State v. Calvin , 2015 Ohio 4801 ( 2015 )


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  • [Cite as State v. Calvin, 
    2015-Ohio-4801
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    HANCOCK COUNTY
    STATE OF OHIO,
    CASE NO. 5-15-17
    PLAINTIFF-APPELLEE,
    v.
    SAUDI CALVIN,                                             OPINION
    DEFENDANT-APPELLANT.
    Appeal from Hancock County Common Pleas Court
    Trial Court No. 2014-CR-00138
    Judgment Affirmed
    Date of Decision: November 23, 2015
    APPEARANCES:
    Kenneth J. Rexford for Appellant
    Elizabeth H. Smith for Appellee
    Case No. 5-15-17
    WILLAMOWSKI, J.
    {¶1} Defendant-appellant, Saudi Calvin (“Calvin”), brings this appeal from
    the judgment of the Common Pleas Court of Hancock County, Ohio, denying his
    motion to suppress, finding him guilty of aggravated possession of drugs, a felony
    of the third degree in violation of R.C. 2925.11(A), and sentencing him to twenty-
    four months in prison. For the reasons that follow, we affirm the trial court’s
    judgment.
    Factual and Procedural Background
    {¶2} The facts relevant to this appeal have been summarized in the trial
    court’s judgment entry as follows. On May 29, 2014,1 at approximately 1:20 a.m.,
    Calvin was pulled over for speeding by Sergeant Jacob Fletcher (“Sergeant
    Fletcher”) of the Ohio State Highway Patrol (“OSHP”). (R. at 53.) Sergeant
    Fletcher discovered that Calvin had been driving under suspension, and arrested
    him for the offense. Thereafter,
    [Sergeant Fletcher] decided to tow the vehicle since Defendant was
    an out-of-state resident and there was no other reasonable alternative
    nearby to handle safekeeping of the vehicle due to its location on
    Interstate 75 and the unknown length of time the vehicle would be
    unsupervised.
    Sgt. Fletcher began conducting an inventory of the vehicle. The
    Ohio State Highway Patrol mandates that its troopers complete an
    Administrative Inventory and Custody Report (State’s Exhibit l) any
    time a vehicle is taken by a person without the driver for the
    1
    A typographical error appears in the trial court’s Decision and Judgment Entry on page 3, stating that the
    events at issue occurred on May 9, 2014, which is inconsistent with the testimony and the record.
    (Compare R. at 53, at 3, with R. at 1, Indictment, and Tr. at 10-14.)
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    Case No. 5-15-17
    purposes of protecting the driver’s valuables and protecting the
    officers, tow drivers, or any third parties from liability for valuables
    contained within the vehicle.          Sgt. Fletcher filled out an
    Administrative Inventory/Custody Report in this matter. (State’s
    Exhibit 2). Sgt. Fletcher started at the front passenger compartment
    before moving on to the glove box, the rear passenger
    compartments, and the trunk. Defendant informed Sgt. Fletcher that
    the trunk was faulty and could only be opened by pulling a string
    which triggered a release of the trunk. Sgt. Fletcher attempted to
    pull the string, however the string broke and the trunk did not
    release. Sgt. Fletcher then pulled the back seat down and gained
    access to the trunk, where he obtained a bag of miscellaneous
    clothing and a plastic bag of white pills located within a tennis shoe
    located in a gym bag. The pills were later determined to be 120 pills
    of Oxycodone and 11 pills of Alprazolam. Defendant did not
    produce a valid prescription. The vehicle was then taken to the
    Findlay Post of the Ohio State Highway Patrol for an additional
    search as a result of the discovery of the pills. Defendant, Saudi
    Calvin, admitted that the pills belonged to him and that he had
    packed the pills in the gym bag.
    (Id. at 4.)
    {¶3} As a result of these events, Calvin was indicted on June 10, 2014, for
    aggravated possession of drugs in violation of R.C. 2925.11(A), a felony of the
    third degree. (See R. at 1.) Calvin filed a motion to suppress, arguing two
    grounds for suppression: unlawful arrest and unlawful search of his vehicle. (R. at
    31.) He eventually limited his arguments to the lawfulness of the search, alleging
    that the warrantless search of his vehicle was not within the scope of the inventory
    search exception to the warrant requirement, as was maintained by the State. (See
    R. at 49, at 2.)
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    {¶4} The parties appeared for a suppression hearing on February 9, 2015, to
    offer testimony of one witness, Sergeant Fletcher. The State submitted three
    exhibits: Exhibit 1, “A copy of the Ohio State Highway Patrol Policy Number
    OSP-200.10, titled Administrative Inventory and Custody Report”; Exhibit 2, “A
    copy of the Ohio State Highway Patrol Vehicle Inventory/Custody Report of a
    1999 Dodge Intrepid purportedly driven by Saudi Calvin dated May 29, 2014”;
    Exhibit 3, “A DVD disc of the traffic stop titled Saudi Calvin 5-29-14.” (See Tr.
    at 4, 65.) Additionally, closing briefs were filed after the hearing. (R. at 49, 50.)
    {¶5} The trial court denied the motion to suppress on March 2, 2015. (R. at
    53.) Subsequently, Calvin entered a plea of no contest and was found guilty of
    aggravated possession of drugs, a felony of the third degree in violation of R.C.
    2925.11(A). He filed a timely notice of appeal and presents one assignment of
    error for our review, as follows.
    The Trial Court erred by not suppressing the fruits of a
    warrantless search of Mr. Calvin’s vehicle, thereby denying to
    Mr. Calvin his rights to freedom from unreasonable searches
    and seizures as guaranteed to him by both the United States
    Constitution and the Ohio Constitution.
    Standard of Review
    {¶6} An appellate review of the trial court’s decision on a motion to
    suppress involves a mixed question of law and fact. State v. Burnside, 
    100 Ohio St.3d 152
    , 
    2003-Ohio-5372
    , 
    797 N.E.2d 71
    , ¶ 8; State v. Norman, 
    136 Ohio App.3d 46
    , 51, 
    735 N.E.2d 953
     (3d Dist.1999). We will accept the trial court’s
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    Case No. 5-15-17
    factual findings if they are supported by competent, credible evidence, because the
    “evaluation of evidence and the credibility of witnesses” at the suppression
    hearing are issues for the trier of fact. State v. Mills, 
    62 Ohio St.3d 357
    , 366, 
    582 N.E.2d 972
     (1992); Norman at 51; Burnside at ¶ 8. But we must independently
    determine, without deference to the trial court, whether these factual findings
    satisfy the legal standard as a matter of law because “the application of the law to
    the trial court’s findings of fact is subject to a de novo standard of review.”
    Norman at 52; Burnside at ¶ 8.
    {¶7} Under this standard of review, the trial court’s findings of fact recited
    above are accepted as true, as they are supported by competent and credible
    evidence adduced at the hearing. We thus proceed to analyze the legal issue of
    whether these facts support the trial court’s conclusion that Calvin’s constitutional
    rights were not violated in this case as a result of the warrantless search of his
    vehicle.
    Law and Analysis
    {¶8} It is well established that a warrantless search is per se unreasonable
    unless certain “specifically established and well delineated exceptions” exist. City
    of Xenia v. Wallace, 
    37 Ohio St.3d 216
    , 218, 
    524 N.E.2d 889
     (1988), quoting
    Coolidge v. New Hampshire, 
    403 U.S. 443
    , 454-455, 
    91 S.Ct. 2022
    , 
    29 L.Ed.2d 564
     (1971); Katz v. United States, 
    389 U.S. 347
    , 357, 
    88 S.Ct. 507
    , 
    19 L.Ed.2d 576
     (1967). The burden is on the state to establish that a warrantless search is
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    Case No. 5-15-17
    valid under one of these exceptions. State v. Williams, 3d Dist. Seneca No. 13-06-
    46, 
    2007-Ohio-5489
    , ¶ 19. One of the well-established exceptions, at issue in this
    case, is “[a]n inventory search of a lawfully impounded vehicle.”           State v.
    Hathman, 
    65 Ohio St.3d 403
    , 405, 
    1992-Ohio-63
    , 
    604 N.E.2d 743
     (1992).
    {¶9} The landmark case for the inventory search exception is S. Dakota v.
    Opperman, 
    428 U.S. 364
    , 
    96 S.Ct. 3092
    , 
    49 L.Ed.2d 1000
     (1976). There, the
    United States Supreme Court recognized “three distinct needs” that justify the
    inventory search exception to the warrant requirement: (1) “the protection of the
    owner’s property while it remains in police custody”; (2) “the protection of the
    police against claims or disputes over lost or stolen property”; and (3) the
    protection of the police and the public from potential danger. 
    Id. at 369
    ; see also
    
    id. at 376, fn. 10
     (“The protection of the municipality and public officers from
    claims of lost or stolen property and the protection of the public from vandals who
    might find a firearm, * * * or as here, contraband drugs, are also crucial.”); accord
    State v. Mesa, 
    87 Ohio St.3d 105
    , 109, 
    1999-Ohio-253
    , 
    717 N.E.2d 329
     (1999).
    {¶10} The Ohio Supreme Court has recognized that “the validity of an
    inventory search of a lawfully impounded vehicle is judged by the Fourth
    Amendment’s standard of reasonableness.” Mesa at 109, citing Opperman and
    Colorado v. Bertine, 
    479 U.S. 367
    , 
    107 S.Ct. 738
    , 
    93 L.Ed.2d 739
     (1987). In
    order to assure reasonableness of the inventory search, “an inventory search of a
    lawfully impounded vehicle must be conducted in good faith and in accordance
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    with reasonable standardized procedure(s) or established routine.” Hathman at
    paragraph one of the syllabus, citing Opperman, Bertine, and Florida v. Wells,
    
    495 U.S. 1
    , 
    110 S.Ct. 1632
    , 
    109 L.Ed.2d 1
     (1990); accord Blue Ash v. Kavanagh,
    
    113 Ohio St.3d 67
    , 
    2007-Ohio-1103
    , 
    862 N.E.2d 810
    , 812, ¶ 11.
    {¶11} The trial court in this case concluded that the State sufficiently
    proved this exception and satisfied the Opperman standard. Yet, Calvin argues
    that the exception for inventory search should not have been applied because this
    case did not involve an impoundment of his vehicle. He further suggests that the
    standardized procedures in place were not reasonable and they were not properly
    followed by Sergeant Fletcher. We address each challenge separately.
    1. Does the Case Involve an Impoundment?
    {¶12} The first argument on appeal concerns Sergeant Fletcher’s statement
    that Calvin’s vehicle was not going to be impounded, but only “towed for
    everyone’s well-being and safekeeping” into a private tow company’s lot. (Tr. at
    40:6-13; App’t Br. at 9.) Calvin suggests that towing does not fall within the
    inventory search exception to the warrant requirement because it involves a mere
    “assistance,” rather than “taking control of the vehicle.” (App’t Br. at 9-10.) He
    thus draws a distinction between the terms “tow” and “impound,” claiming that a
    mere tow “is not the same trigger for the claimed inventory search” and that only
    the situations that give the law enforcement “physical possession of the vehicle”
    create an “impoundment” and fall into the inventory search exception.        (Id.)
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    Case No. 5-15-17
    Under this reasoning, until Sergeant Fletcher decided that the vehicle was destined
    for the patrol post or a police-owned and operated impound lot, no justification for
    an inventory search existed. (See id.)
    {¶13} Our review of the record and the case law does not support a legal
    distinction between the two terms. In fact, research indicates that the terms “tow”
    and “impound” are often used interchangeably, to refer to various situations when
    law enforcement officials take a vehicle out of the control of the driver or owner.
    {¶14} We recognize that during cross-examination Sergeant Fletcher
    admitted that there is “a difference between a tow and an impound [sic],” and that
    a vehicle can be towed “without impounding.” (Tr. at 39:2-4.) Yet, no specific
    explanation was given for the distinction,2 and according to Sergeant Fletcher,
    both situations require inventory search, which should be performed any time the
    police take “custody of a vehicle.” (Tr. at 51:15-17.) Sergeant Fletcher further
    described situations in which an administrative inventory of a vehicle is
    performed, as follows:
    Any time we take custody of it or any time we take the Defendant
    we, I guess basically, for lack of better terms, take it from the
    Defendant. I guess in a sense any time we impound a car. Any time
    a tow truck comes to the scene of the crash or a traffic stop and takes
    the vehicle and either the owner or the driver at the time does not go
    with them with the vehicle, if they are separated, we are required to
    do a vehicle inventory of that vehicle.
    2
    Some explanation can be gained from State’s Ex. 3, where Sergeant Fletcher can be heard explaining to
    Calvin that his car was not going to be impounded but towed, which meant that he would be able to get the
    car upon release from jail. (Ex. 3 at minute 18:13-18:23.)
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    Case No. 5-15-17
    (Emphasis added.) (Tr. at 24:1-9.) When later referring to Exhibit 2, Vehicle
    Inventory/Custody Report, Sergeant Fletcher stated that the document is used for
    “different reasons why we’re towing it, taking custody of it, removing it from the
    roadway.” (Tr. at 25:10-12.) On cross-examination, Sergeant Fletcher further
    reiterated, “any time I take custody of someone’s vehicle, whether it’s at a traffic
    crash, whether it’s -- * * * -- when we’re taking the vehicle from people we need
    to document the items of value.” (Tr. at 49:12-16.) Sergeant Fletcher testified
    that the towing procedures in place involve calling a dispatcher, who assigns a
    towing company from “multiple tow companies that are set up on a rotation * * *
    through the computerized dispatching system.”         (Tr. at 20:6-9.)    The above
    explanation does not distinguish between a tow by a private towing company and
    a tow by some sort of a police-operated tow truck. On the contrary, it implies that
    the OSHP procedure for impounding or towing a car involves calling a dispatcher
    who assigns a private towing company from the “multiple tow companies that are
    set up on a rotation.” (Tr. at 20:6-7.)
    {¶15} Sergeant Fletcher’s testimony is consistent with the OSHP written
    policy, which does not distinguish between towing for the purpose of safekeeping
    and towing for the purpose of impounding. (See Ex. 1, Policy No. OSP-200.10 §
    (A)(4); see also Tr. at 40:15-24.) This policy indicates that an administrative
    inventory is necessary whenever officers “remove motor vehicles or other property
    from the scene to a location of greater security.” (Id.) Therefore, it implies that an
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    Case No. 5-15-17
    action of having the vehicle towed under the direction and control of the police
    officer, be it to the patrol post or to the towing company’s lot, is treated the same
    way by the OSHP for the purpose of the administrative inventory of the car,
    whether formally labeled as an impoundment or not.
    {¶16} Although the exact question presented before us has not been
    addressed before, Ohio case law supports a conclusion that any time a vehicle is
    “properly in police custody,” it may be subject to an inventory search “pursuant to
    standard police policy or practice.”     State v. Arbuckle, 9th Dist. Lorain No.
    94CA005823, 
    1995 WL 134751
    , *2 (Mar. 29, 1995). In Arbuckle, the defendant
    was arrested for driving without a license and for having an expired license plate.
    Id. at *1. The police officer began an inventory search of the defendant’s vehicle
    “in preparation for having it towed.” Id. After heroin was discovered during the
    search, the defendant moved for suppression. Id. at *2. The question on appeal
    concerned the definition of the word “impound” and the defendant argued “that a
    vehicle is not ‘impounded’ until it is placed” in one of the areas designated for the
    storage of impounded vehicles. Id. at *3. He claimed that in his case, the vehicle
    “was searched before it was ‘impounded.’ ” Id. at *2. The Ninth District Court of
    Appeals looked into the definition of the word “impound” and concluded that
    Defendant’s van was “impounded” at the point the officer decided
    that defendant was not going to be permitted to drive it from the
    scene and that instead it was going to be towed to one of the
    locations where the department kept impounded vehicles.
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    Case No. 5-15-17
    Id. at *3; see also State v. Fry, 9th Dist. Summit No. 16718, 
    1994 WL 700089
    , *2
    (Dec. 14, 1994), fn. 3 (“ ‘Impound’ means ‘[t]o seize and take into the custody of
    the law or of a court.’ Black’s Law Dictionary (6 Ed. Rev.1990) 756.”). Although
    Arbuckle focused on determining when the impoundment giving rise to the search
    officially begins, the reasoning applied by the Ninth District Court of Appeals, is
    applicable to this case.
    {¶17} The Ohio Supreme Court’s reasoning, in a case almost factually
    identical to the instant matter, also supports the definition of “impoundment,” as it
    is used by the OSHP and advanced by the State. See State v. Robinson, 
    58 Ohio St.2d 478
    , 
    391 N.E.2d 317
     (1979). In Robinson, the defendant was pulled over for
    speeding and arrested upon a discovery that he had a suspended driver’s license.
    
    Id.
     at syllabus. “[A] tow truck was summoned for the purpose of transporting
    appellee’s vehicle to a commercial storage lot for impoundment.” (Emphasis
    added.) 
    Id.
     “Prior to the arrival of the truck, the arresting officer procured a
    standard inventory form from his police cruiser and began a custodial inventory of
    appellee’s automobile.” 
    Id.
     In the vehicle’s trunk, the officer found a large
    amount of marijuana. 
    Id.
     The issue for suppression concerned lawfulness of the
    “inventory search of the trunk.” Id. at 480. Without expressly distinguishing
    between a tow to a private company’s lot and a tow to the police-owned or police-
    operated storage facility, the Ohio Supreme Court described the situation as one
    involving “a lawfully impounded automobile.” Id. at 479, 480.
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    {¶18} We have found no Ohio cases supporting Calvin’s position,3 but
    many other cases that treat the action of lawfully towing a defendant’s vehicle at
    the direction and control of a police officer upon an arrest of the vehicle’s sole
    occupant as equivalent to the impoundment for the Fourth Amendment purposes.
    For example, in State v. Kemp, 8th Dist. Cuyahoga No. 95802, 
    2011-Ohio-4235
    ,
    the defendant was arrested for driving with a suspended license. Id. at ¶ 6. A
    private tow company was called to take the vehicle to the impound lot. Id. The
    Eighth District Court of Appeals applied the inventory search exception to the
    case, holding that “the police had proper justification to search the car prior to
    towing it.” (Emphasis added.) Id. at ¶ 19. No distinction was made between the
    terms “tow” and “impound,” and the use of a private towing company did not
    convert the situation to one outside of the inventory search exception.
    {¶19} In State v. Hoke, 2nd Dist. Champaign No. 07-CA-01, 2008-Ohio-
    757, the vehicle was never impounded. In that case, a police officer “initially
    decided he was going to have Hoke’s truck towed” and searched the vehicle
    “pursuant to his department’s inventory policy.”                     Id. at ¶ 11.        It was later
    determined that the defendant’s father was able to take the defendant and the
    3
    Even the case from Louisiana, cited by Calvin in his Brief at 10, does not support his proposition. See
    State v. Dorociak, 
    493 So.2d 173
     (La.App.1986). In Dorociak, the court focused on reviewing the officer’s
    actions and held that, under the totality of the circumstances, they did not support a conclusion that the
    officer was performing an inventory search because they were insufficient to achieve the purpose of
    “protecting the occupant from loss of valuables,” the “tow truck was not called before the search
    commenced,” and “[f]ormal impoundment practices were not followed for, at the time the officer looked in
    the window the car was not going to be impounded but merely towed.” Id. at 176. The fact that the car
    was supposed to be “merely towed” was one of the factors that allowed the court to determine that the
    police officer had engaged in an unreasonable investigatory search rather than an inventory of the
    defendant’s vehicle. See id. at 176.
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    Case No. 5-15-17
    vehicle home, and the vehicle was released. Id. The inventory search performed
    pursuant to the initial decision to have the vehicle towed was found to have been
    proper.   Id. at ¶ 9-12.    Of note, the terms “tow” and “impound” were not
    distinguished, but were used interchangeably throughout the opinion. Compare id.
    at ¶ 5 (“[t]he officers decided to impound the pickup truck”) with id. at ¶ 11
    (“Sergeant Reese testified he initially decided he was going to have Hoke’s truck
    towed”) (emphasis added); see also State v. Broughton, 8th Dist. Cuyahoga No.
    88974, 
    2007-Ohio-5067
    , ¶ 4-18 (holding that the police officers did not violate the
    defendant’s Fourth Amendment rights when they inventoried the vehicle prior to it
    being towed).
    {¶20} We further note that the policy in support of the inventory search
    exception, as outlined by the United States Supreme Court in Opperman, applies
    to the instant case, irrespective of whether a private tow truck and lot or a police-
    operated tow truck and lot are used. See 
    428 U.S. at 369
    , 
    96 S.Ct. 3092
    , 
    49 L.Ed.2d 1000
    . The property left in the vehicle is subject to the same risk of being
    lost or stolen, and the dangerous items in the vehicle are potentially harmful to the
    public, whether they are in the physical custody of the police or the towing
    company at the direction and control of the police. See Cady v. Dombrowski, 
    413 U.S. 433
    , 
    93 S.Ct. 2523
    , 
    37 L.Ed.2d 706
     (1973). In Dombrowski, which was
    decided prior to Opperman and its recognition of the inventory search exception,
    the defendant’s “automobile was towed to a private garage,” “[a]t the direction of
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    the police, and for elemental reasons of safety.” (Emphasis added.) 
    Id. at 443
    .
    The United States Supreme Court noted that although “[t]he police did not have
    actual, physical custody of the vehicle * * * [,] the vehicle had been towed there at
    the officers’ directions.” 
    Id. at 446
    . The court held that “the type of caretaking
    ‘search’ conducted here of a vehicle that was neither in the custody nor on the
    premises of its owner, and that had been placed where it was by virtue of lawful
    police action, was not unreasonable solely because a warrant had not been
    obtained.” 
    Id. at 447-448
    . The court expressly recognized “concern for the safety
    of the general public” and held that “[t]he fact that the protection of the public
    might, in the abstract, have been accomplished by ‘less intrusive’ means does not,
    by itself, render the search unreasonable.” 
    Id. at 447
    . Similarly applicable are
    concerns for protecting the defendant’s property and protecting the public servants
    from claims over the property, whether public or private service providers are used
    at the direction of the police. See Opperman at 369.
    {¶21} A review of the state and federal law concerning an administrative
    inventory search of a vehicle prior to having it towed brings a unanimous
    conclusion that Calvin’s vehicle was “impounded,” as this term is used for the
    purpose of the Fourth Amendment analysis. We therefore proceed to analyze
    Calvin’s remaining contentions, which concern the OSHP’s procedures in place
    for conducting an inventory search of vehicles.
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    Case No. 5-15-17
    2. Was the Decision to Tow Reasonable?
    {¶22} Calvin next argues that the OSHP did not have an “intelligible
    policy” for impounding or towing vehicles. (App’t Br. at 11.) He thus claims that
    the mandate that the police follow standardized procedures or established routine
    is not satisfied in this case. See Opperman 
    428 U.S. at 375
    , 
    96 S.Ct. 3092
    , 
    49 L.Ed.2d 1000
    . Calvin relies on a case from the Second District Court of Appeals
    and its holding that an impoundment “ ‘policy,’ ” which “left the decision of
    whether to tow an arrested suspect’s vehicle completely up to the arresting
    officer’s discretion,” violated the requirements of the Fourth Amendment.
    (Emphasis added.) State v. Myrick, 2nd Dist. Montgomery No. 21287, 2006-
    Ohio-580, ¶ 27. In Myrick, there was no written policy submitted to the trial court
    and the testimony indicated that “even if the Trotwood Police possessed a written
    tow policy, the decision to tow a vehicle [was] not based on an objective,
    standardized set of criteria,” but was “based on the whim of the arresting officer.”
    Id. at ¶ 23.
    {¶23} Here, Sergeant Fletcher admitted that there is no “official policy” or
    a “manual” that would be designed “specifically for” the determination on whether
    to tow or not. (Tr. at 38:21-25, 41:4-7, 53:12-15.) Yet, he referred to the written
    policy submitted by the State, which directs the police officers “to remove motor
    vehicles or other property from the scene to a location of greater security” in the
    situations of “abandonment, traffic crashes, criminal investigations and certain
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    Case No. 5-15-17
    arrest actions.” (Ex. 1, § (A)(3).) Sergeant Fletcher testified that this policy is
    used when making decisions on whether to have a vehicle towed, and it deals with
    “the reasons that we tow the vehicle.” (Tr. at 23:13-18.) Thus, this case is
    distinguishable from Myrick.     Here, although there is discretion to determine
    whether a vehicle tow is necessary in any given situation, the decision is made
    pursuant to a written policy of the OSHP and it is based on the totality of the
    circumstances and the officer’s experience, not on the unfettered discretion of the
    police officer. (See Tr. at 21:14-22:5, 53:9-10; Ex. 1.)
    {¶24} The United States Supreme Court expressly sanctioned the use of
    fettered police discretion in deciding whether to impound the vehicle.
    Nothing in Opperman or Lafayette prohibits the exercise of police
    discretion so long as that discretion is exercised according to
    standard criteria and on the basis of something other than suspicion
    of evidence of criminal activity. Here, the discretion afforded the
    Boulder police was exercised in light of standardized criteria, related
    to the feasibility and appropriateness of parking and locking a
    vehicle rather than impounding it. There was no showing that the
    police chose to impound Bertine’s van in order to investigate
    suspected criminal activity.
    Bertine, 
    479 U.S. at 375-376
    , 
    107 S.Ct. 738
    , 
    93 L.Ed.2d 739
    . Only unfettered
    discretion is unreasonable and the case before us, does not involve such a
    situation. See United States v. Arrocha, 
    713 F.3d 1159
    , 1163 (8th Cir.2013) (“The
    requirement that discretion be fettered, however, has never meant that a decision
    to impound must be made in a ‘totally mechanical’ fashion.... It is not feasible for
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    Case No. 5-15-17
    a police department to develop a policy that provides clear-cut guidance in every
    potential impoundment situation...”).
    {¶25} Calvin asserts that the OSHP wording is “ineffective to establish a
    reasonable tow/impound policy.” (App’t Br. at 11.) Yet, this policy, and its
    application in Calvin’s case, is consistent with the well-established principle that
    “[t]he authority of police to seize and remove from the streets vehicles impeding
    traffic or threatening public safety and convenience is beyond challenge.”
    Opperman, 
    428 U.S. at 369
    , 
    96 S.Ct. 3092
    , 
    49 L.Ed.2d 1000
    . The Second District
    Court of Appeals in the case on which Calvin relies recognized this authority,
    noting that “ ‘[a] car may be impounded if it is evidence in a criminal case, used to
    commit a crime, obtained with funds derived from criminal activities, or
    unlawfully parked or obstructing traffic; or if the occupant of the vehicle is
    arrested.’ ” (Emphasis omitted.) Myrick, 2nd Dist. Montgomery No. 21287,
    
    2006-Ohio-580
    , at ¶ 25, quoting State v. Taylor, 
    114 Ohio App.3d 416
    , 
    683 N.E.2d 367
     (1996); see also Kavanagh, 
    113 Ohio St.3d 67
    , 
    2007-Ohio-1103
    , 
    862 N.E.2d 810
    , at ¶ 13, quoting R.C. 4513.61. Therefore, the policy based on this
    well-recognized authority is reasonable. Furthermore, there is no dispute that
    Calvin’s vehicle was stopped on a busy highway and that Calvin was arrested and
    unable to remove the vehicle from the highway.          Thus, the decision to tow
    Calvin’s vehicle was in compliance with the OSHP’s reasonable procedures in
    place.
    -17-
    Case No. 5-15-17
    {¶26} We hold that Sergeant Fletcher’s decision to tow Calvin’s vehicle
    was reasonable under the circumstances.
    3. Was the Trunk Search Reasonable?
    {¶27} Calvin’s last contention is based on the method in which Sergeant
    Fletcher searched the trunk of the vehicle. The OSHP policy OSP-200.10, states:
    The following areas should be checked for items of value:
    ***
    Trunk area, to include any side panel compartment and under the
    spare tire (when the trunk key is available, unless exigent
    circumstances exist or probable cause exists to indicate items of
    value are present).
    (Ex. 1 § 8.) Calvin submits that “[i]n the instant case, no trunk key was available”
    and therefore, Sergeant Fletcher did not comply with the OSHP procedures,
    making the search unreasonable. (App’t Br. at 13.)
    {¶28} Sergeant Fletcher testified that he had a key, but “there was no button
    on the key fob that would open the trunk.” (Tr. at 36:13-14.) He did not recall
    whether there was “a place on the outside of the trunk for where you would put a
    key in.” (Tr. at 36:15-17.) The record is thus unclear on the issue of whether the
    “trunk key” was available.4 It is clear, however, that due to the faulty mechanism
    for opening the trunk, the key would have been useless for opening the trunk and
    4
    We note that on the video of the stop, Sergeant Fletcher is seen manipulating by the trunk and appears to
    be inserting a key into the trunk of Calvin’s vehicle. (See Ex. 3, at minute 26:05-26:16.) This would
    indicate that the trunk key was present and the OSHP procedures were thus satisfied in their literal reading.
    But because no finding of fact that there was a trunk key was made by the trial court, we will not use this
    observation to determine the outcome of this case.
    -18-
    Case No. 5-15-17
    that an alternative method for opening the trunk was being used.           In these
    circumstances, strict compliance with the search procedures was not possible.
    {¶29} But strict compliance is not required to satisfy the reasonableness
    standard of the Fourth Amendment. See State v. Goodin, 4th Dist. Athens No.
    99CA29, 
    2000 WL 134733
    , *5 (Jan. 28, 2000) (“failure to strictly comply with the
    policies regarding inventory searches does not in itself invalidate the inventory
    search of appellant’s automobile”); State v. Addy, 10th Dist. Franklin No.
    96APA08-1098, 
    1997 WL 84649
    , *3 (Feb. 27, 1997) (“The search, as the trial
    court noted, was in substantial compliance with police procedures; the deviation
    did nothing to impair the reasonableness of the procedures employed. As a result,
    the search of defendant’s vehicle did not violate his rights under the United States
    or Ohio Constitutions.”). As we noted above, “[i]t is not feasible for a police
    department to develop a policy that provides clear-cut guidance in every potential
    impoundment situation... .” Arrocha, 713 F.3d at 1163. That is why the United
    States Supreme Court stated that “ ‘[t]he test of reasonableness cannot be fixed by
    Per se Rules.’ ” Opperman at 373, quoting Coolidge, 
    403 U.S. at 509-510
    , 
    91 S.Ct. 2022
    , 
    29 L.Ed.2d 564
     (Black, J., concurring and dissenting). Where, as here,
    a police officer is faced with a situation that is not expressly covered by the
    written policy, the reasonableness of the case “ ‘must be decided on its own facts.’
    ” 
    Id.
    -19-
    Case No. 5-15-17
    {¶30} Although the written policy in this case did not cover situations in
    which a trunk key is not usable or not needed, other sections of the policy provide
    guidance on how to determine which areas and containers should be searched in
    various situations. Section 5, Scope of Inventory, states,
    The scope of the inventory and the level of security for the property
    which is inventoried is the responsibility of the officer whose
    signature appears on the appropriate inventory report.
    (Ex. 1.) Section 7, which addresses closed containers, states,
    Recent court opinions have indicated that closed containers may be
    inventoried. This includes locked and unlocked luggage and
    briefcases as well as other closed, sealed, or taped containers.
    Should a key be available, locked containers should be opened and
    the contents inventoried. Should a key not be available, the decision
    to open locked containers should be based on the totality of the
    circumstances and whether the contents of the container can be
    determined by the container’s exterior.
    (Emphasis added.) (Id.) Additionally, section 8, which describes the area of
    inventory, states that the passenger compartment of a motor vehicle should be
    checked for items of value. “The passenger compartment is defined as any place
    the occupant can reach without exiting the vehicle.” (Id.)
    {¶31} Therefore, the procedures in place required Sergeant Fletcher to
    secure any property within Calvin’s vehicle or be responsible for it. (See Ex. 1 §
    5.) The procedures further allowed Sergeant Fletcher to decide to open any locked
    container based on the totality of the circumstances (see id. § 7), and mandated a
    search of “any place the occupant can reach without exiting the vehicle” (id. § 8).
    -20-
    Case No. 5-15-17
    We believe that Sergeant Fletcher properly followed these procedures when faced
    with the totality of the circumstances in this case. Because Calvin’s trunk was
    accessible from the interior of the vehicle without a key, searching the trunk to
    secure the items within it was not unreasonable. See Opperman at 376, fn. 10
    (“once the policeman was lawfully inside the car to secure the personal property in
    plain view, it was not unreasonable to open the unlocked glove compartment, to
    which vandals would have had ready and unobstructed access once inside the
    car”).
    {¶32} For all of the foregoing reasons, we hold that the trial court did not
    err in denying Calvin’s motion to suppress and we overrule the assignment of
    error on appeal.
    Conclusion
    {¶33} Having reviewed the arguments, the briefs, and the record in this
    case, we find no error prejudicial to Appellant in the particulars assigned and
    argued. The judgment of the Common Pleas Court of Hancock County, Ohio is
    therefore affirmed.
    Judgment Affirmed
    ROGERS, P.J. and PRESTON, J., concur.
    /hlo
    -21-