IN THE SUPREME COURT OF OHIO

STATE OF OHIOCUYAHOGA COUNTY

CASE NO.: 2007-2012

Plaintiff/Appellee

vs.

EFREN ODAVAR

Defendant/Appellant

CLAIMED APPEAL OF RIGHT

An Appeal from the Eighth DistrictCourt of Appeals for Cuyahoga CountyCotttt of Appeals Case No.: 89029

MEMORANDLJM IN SUPPORT OF JURISDICTION FORDEFENDANT/APPELLANT, EFREN ODAVAR

Mary Elaine Hall, Esq, 0051832 (COUNSEL OF RECORD)645 Leader Building526 Superior AvenueCleveland, Ohio 44114216.696.1616; 216.696.1646 faxmaryh@apk.net

COLINSEL FOR DEFENDANT/APPELLANT, EFREN ODAVAR

William Mason, Esq, byPatrick Thomas, Esq. 0075276 (COUNSEL OF RECORD)Cuyahoga County Pt-osecutor's OfficeJustice Center, Ninth Floor1200 Ontario StreetCleveland, Ohio 44113216.443.7800

COUNSEL FOR PLAINTIFF/APPELLEE, CUYAHOGA COU m

DNOV 2 8 7007

CLERK OF COURTSUPREM OF OHIOzz=

TABLE OF CONTENTS

PaeeEXPLANTATION OF WHY THIS IS A CASE INVOLVESSUBSTANTIAL CONSTITUTITIONAL QUESTIONS ...... ................... ....1-3

STATEMENT OF THE CASE AND FACTS ...........................................3-6

ARGUMENTS IN SUPPORT OF PROPOSTIONS OF LAW ...................... 6-1 I

Proposition of Law No. 1: All persons are entitled to Mirandawarnings once they have been placedin "full custody" by the police underthe Federal Fifth Amendment andSection 10, Atticle I of the Ohio

Consti tution ................. ...... ... . ... .... .....6-7

Proposition of Law No. 2: All persons in Ohio are provided greaterprotection under Section 14, Article I ofOhio Constitution against warrantlessarrests for minor misdemeanors ................7-9

Proposition of Law No. 3: All statements and all physical evidenceseized from non-mirandized defendantsin Ohio are unconstitutional pursuant toSection 10, Article I of the OhioConstitu tion ....................... .......... .... ..9-10

CONCLUSION . ....... ....... .... .........................................................10-1 1

..C 'RT ATE OF SERVICE ................... ...................................... iu

State of Ohio v. Efren Odavar, Cuyahoga App. No.: 89029,2007-Ohio-5535 .........................................................................AppendixJournalized Opinion & Entry

ii

EXPLANATION OF WHY THIS CASE IS INVOLVES SUBSTANTIALCONSTITUTIONAL OUESTIONS

This cause presents the following questions for the Ohio Supreme court's review.

Whether the Eighth District Court of Appeals committed error in contravention of

Berkemer v. McCarty (1984), 468 U.S. 420 when it held that the defendant, Efren

Odavar was not in custody and therefore not entitlecl to his Miranda rights at the scene

when the record below proves he was placed "in custody" when he cante out of the BP

Station? [Tr. Pages 36-38].

Whether the Eighth District Court of Appeals committed error in contravention of

Stctte v. Brorvtt , 99 Ohio St.3d 323, 2003-Ohio-3931 and State v. Jones (2000), 88 Ohio

St.3d 430, 727 N.E.2d 886 and the Ohio Constitution Article I Section 14, when it held

"to the extent of that Jones relies upon the Fourth Antendment to the U.S. Constitution, it

is no longer authoritative regttrding warrantless arrests for ntinor misdemeanors See

page 11 footnote 2 of opinion].

Whether the appellate court's reliance upon the inventory search exception

conflicts with expandcd protection against the admissibility of both physical evidence and

statements when Miranda warnings are not given pursuant to this Court's holding in State

v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255? [See Record/Defense Exhibits A, B,C &

D, Ti-. pages 4-8 and Tr. pages 29-32]. In light of that, are the Parma Police

Department's standardized policies and procedures regarding inventory searches

constittttional?

Wttether Eiglith District Court of Appeals' holding that the Parma Police

Deparment's standardized procedures and policies, which allowed its officers to conduct

an inventory search incident to a tow, involving two niisdemeanors-- an outstanding

traffic warrant on the part of the driver and a drivers' license suspension on the part of

the passenger-owner can be used as a pretext to gather evidence of a conamission of a

felot{y, absent any exceptions underR.C. 2923.26(A), contravened Jones, Brown

and Section 14, Article I of the Ohio Constitution?

Whether the Parma Police Officers, acting under the color of its policies and

procedures, violated the defendant, Efren Odavar's Fifth Amendment right against self-

incriinination under Farris when they failed to read him his Mirandu rights at the scene

and delayed until they took him to the station? [Tr. Pages 9- I 1, 16-17, 29-32, 36-38 ]

Whether the continued use of these "standardized procedures", if in violation of

Farris, tramples the Fifth Amendment right against self-incrimination of all persons?

Whether the Eighth District Court of Appeals failed to analyse the evidence and

the record, which were presented and evaluated by the trial court below, that

showed the un-indicted driver, Jessica Holbrook, who was not the owner of the vehicle,

had no standing to consent the search of the defendant's automobile when he was not

present? [See Record-- Defendant's Supplemental Legal Brief in Sttpport of the Motion

to Suppress with R.C. 4501.01 and R.C. 4511.10 Attached].

Whether the plaintiff,'s,Cuyahoga County Proscecutor, as appellee, failure

to directly rebut tite defendant/appetlant, Efren Odavar's legal arguments that his Fourth

2

and Fifth Amendment rights were violated pursuant to Jones and Farris when they

omitted and left blank this issue on their Praecipe/Question 8 [See Record--Second

Motion to Dismiss Appellant, Cuyahoga Prosecutor's Appeal] and his failure to

respond to the defendant, Efren Odavar's Cross-Appellant Brief on the Fourth and

Fifth Amendment issues pursuant to Local Appellate Rule 16(A)(2), which states in

relevant part that there "shall be a total of four briefs" violated tlhe defendant's right to

procedural and substantive due process of law, constituted a waiver, which would have

allowed the trial court's judgment on the Fourth and Fifth Amendments to stand

unopposed?

The defendant/appellant, Efren Odavar respectfully argues that the Eighth District

Court of Appeals has conrmitted error in its application of the Ohio and Federal

Constitutions and the precedents laid down by the high court regarding the issues

discussed above and respectfully requests its review of thesc substantive constitutional

issues.

STATEMENT OF FACTS AND THE CASE

On the morning of May 11, 2006, around midnight, the defendant, Mr. Efren

Odavar was a passenger in a motor vehicle which he owned. The driver was Ms. Jessica

Holbrook. She began to driver erratically between lanes and failed to put her signal light

on as she was changing lanes. Partna Police Officer Ronald Milligan observed Ms.

Holbrooks' behavior and initiated a Terry stop near Ridge Road at Royalview and

Ridgewood Road by a BP gas station.

3

The defendant-passenger, Mr. Odavar was not under suspicion or in custody at the

point. He was free to go into the BP Gas Stadon and buy sonic cigarettes. He was not

present when the police officers questioned Ms. Holbrook or conducted the inventory

search while he was in the gas station. [Tr. Pages 28-29]

Officer Milligan ran a check on Ms. Hollbrook and discovered that she had an

outstanding warrant out on her for Parma Municipal Case No.: 06 TRD01451, arising out

of a finding of guilty for speeding on February 2, 2006, [Tr. Page 6 & Defense Exhibit C].

Ms. Holbrook was arrested for the outstanding traffic warrant and given another citation

for the current May I t'h incident. Ms. Holbrook, who was not the owner of the

automobile, gave her consent to search Mr. Odavar's car though he was not present.

Parma Police Officer Milligan, who had now been joined by Sgt. Haberkorn, conducted an

inventory search of the defendant's automobile. The officers found drug paraphernalia in

the console of the vehicle which separated the driver and the passenger.

All of this was going on while the def'ettdant was in the BP Gas Strttion. After

Mr. Odavar came out of the station, an officer said to him in so many words, "We are

going to take you for interrogation". The defendant was then put into the police car. The

officers did not ntirandize him at the scene but questioned him anyway. The de/endant-

passenger adtnitted that his drivers' licertse was ttnrler suspension and ntade other

statements. [Tr. pages 36-381.

Parma Police Detective Robert J. Kalal testified that it was police policy to

tnirandize suspects at the jail rather than when they are taken into custody at the s•cene.

[Tr. pages 9-16].

4

'1'he defendant, Mr. Odavar was arrested on May 11, 2006. On August 25, 2006,

he was indicted for drug possession--a violation of R.C. 2925.1 1, a felony of the fifth

degree. Jessica Holbrook, the dtiver of the automobile and present during the inventory

search, was never indicted for drug possession.

Defense counsel filed a Motion to Suppress and a Legal Brief in Support of the

Motion to Suppress on September 26, 2006. Counsel also filcd a Supplemental

Legal Brief in Support of His Motion to Suppress with R.C. 4501.01 and R.C. 4511. 10

Attached on September 27, 2006 and Supplemental Authority in Support of his Motion to

Suppress on October 19, 2006. Two Suppression Hearings were held. On October 31,

2006, the trial court heard witnesses' testimony and admitted evidence into the record.

On November 9, 2006, the trial court announced its decision granting the

defendant's Motion to Suppress. It held that, "The issue here is about whether or not

the defendant was mirandized once custody began, and the analysis by the Court does

begin when he is no longer free to leave. The testimony of the officer at the scene,

Milligan did not mirandize him. He said the sargeant released the defendant anddefendant

was walking to the store to buy cigarettes. This was in BP gas station where the car was

initially stopped, that they told him they were going to tow the car because he didn't have

a driver's license, or it was suspended, and then the sargeant, inventorying the car bel'ore

towing, they found the crack pipe."

5

The sargeant then told the defendant to come back, put him in the police car, he

was not given his Miranda rights at that time, although it was obvious he was not free to

leave and he was in custody, and the Miranda rights begin once the person is in custody

and not free to leave."

Officer Milligan specifically said he did not mirandize him and in fact, Officer

Milligan said that he didn't think the sargeant mirandized him. It is not enough that he

was mirandized once they got him to the police station. The custody began when they

put him in the police car."

Therefore, the motion to suppress is granted, and we'll wait to hear from the state.

[ Tr. 48-49].

"In the case that was cited by counsel everything that occurred or that was taken

into evidence was suppressed, statements and evidence found in the vehicle."

The state responded, "I imagine we will appeal but--"

The Court then continued, "That's fine but remernber the sequence of events, they

didn't put him in custody until they found the crack pipe. "

The state then responded, °Correct". [Tr. Page 50].

ARGUMENTS IN SUPPORT OF PROPOSfrIONS OF LAW

Proposition of Law No.: I: All persons are entitled to Mironrla warnings once theyhave been placed "in full custody" by the police underthe Federal Fifth Amendment and the Section 10, Article Iof the Ohio Constitution.

6

While the U.S. Supreme Court, in Berkemer v. McCarty (1984), 468 U.S. 420, 82

L.Ed. 317, 104 S. Ct. 3138, held that "the roadside questioning of a motorist does not

constitute "custodial interrogation" for the purposes of the Miranda rule, [ Id. at Syllabus

Q 2 at 421 ], it also held that, " a person subjected to custodial interrogation is entitled to

the benefit of the procedureal safeguards enunciated in Mirantia, regarclless of the

nature of the offense of which he is suspected or for which he was arrested." [Id. at

Syllabus1l, pages 420-421 J.

The defendant/appellant, Efren Odavar respectfully argues that he was under the

Parma Police Department's 'full custody" when he cante out of the BP gas Station and

wcts told by Sgt. Haherkorn in so many words, "We want to interrogate you" and placed

him into the zone car.

The Eighth District Court of Appeals failed to correctly apply Berkerner and

committed error. The defendant respectfully requests that the appellate coutl be reversed.

Therefore, the Parma Police Department's "standardized procedures and policies"

which mandate that its officers withhold Miranda warnings from suspects until they are

taken tojail, is also unconstitutional.

Proposition of Law No.: 2: All persons in Ohio arc provided greater protectionunder Section 14, Article I of the Ohio Constituionagainst warrantless arrests for minor inisdemeanors.

The Ohio Supreme Court, in State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931,

held, "We finct that the batancing test set forth in Jones provides atnple reason for holding

7

That Section 14, Article I of the Ohio Constitution provides greater protection that the

Fourth Amcndment to the U.S. Constitution against warrantless arrests for misdemeanors.

Thus, Jones is still authoritative as to the Ohio Constitution." 122.

The defendant's drivers' license had been suspended for non-payment of child

support--a misdemeanor. However, he was the passenger and not the driver of the

vehicle. Hence, his misdemeanor was not relevant to the original Terry stop. The driver,

Ms. Jessica Holbrook was arrested at the scene for a previous outstanding traffic

misdemeanor. Though the Parma Police had a right to tow the automobile as a nuisance

because no one could lawfully drive it, they had no right to use the "fruits" of the

inventory search to indict the defendant for the commission of a felony.

The Eighth District Court of Appeals held, "Not only has Jones been overruled as

it relates to the Fourth Amendment, we fail to see how it relates to the instant case.

Holbrook rvas not arre.sted for a rninor mi.sdemeanor but on outstanding warrants, and

the police dis•covered the crack pipe as a result of an inventory seat-ch. " [pages 10-11 of

opinion].

The Eighth District Court of Appeals failed to correctly apply Jones and

Brow•n and committed error. The defendant respectfully requests that the appellate court

be reversed.

Therefore, the Parma Police Department's "standard policies and procedures"

whiclt allow its officers to conduct any search of a vehicle, absent plain view or the

8

exceptions in R.C. 2935.26(A), incident to a misdemeanor ticket offense, to continue

to search for evidence of a commission of a felony, is unconstitutional.

Yroposition of Law No.: 3: All statements and all physical evidence seizedfrom non-mirandized defendants in Ohio isunconstitutional pursuant to Section 10, Article Iof the Ohio Constitution

The Ohio Supreme Court, in State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-

3255, held, "To hold that physical evidence seized as a result of unwarned statements is

inadmissible, we would hve to hold that Section 10, Article I of the Ohio Constitution

provides greater protection to criminal defendants than the Fifth Amendment to the United

States Constitution. We find so here." 148. The Court's reasoning is also critical. It

said, "Only evidence obtained as the direct restdt of statements made in custody without

the benefit of a Miranda waming should be excluded. We believe that to hold otherwise

would encourage law enforcement officers to withhold Mirandce warnings and thus would

weaken Section 10, Article I of the Ohio Constitution. In cases like this one, where the

ha.sis for the critne and physical evidence is the keystotte of the case, wartting suspects of

their rights can hinder the gathering of evidence. Whett physical eviclence is centrctl to a

conviction and testimonial evidence is not, there can arise a virtual incentive to flout

Miranda. We believe that the overall administration of justice in Ohio requires a law-

enforcement environment in which evidence is gathered in conjunction with Mircmda, not

9

in defiance of it. We thus join other states that have already determined after Patane that

their state constitutions' protections against self-incrimination extend to physical evidence

seized as a result of pre-Miranda statements" 149.

Officer Milligan and Sgt. Haberkorn admitted that they searched the defendant-

owner, Efren Odavar's car, with the invalid cotasent of'the driver and seized the physical

evidence [i.e. the crack pipe] before they mirandized the defendant after he came out of

the gas station.

The Eighth District Court of Appeals incorrectly relied upon Oregon v. Mathiason

(1977), 429 U.S. 492, 97 S.Ct. 711, 713, 50 L.Ed.2d 714, after Farris was decided and

committed error. 1'herefore, the defendant respectfully requests that the appellate court

be reversed.

Therefore, the Parma Police Department's "standardized policies and procedures"

are also unconstittitional pursuant to Section 10, Article I of the Ohio Constitution.

CONCLUSION

Wherefore, the defendantlappellant, Efren Odavar respectfully requests that the

Ohio Supreme Court review the merits of constitutional questions raised in this Claimed

Appeal of Right.

10

Respectfully submitted by:

ary^laine Hall, Esq. 0051832Cou el of Record for the Defendant/Appellant,Efren Odavar645 Leader Building526 Superior Avenue, EastCleveland, Ohio 44114216.696.1616; 216.696.1646 faxmaryh @ apk.net

11

CERTIFICATE OF SERVICE

A copy of the foregoing DEFENDANT/APPELLANT, EFREN ODAVAR'S

MEMORANDUM FOR JURISDICTION was hand-delivered on this ^I I' day of

November, 2007 to the attorneys listed below:

William Mason, Esq.Cuyahoga County Prosecutor byPatrick Thomas, Esq. 0075276Assistant Prosecuting AttorneyJustice Center Ninth Floor1200 Ontario StreetCleveland, Ohio 44113

Counsel of Record for the State ofOhio, Cuyahoga County

ary aine Hall, Esq. 0051832Cou 1 of Record for the defendant/appellant,Efren Odavar

iii

APPENDIX..... 19 v LUU(

Tnur# of A#rpettls of M4iuEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 89029

STATE OF OHIO

PLAINTIFF-APPELLANT

vs.

EFREN ODAVAR

DEFENDANT-APPELLEE

JUDGMENT:REVERSED AND REMANDED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-485496

BEFORE: Cooney, J., Sweeney, P.J., and Stewart, J.

RELEASED: October 18, 2007

JOURNALIZED: OCT 2 9 2007

-i-

ATTORNEY FOR APPELLANT

William D. MasonCuyahoga County Prosecutor

BY: Patrick ThomasAssistant Prosecuting AttorneyThe Justice Center1200 Ontario StreetCleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Mary Elaine Hall645 Leader Building526 Superior Avenue, EastCleveland, Ohio 44114

FIbED AND JOITRNALIZEDPER APP. R. 22(E)

OCT 2 9 2007OPAALD E. FUEWST

v^EK F E OFAPPEALS

DWa.

AbRdtlUNC6b1ENT OF DECISIONPER APP. R. 22lBl , 22(p) ApD 26(fQ

RECEIVED

OCT 1$ 2007CA06089029 48121722

1IIIIUIIIIIIIIIIN111UIIIIIIflIIUIoIIIIIIIIaflERALD E. FUEpgT

BY ERE!Vl iJ T OF APPEAL8DHP.

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. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S. Ct. Prac.R. lI, Section 2(A)(1).

-1-

ATTORNEY FOR APPELLANT

William D. MasonCuyahoga County Prosecutor

BY: Patrick ThomasAssistant Prosecuting AttorneyThe Justice Center1200 Ontario StreetCleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Mary Elaine Hall645 Leader Building526 Superior Avenue, EastCleveland, Ohio 44114

CA06089029 48121722

{11118 UIII I1I81111111118111Nl 1111 IIII IN

FILED AND JOURNAI,IZEDPER APP. R. 22(E)

OCT 2 9 2097

^A^ E. FUER$7®^RK FT E T OF APPEALS

lxa.

i1NN0I1NCEIdENT OF DECISIONPER APP. R. 22(8i, 22(DI APlII 26{tU

RECEIV^D

OCT 1$ 2007t2ERALD E. FpUEflST

SYCLERK DFiT E! d Y OF APPEALS

^ //// DAp

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. 22. This decision will be journali2ed and wwiIl become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

-1-

COLLEEN CONWAY COONEY, J.:

Plaintiff-appellant, State of Ohio ("State), appeals the trial court's

decision to grant the motion to suppress filed by defendant-appellee, Efren

Odavar ("Odavar"). Finding merit to the appeal, we reverse.

In 2006, Odavar was charged with possession of drugs. He filed a motion

to suppress, in which he argued that the drug paraphernalia found during the

search of his car should be suppressed because the police unlawfully detained

him and searched his car. After a full hearing, the trial court granted the

motion. The following evidence was adduced at the motion hearing.

On. May 11, 2006, Odavar was a passenger in his car, which was being

driven by his friend, Jessica Holbrook ("Holbrook"). Officer Milligan of the

Parma police observed Holbrook driving back and forth between lanes without

first using a signal, and he stopped the vehicle. Holbrook pulled into a gas

station. When questioned by Officer Milligan, Holbrook denied having any

identification with her. The officer "ran" her information and found two

outstanding warrants. He escorted Holbrook to the police car to confirm her

warrants.

Officer Milligan asked Odavar who owned the car. The officer observed

that Odavar appeared to be under the influence because his eyes were "barely

a, -2-

open" and he seemed "groggy:" Odavar told the officer he owned the car and that

his license was suspended.

Officer Milligan testified that Odavar was told he could leave. Odavar

went into the gas station to buy cigarettes. Officer Milligan testified that he

decided to tow the car because no one was present who could legally drive

Odavar's car and the car was blocking a "couple of lanes" inside the gas station.

Detective Kalal explained Parma's towing policy which required that, prior to

towing a vehicle, an inventory search is conducted to protect both the owner of

the vehicle and the police.

During the inventory search, police discovered a crack pipe with residue

and charred ends in the center console. Officer Milligan testified that they

detained Odavar once they discovered the crack pipe. Officer Milligan further

testified that he did not question Odavar at the scene but took him to the police

station for further questioning. Neither officer on the scene advised Odavar of

his Miranda rights.

Detectives Kalal and Monnolly questioned Odavar at the police station

regarding the crack pipe. Prior to the interrogation, Detective Monnolly read

Odavar his Miranda rights. According to Detective Kalal, Odavar explained that

he was in the car with Holbrook. Odavar admitted that he had abused cocaine

u -3-

and crack, that the vehicle was his, and that he had smoked crack cocaine within

the last three days.

Odavar testified that Holbrook called him to give her a ride and he offered

to let her drive his car because his license was suspended. After the police

pulled the car over and arrested Holbrook, Odavar admitted that he owned the

car. When asked by the police if he had a license, Odavar testified that he told

the police that his license was suspended because he had failed to pay child

support.

Odavar testified that after he bought his cigarettes, he exited the gas

station and was told by the police that he was being taken in for interrogation.

He further testified that he did not remember the police ever informing him of

his rights. On cross-examination, he testified that he told the police that he used

marijuana in the past and that he did not remember what, if anything, the police

told him after they said they were taking him to the station for interrogation.

The trial court granted the motion to suppress, finding that the officers did

not properly inform Odavar of his Miranda rights. In its appeal, the State raises

two assignments of error. In the first assignment of error, the State argues that

the trial court erred when it granted Odavar's motion to suppress because the

crack pipe was found during a lawful inventory search. In the second

assignment of error, the State argues that the trial court erred when it

-4-

suppressed contraband under the theory that Odavar was not properly advised

of his Miranda rights, pursuant to Miranda u. Arizona (1966), 384 U.S. 436, 444,

16 L. Ed. 2d 694, 86 S. Ct. 1602_

In reviewing a trial court's ruling on a motion to suppress, the reviewing

court must keep in mind that weighing the evidence and determining the

credibility of witnesses are functions for the trier of fact. State u. DePew (1988),

38 Ohio St.3d 275, 277, 528 N.E.2d 542; State v. Fanning (1982), 1 Ohio St.3d 19,

20, 437 N.E.2d 583. A reviewing court is bound to accept those findings of fact

if supported by competent, credible evidence. See, State v. Curry (1994), 95 Ohio

App.3d 93, 96, 641 N.E.2d 1172, citing, State v. Schiebel (1990), 55 Ohio St.3d

71, 564 N.E.2d 54. The reviewing court, however, must decide de novo whether,

as a matter of law, the facts meet the appropriate legal standard. Id., see also,

State u. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906.

For the following reasons, we agree that the trial court erred in its

analysis and reverse its ruling on the motion to suppress.

Miranda Riehts

In the instant case, the trial court decided that the pivotal issue was

whether the police gave OdavarMiranda warnings when they decided to detain

him. The trial court found that because the officers failed to give Odavar

1Vliranda warnings when they detained him, the seizure of the crack pipe was

IL

r

-5-

unlawful. The court further found that Miranda's protection begins once a

person is taken into custody and that it was not enough for the police to advise

Odavar of his rights at the police station. Since the testimony revealed that

Odavar was not informed of his Miranda rights immediately upon being taken

into custody, the trial court granted the motion to suppress the crack pipe.

Miranda requirements govern the admissibility of statements obtained by

law enforcement agencies during interrogation. Under the Fifth Amendment to

the United States Constitution, no person "shall be compelled in any criminal

case to be a witness against himself[.]" Miranda requires that, before

questioning a suspect in custody, law enforcement officials must inform the

suspect: (1) that he or she has the right to remain silent; (2) that his or her

statements may be used against him or her at trial; (3) that he or she has the

right to have an attorney present during questioning; and (4) that, if he or she

cannot afford an attorney, one will be appointed. Miranda, supra at 478-479.

Odavar relied on the recent Ohio Supreme Court decision, State v. Farris,

109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, to argue that the crack

pipe should be suppressed. The trial court also relied on Farris in deciding that

the evidence should be suppressed. In Farris, the Court found that Section 10,

Article I of the Ohio Constitution provides greater protection to criminal

defendants than the Fifth Amendment so that Ohio's constitutional protection

-6-

against self-incrimination extends to physical evidence seized as a result of1

pre-Miranda statements. Thus, any evidence obtained as a result of

inadmissible statements is also inadmissible. Id.

Importantly, the Farris court stated that "only evidence obtained as the

direct result of statements made in custody without the benefit of a Miranda

warning should be excluded." Id. at 529. But Odavar never argued, nor did the

court find, that the pre-Miranda questions the officer posed to Odavar regarding

ownership of the car and the status of his drivers license violated Miranda.'

More importantly, the crack pipe was found before Odavar was taken into

custody and pursuant to an inventory search, not as a result of statements made

in custody without Miranda warnings. The holding in Farris does not allow the

trial court to go backward in time to reject or disallow evidence seized before a

violation occurs. Simply put, Farris is inapplicable to the instant case, and the

'Only custodial interrogation triggers the need for Miranda warnings. State v.Biros, 78 Ohio St.3d 426, 440, 1997-Ohio-204; 678 N.E.2d 891, citing Oregon V.Math.iason (1977), 429 U.S. 492, 495, 97 S. Ct. 711, 713, 50 L. Ed. 2d 714, 719.Custodial interrogation is "'questioning initiated by law enforcement officers after aperson has been taken into custody or otherwise deprived of his freedom of action inany significant way."' State v. Roberts (1987), 32 Ohio St.3d 225, 226, 513 N.E.2d 720,quotingMiranda, supra at 444. However, persons temporarily detained by police in thecourse of an investigative stop, including "[g] eneral on-the-scene questioning as to facts

surrounding a crime or other general questioning of citizens in the fact-findingprocess[,J" are not "in custody" for purposes of Miranda and deprived of theirconstitutional rights. Id. at 477-478.

-7-

trial court was incorrect in its analysis- That being said, we must still determine

whether the initial warrantless search of Odavar's car was lawful.

Inventorv Search

An inventory search of a lawfully impounded vehicle is a well-defined

exception to the warrant requirement of the Fourth Am.endment to the United

States Constitution. State u. Mesa, 87 Ohio St.3d 105, 1999-Ohio-253, 717

N.E.2d 329, citing Colorado v. Bertine (1987), 479 U.S. 367, 371, 107 S.Ct. 738,

93 L.Ed. 2d 739; South Dakota u. Opperman (1976), 428 U.S. 364, 367, 96 S.Ct.

3092, 49 L.Ed.2d 1000. This exception permits police to conduct a warrantless

search of a vehicle for the purpose of inventorying its contents after the vehicle

has been lawfully impounded. State v. Mesa, 87 Ohio St.3d 105, 108-109, 1999-

Ohio-253, 717 N.E.2d 329. See, also, Opperman, supra. The scope of an

automobile inventory search may properly extend to the trunk and glove

compartment. State V. Beavers, Cuyahoga App. No. 88513, 2007-Ohio-2915; State

u. Jenkins (July 5, 1990), Cuyahoga App. Nos. 57220 and 57221. The search also

may extend to a compartment of the vehicle, such as the console between the

front seats. See Mesa, supra at syllabus.

In order for an inventory search to be constitutionally valid, it must be

"reasonable"; that is, it must be conducted in good faith, not as a pretext for an

investigative search, and in accordance with standard police procedures or

q

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established routine. State v. Hathman, 65 Ohio St.3d 403, 1992-Ohio-63, 604

N.E.2d 743, paragraph one of the syllabus, citing Opperman, supra, and Bertine,

supra.

Odavar argues that the police had no right to search his car because he

was not driving the vehicle. Odavar concedes that towing the car may have been

necessary, but he argues that the additional inventory search was unlawful since

the actual driver of his car was arrested for a misdemeanor traffic offense. We

find, however, that the reason for Holbrook's arrest has no bearing on this case

other than that she was not permitted to drive Odavar's car. Additionally, this

court has previously held that it is reasonable to do an inventory search before

surrendering a car to a towing company in order to insure the proper accounting

of the contents of the car. State v. Bridges, Cuyahoga App. No. 80171, 2002-Ohio-

377I; State u- Cook (2001), 143 Ohio App.3d 386, 758 N.E.2d 213. Thus, the

police were not required to tow the car and then procure a warrant to search the

car.

We next consider whether the State provided sufficient evidence that the

inventory search was conducted pursuant to Parma's standard towing

procedures. Although no written procedures were introduced into evidence,

testimony regarding standard police procedures is sufficient to show lawful

reasons for impoundment. See State u. Semenchuk (1997), 122 Ohio App.3d 30,

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40, 701 N.E.2d 19, 25-26. Detective Kalal testified regarding the department's

towing procedures. He testified that once the decision had been macle to tow a

vehicle, it was standard procedure for the officers on the scene to inventory the

vehicle's contents. He further explained that the passenger compartment and

trunk would be inventoried and all contents would be logged onto an inventory

form.

The testimony of Officer Milligan reveals that the search of Odavar's car

was conducted pursuant to Parma's standard procedures. We further find that

there is no evidence, other than Odavar's unsupported assertions, that the

search was pretextual in nature. Holbrook had been arrested on her outstanding

warrants, and Odavar's license was under suspension; thus, there was no one at

the scene who could legally drive the car. Moreover, Odavar's car was blocking

a portion of private property open to public access. Therefore, we find that the

police were justified in towing the car. And because the drug paraphernalia was

obtained during the lawful inventory search, we find it was properly seized.

The first and second assignments of error are sustained.

Cross Appeal

In his cross appeal, Odavar argues that "the trial court did not commit

error when it held that the arrest of his person and all physical evidence

obtained by the [police] against [him] violated the [Fourth] Amendment ***."

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As a procedural matter, we note that App.R. 3(C) provides:

"(1) Cross appeal required. A person who intends to defend a judgmentor order against an appeal taken by an appellant and who alsoseeks to change the judgment or order or, in the event thejudgment or order may be reversed or modified, an interlocutoryruling merged into the judgment or order, shall file a notice ofcross appeal within the time allowed by App.R. 4.

(2) Cross appeal not required. A person who intends to defend ajudgment or order appealed by an appellant on a ground otherthan that relied on by the trial court but who does not seek tochange the judgment or order is not required to file a notice ofcross appeal."

Odavar does not seek to change the judgment, but is merely defending the

trial court's judgment on a ground other than that relied on by the trial court.

Therefore, a cross appeal is not required, but.we will address his argument,

Odavar again argues that the police exceeded their authority and

conducted a search of his car in violation of his Fourth Amendment rights.

Odavar first cites State u. Jones, 88 Ohio St.3d 430, 2000-Ohio-374, 727 N.E.2d

886, in which the Ohio Supreme Court stated that a person may not be arrested

for a minor misdemeanor, and evidence obtained incident to an arrest for a

minor misdemeanor is subject to suppression. Not only has Jones been

overruled as it relates to the Fourth Amendment, we fail to see how it relates to

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the instant case.2 Holbrook was not arrested for a minor misdemeanor but on

outstanding warrants, and the police discovered the crack pipe as a result of an

inventory search.

The other cases cited by Odavar are also inapposite to the instant case

because in those cases the incriminating evidence, physical or otherwise, was

obtained after an unlawful detention or arrest.3

As explained above, inventory searches are a well-defined exception to the

warrant requirement, and the crack pipe was found during a lawful inventory

search of Odavar's vehicle. Thus, his Fourth Amendment rights were not

violated.

Therefore, Odavar's cross-assignment of error is overruled.

Accordingly, this cause is reversed and the case is remanded for

z"[T]o the extent that Jones relies on the Fourth Amendment to the United

States Constitution, it is no longer authoritative regarding warrantless arrests f'orminor misdemeanors."- State v. Broeun; 99 Ohio St.3d 323, 326, 2003-Ohio-3931, 792

N.E.2d 175.

' Odavar cites the following cases: State u. Robinette, 73 Ohio St.3d 650, 1995-Ohio-162, 653 N.E.2d 695; State u. Robinette, 80 Ohio St.3d 234, 1997-Ohio-343, 685

N.E.2d 762; f3erkerner u. McCarty ( 1984) 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d

317.

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proceedings consistent with this opinion.

It is ordered that appellant recover from appellee 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.

JAMES J. SWEENEY, P.J., andMELODY J. STEWART, J., CONCUR