the policy in Peagler recognize the distinction between compartments and containers , but it cannot be read to mandate that an inventory policy must distinguish between open and unlocked compartments. While the inventory policy in Peagler may be more specific, it does not invalidate the inventory policy at issue in this case. Again, all that is necessary is a reasonable police regulation relating to inventory procedures. Hathman, supra. So long as these procedures have been carried out in good faith, the requirements of the Fourth Amendment have been satisfied even if this court, in 4Moreover, it appears from the majorities opinion that the distinction between open and unlocked was not vital to their analysis. -16- hindsight, may be able to devise equally reasonable rules requiring a different procedure. See Bertine, supra at 742. Accordingly, I believe there is an important distinction between compartments and containers in the context of an inventory search. Section 9.1.1 of Lakewood's inventory policy, which mandates opened compartments of the vehicle are to be searched, is a reasonable police regulation which satisfies the requirements of the Fourth Amendment. Finally, defendant-appellee asserted that the officers violated another portion of the policy mandating the inventoried property be listed in a separate report (sec. 9.1.1.3) and that the property be noted on the tow-release form. In this case, there is no dispute that the officer did not prepare an inventory list form or list the property on the tow-release form. All the property, however, was listed in a supplemental property sheet report written at the booking window. In an effort to clarify the testimony of the officer who conducted the inventory search, the trial court asked, [d]id you file a report with respect to what you observed when you examined the automobile? The officer answered in the affirmative. When asked if that is what the supplemental report was, he again answered in the affirmative. To conclude that the listing of the contents of the inventory search on a supplemental report form instead of a inventory list constitutes a violation of the policy places form over substance. The after-the-fact violation is a mere technicality that cannot -17- invalidate an otherwise reasonable inventory search. To put it differently, the requirement that the items inventoried be written on an inventory sheet and/or tow list does not rise to the level of a constitutionally protected right. The practice of reporting the fruits of an inventory search are ministerial. It was explained to the court by the officer that the reason the items were not listed in an inventory sheet was due to the fact that they were subsequently put into the property room and were listed on the supplemental report form.5 Thus the failure to list the items on the inventory sheet was not due to either bad faith or for the purpose of investigating that which would be prohibited under the standardized procedures. See State v. Addy (Feb 27, 1997), Franklin App. No. 96APA08-1098, unreported. Again, the test for an inventory search is whether it was conducted in good faith and in accordance with reasonable standardized procedures. Hathman, supra. In this case, there is no question the officer acted in good faith and that he acted in conformity with Lakewood's inventory policy regarding the opening of closed compartments. While I am mindful that defendant-appellee has been acquitted of the underlying charges which gave rise to the inventory search, that does not change the fact that a loaded 9mm Baretta semi-automatic pistol with 15 high velocity hollow point rounds of ammunition was discovered during the valid inventory search of his vehicle. There is simply no evidence that the 5There is no claim that any items inventoried from the vehicle were not listed in the booking sheet or misplaced in any manner. -18- inventory search was a pretext concealing an investigative motive. For the foregoing reasons, I believe the trial court erred in .