Update: On January 16, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“Our concern isn’t the overriding purpose of the policy, our concern is the overriding purpose of the Constitution…”

Justice French

On April 6, 2017, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Jamie Banks-Harvey. At issue in this case is whether police officers are permitted to search the contents of an arrestee’s purse after she is handcuffed and placed in a cruiser, but before she is taken to jail or incarcerated. This case was argued at Morgan High School in Morgan County as part of the court’s off-site program.

Case Background

Appellant, Jamie Banks-Harvey, was pulled over for speeding by Highway Patrol Trooper Matthew Keener. Banks-Harvey was driving with two passengers, Charles Hall (owner of the car and Banks-Harvey’s boyfriend), and a Ms. Holcomb. Banks-Harvey did not have a license, and showed Trooper Keener an Ohio ID card. Keener learned that Banks-Harvey had an outstanding warrant from Montgomery County for possession of heroin.

Trooper Keener removed Banks-Harvey from the car, patted her down, and placed her in the back of his cruiser. While waiting for confirmation of the warrant on Banks-Harvey, Keener returned to the car and spoke to Hall and Holcomb. Keener later testified that during this conversation, he observed a gel capsule on the car’s floorboard; he believed the capsule to contain heroin.

Trooper Keener returned to his cruiser and received confirmation that the warrant on Banks-Harvey was active. Banks-Harvey was then handcuffed and placed under arrest. Upon learning that Holcomb had a drug-paraphernalia warrant, she was also arrested and placed in the cruiser with Banks-Harvey. Hall had a valid license and no warrants. At some point during the arrests of Banks-Harvey and Holcomb, Officer O’Neal, a local police officer, arrived at the scene.

After he had arrested the two women, Trooper Keener returned to the car, removed Banks-Harvey’s purse from between the seats, placed it on the hood of the cruiser, and searched it.  Keener asked Hall for consent to search the car; Hall refused. Banks-Harvey was not asked for and did not give consent for her purse to be searched.

Trooper Keener found substances in Banks-Harvey’s purse that he believed to be cocaine and heroin. This was later confirmed by field tests conducted by Keener at the post. Keener also found needles and a glass pipe. At the conclusion of the stop, Hall was permitted to drive away with the car.

After the drugs and drug paraphernalia were discovered, Officer O’Neal told Trooper Keener that he had seen a gel capsule on the floor of the passenger side of the automobile. A search of the car by O’Neal uncovered several gelcaps and a needle under Holcomb’s seat.

Banks-Harvey was indicted for possession of heroin, cocaine, drug paraphernalia, and drug abuse instruments. She moved to suppress the evidence found in her purse. The trial court denied the motion to suppress the evidence. The trial court found that Trooper Keener did not have probable cause to search the car or the purse, discrediting Keener’s testimony that he saw the gel capsule before removing the purse from the car. However, the trial court found that Officer O’Neal did see the gel capsule and thus admitted the drugs and paraphernalia from the purse under the inevitable discovery doctrine.

Banks-Harvey pled no contest to all counts of the indictment, and was sentenced to three years of community-control, including completion of an inpatient treatment program. She appealed the denial of her motion to suppress.

In a split decision authored by Judge Hendrickson and joined by Judge Ringland, the 12th District held that the evidence should not have been admitted under the inevitable discovery doctrine, but that removal of the purse from the car and its subsequent search was done pursuant to standard Highway Patrol procedures, and thus the evidence from the purse was properly admitted as a valid inventory search. Judge Michael Powell dissented. He would find that the Highway Patrol inventory search policy as described by Trooper Keener violated the Fourth Amendment.

Read the oral argument preview of the case here.

Key Precedent

Fourth Amendment of the United States Constitution (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)

Article I, Section 14 of the Ohio Constitution (The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.)

Arizona v. Gant, 556 U.S. 332 (2009) (Search incident to arrest exception to 4^th Amendment warrant requirement did not justify the search of arrestee’s vehicle after arrestee was handcuffed and locked in the back of the police cruiser. “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”)

Minnesota v. Dickerson, 508 U.S. 366 (1993) (“[S]eizures ‘conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject to only a few specifically established and well delineated exceptions.’”)

South Dakota v. Opperman, 428 U.S. 364 (1976) (Routine practices of securing and inventorying the contents of an automobile serves three distinct needs: (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 from potential danger.)

At Oral Argument

Arguing Counsel

Eric M. Hedrick, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, for Appellant Jamie Banks-Harvey

Kirsten A. Brant, Assistant Prosecuting Attorney, Warren County Prosecutor’s Office for Appellee State of Ohio

Peter T. Reed, Deputy Solicitor, for Amicus Ohio Attorney General Mike DeWine, in support of Appellee State of Ohio

Banks-Harvey’s Argument

Trooper Keener’s warrantless entry into the car to retrieve Banks-Harvey’s purse, and the subsequent warrantless removal and search of that purse violated the Fourth Amendment and the Ohio Constitution. Banks-Harvey had already been arrested, handcuffed and placed in the back seat of the cruiser when her purse was retrieved. The appeals court has formulated a rule that will allow the state highway patrol routinely to violate the Fourth Amendment under the guise of carrying out an inventory policy.

The police conduct in this case is expressly prohibited by the U.S. Supreme Court decision in Gant v. Arizona. Gant allows search incident to arrest in only two circumstances-—when the arrestee is unsecured and in reaching distance of the vehicle, or when it is reasonable to believe that a vehicle contains evidence of the offense of the arrest. Regardless of how it may be labeled, the highway patrol policy as described by Trooper Keener constitutes an unconstitutional extension of search incident to arrest. In order for there to be an inventory search, there must be a lawful impoundment of the vehicle. Banks-Harvey’s purse was inside the car, the car was closed, Banks-Harvey had already been arrested, handcuffed and was secured. Trooper Keener never should have had the purse in the first place. Officer safety would not have come up if the purse had just been left in the car. The police had no business going into the car to get the purse or then subsequently searching it.

Trooper Keener did testify, rather ambiguously, that when an individual goes to jail, that person’s personal property goes with her. But the Highway Patrol policy is not in the record. It wasn’t read into the record or offered as an exhibit. There is nothing in the record that shows that Trooper Keener actually completed a form, or itemized all the items, as the state is suggesting. Keener did not testify that the search was for community caretaking purposes, or even that this was an inventory search—that is a label that was put on this by the appeals court.

There are two ways to get to an inventory search here. One is through a lawful impoundment of the vehicle, which did not occur in this case. The other is a type of station house inventory search where an automobile is not involved and there is an inventory search of personal property. But that line of cases is limited to instances in which an officer arrests a person on the street. Location doesn’t matter as much as the fact that the property is on the person. If the trooper had lawful access to the purse, at that point it does become an inventory search. But in this case the trooper was manufacturing an inventory style search by trying to justify his actions in going in the car, as “it’s part of policy”. That doesn’t cut it under the Fourth Amendment or Gant.

Additionally, the gelcap in and of itself is not contraband—there are permissible uses for gelcaps– so it is not even clear that seeing the gelcap would provide probable cause for the search of the car.

The inevitable discovery doctrine won’t save the state either. The state failed to meet its burden that an alternate line of investigation was underway before the illegal conduct. The appeals court found that was not demonstrated—and it was not. It is absolutely unclear from the record when Officer O’Neal began looking in the car, and does not mention this gelcap until after the search of the purse is well underway and almost complete.

State’s Argument

The assistant county prosecutor shared argument with the Attorney General’s office.

Prosecutor’s Argument

Standard police policy permits a trooper, under the Fourth Amendment, to seize and inventory a purse at the scene of an arrest prior to the arrestee being taken to jail. In this case, Trooper Keener was acting pursuant to standard Highway Patrol policy that said if an arrestee is being taken to jail, her personal belongings, her property, goes with her. Although that policy was not admitted into evidence, Trooper Keener testified as to what the policy says, and he clearly conformed to that policy. Furthermore, the trial court found as a fact that the policy stated that the property is to accompany the individual to jail.

The reason the inventory search is an exception to the warrant requirement is because of the purposes that it serves, and the manner in which it is conducted. In this case the inventory occurred when the trooper put the purse on the hood of the cruiser and took out every item of property within full view of the camera. That was an inventory, albeit not a written one. It documents the evidence or items that are in that purse. The absence of an inventory report in evidence does not change the fact that this was an inventory search.

There is discretion within the policy for the officer to decide which items of the arrestee should accompany that person to jail. In this case, it was a purse, and a purse absolutely should accompany a woman who is arrested to jail. The overriding purpose of the inventory search exception is to protect the owner’s property from theft, loss, or vandalism, and to protect to protect the officer from liability, from claims of theft or loss while the property is police custody. The U.S. Supreme Court has held that the existence of reasonable alternatives, even less intrusive alternatives, does not make what the officer did unreasonable. Here, the policy said take the property and bring it with the arrestee to jail and that’s what Trooper Keener did. Police officers should follow police procedures.

Attorney General’s Argument

The Fourth Amendment deals with investigative searches, criminal searches. This was an administrative, not an investigatory search. Administrative searches fall outside the Fourth Amendment.

The inventory search exception, as well as other types of administrative searches, deal with administrative purposes. What we have here is a search, following standard practice, that advances administrative purposes such as convenience to the arrestee to have her ID, a phone, and cash so she can get a cab when she leaves. Other administrative purposes are protecting the police from lawsuits and prisoners from dangerous items. The court only has to deal with whether a policy dealing with purses and wallets is a reasonable administrative policy—there is no reason to address other policy in this case.

There is also a second question as to whether the purpose here was pretextual. There is pretty clear evidence that it wasn’t. The trooper could have impounded the whole car and searched everything in it as a valid inventory search because the owner of the car entrusted it to a person who didn’t have a license. The trooper knew he could have impounded the car, but chose a narrower option, taking only the purse, because he believed it was a good administrative practice for a purse to go with an arrestee so that she has access to her ID, so that she can call a cab and get home. And once the purse is secured, inevitably it is going to be searched. For Banks-Harvey, having her purse with her advances her interest as well as the government’s administrative purposes in processing her. Those are administrative and not criminal purposes.

What Was On Their Minds

The Highway Patrol Policy

Wasn’t the protocol that a purse would follow the arrestee to jail, asked Chief Justice O’Connor? And that prior to doing that, as an officer safety issue, the purse would be searched? Isn’t that the underpinning of the policy? Wouldn’t safety concerns dictate that you should make sure there is nothing that is in that purse that would be detrimental? Where is the Highway Patrol policy articulated? Is it a written policy? Is there any corroborating testimony that that is a policy?

What about the fact that there was a warrant for the arrest of the driver of the car, asked Justice O’Neill? Is it common practice with the Highway Patrol to impound a vehicle if a person is arrested on a warrant? Can the highway patrol have a policy which says if you are arresting someone and there is a suitcase in the truck that should be searched as well? Can they have that policy?

Does removing the property and placing it on the hood of the cruiser fall within the policy directive of the Highway Patrol, asked Justice O’Donnell? Is that the way the highway patrol conducts an inventory search? If the policy is that the property of the person being arrested accompanies that person to jail, how much of the property goes? A suitcase? A backpack? All of it would be inventoried on site?

Why should it be up to the trooper to decide what goes with the arrestee to jail, asked Justice French? What if a purse is really big? Or the person carries a wallet separately from the purse? Does the policy say, if arresting a woman, you must bring her purse? How does the trooper know what is the arrestee’s personal belonging? In a key question of the day she asked why the arrestee’s personal property needs protecting if the car is not being impounded. For her own safety?

Why wasn’t the policy introduced into the record, asked Justice Fischer, commenting that if the written policy were in evidence, the court could see what the written policy really was. Wouldn’t the policy itself be the best evidence?

Purses and Other Personal Property

What should the trooper have done with the purse in that vehicle, asked Justice O’Donnell? Left it there? What would be the liability of the officer for letting her personal properly be taken from her? Would the same be true for a wallet left in the car?

Practically, how does a person get booked into jail when they don’t have their identification or their purse with them, asked Justice DeWine, commenting that it seems pretty basic that if someone was going to be booked into jail, she’d need her purse with her. What if the item were a suitcase, or a trunk? If the officer had the right to get the purse, to let the defendant take it with her, was it permissible to search it? And, in a key question of the day, he asked, whether the only question for the court was, did the officer have the right to go get that purse out of the car? Should they have taken the car?  Isn’t that personal property?

What if a woman’s needed medication that was in her purse, and it was left behind, asked Chief Justice O’Connor? What would have happened if the defendant had said, “leave my purse there. I don’t need it, leave it there”? Is there a choice here or is the policy mandatory? If the owner directs, leave my purse in the car, with my boyfriend, does the trooper have discretion? Must he take it, or can he leave it in the car?

The only two ways that officer could look inside that purse would be for his personal safety, or for an inventory to guarantee against theft, commented Justice O’Neill. But if the purse stayed in the car, his safety is not an issue. And the car wasn’t being towed. So even giving the trooper the benefit of the policy, what’s the purpose of taking the purse that no one asked for?

Inventory Searches

If the car was being impounded, wouldn’t it be subject to an inventory search and the drugs would have been found, asked Justice O’Neill? Is it the defense position that once the person was in the back of the patrol car and the purse was not in the back of the patrol car, the police had no business opening that purse? (answer from defense counsel- the police had no business going into the car to get the purse or then subsequently searching it.) Was this an inventory search? Was the whole car searched?

The purpose of an inventory search is to create inventory, commented Justice DeWine. So where was the inventory in this case? Was it catalogued anywhere? So there is no inventory report filed with this arrest?

Wasn’t the contraband noted in an inventory, asked Chief Justice O’Connor? What he took from her purse? Weren’t they videoed on the hood of the cruiser?  Did the trooper ever say he was looking for contraband? Is it the state’s position this was not an inventory search? Is it the defense position that it is a purely Fourth Amendment-covered criminal search?

Is what was done here prohibited by Gant, asked Justice O’Donnell?

Administrative Purposes

What about the initial step of removing the purse from a car that was not going to be impounded, asked Chief Justice O’Connor, commenting that somebody was going to drive it away. Couldn’t the administrative search be a pretext for a Fourth Amendment search? Didn’t the trooper already have the defendant’s ID to find out about the outstanding warrant?

If this administrative policy is valid, why did the trooper ask if he could search the vehicle, and the owner say no, asked Justice Fischer? Why was there a need to ask that question?

Inevitable Discovery

Justice French asked about the inevitable discovery doctrine, and the trial court’s finding on that point, noting that got the court away from problems with whether the officer had the right to take the purse. Isn’t seeing a gelcap probable cause? Isn’t that considered drug paraphernalia? If the court were to so find, would that not inevitably lead to the search of the purse?

Which happened first, asked Chief Justice O’Connor? Officer O’Neal seeing the gelcap or the purse being removed from the car?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for the defense. I think a majority of the justices are going to find that the trooper had no right to remove Banks-Harvey’s purse from the car once Banks-Harvey was under arrest and secured in the back of the cruiser, and the car was not impounded, and that the inventory search policy at issue here either wasn’t clearly established in the record or violated the Fourth Amendment.

This was a very hot bench, and the justices were very tough on both defense counsel and the prosecutor. The state’s argument about just following standard Highway Patrol policy was seriously hampered by the failure to have the policy in the record, and the lack of a written inventory report.  The prosecutor’s argument about trooper discretion in taking or leaving the purse seemed both unclear and contradictory.   Both Chief Justice O’Connor and Justice French, and Judge Michael Powell in his dissent, made it clear that no policy can trump the Constitution. And while it is hard to tell whether this one did, in the absence of the best evidence, namely the policy itself, the argument was not very convincing that it didn’t.

The Deputy Solicitor tried to come to the prosecutor’s rescue with a tight argument about the purely administrative nature of this search, putting it outside the reach of the Fourth Amendment, and his emphasis on how taking the purse from the car was really for the convenience of the arrestee, who after all would need her purse when processed and to get home. But as the Chief pointed out, the trooper already had her ID in order to run her through the system.  I think the defense argument that this was an unreasonable search under the Fourth Amendment was more persuasive than the administrative convenience and all-for-the good-of-the-arrestee arguments made by the state.

Justice French appeared very gung ho at first with the inevitable discovery alternative, but defense counsel did a very effective job arguing that state failed to meet its burden that an alternate line of investigation was underway before the illegal conduct. Further, the appeals court majority rejected that argument as well. The state didn’t really argue that point in its arguments.

To Student Contributor Connie Kremer

I think Justice French’s sentiment will carry the day: “Our concern isn’t the overriding purpose of the policy; our concern is the overriding purpose of the Constitution.” Chief Justice O’Connor’s subsequent comment that “policy is not going to trump the Constitution” seems to further indicate a likely win for Ms. Banks-Harvey. At the end of the day, the justices appear unlikely to allow an ambiguous policy—the policy having never been entered into the record—to override the Constitution’s protections against warrantless search and seizure.

Although the justices asked some tough questions of counsel for Banks-Harvey, they seemed more critical of the assistant prosecutor. Mr. Reed gained the most traction when he argued that this search was administrative—the question turning on whether the purpose of the search was merely pretextual. However, I think Mr. Reed’s argument may have been too little, and too late. My prediction is that the justices will not favor an ill-defined policy over the presumption that a warrantless search and seizure violates the Constitution.