First District roundup

Last week the First District issued two decisions worth mentioning--one civil and one criminal.

The first case of note is Baird v. LAD Holdings, LLC. Long story short, the plaintiff below won the disbursement of funds in escrow to settle (in part) a debt owed under a divorce decree. The intervening defendant-appellant, LAD Holdings, contended that it was entitled to those funds pursuant to an unrelated contract. The court did not reach the issue of who was properly entitled to the funds because it found the case to be moot under the voluntary satisfaction doctrine. More specifically, the court found that LAD Holdings had voluntarily satisfied the judgment by failing to move for a stay of the escrow disbursement order.

Baird is yet another example of how important it is to retain experienced appellate counsel. LAD's counsel is no doubt a competent trial attorney, and may well have been correct in its legal arguments, but here LAD was tripped up on a matter of appellate procedure--and is out $800,000 as a result.

The other case of note is State v. Foster, in which the court ruled that the trial court erred by denying a motion to suppress evidence discovered pursuant to a supposed inventory search. The officers arrested the defendant after pulling him over for a traffic violation and discovering an open warrant. Foster was handcuffed and patted down, and the officers discovered about $1400 in cash on him. After placing Foster in the cruiser, the officers did not tell Foster that he could have someone remove the car from the road, though Foster did ask if his wife could come and get the car. The officers spent an hour searching the car, and the search produced marijuana, a scale, and a gun. Foster was charged with trafficking marijuana, carrying a concealed weapon, and having weapons under a disability. At trial Foster moved to suppress the evidence of the money, the marijuana, the scale, and the gun.

The Fourth Amendment's warrant requirement includes an exception for inventory searches conducted pursuant to a standard departmental procedure so long as they are made for the purpose of securing a vehicle and its contents. The trial court found that the evidence at issue was discovered during a search made pursuant to just such a policy. But the First District reversed, holding that the policy speaks only of searching vehicles taken "into custody per Cincinnati Municipal Code 513-1."

That code section provides, among other things, that a vehicle may not be impounded if the vehicle can be safely left at the point of the driver's arrest, or if the arrested driver can arrange for someone to come pick up the car. Because Foster's wife could have come picked up the car, the search was not made pursuant to the policy for inventory searches, and thus did not fall within the inventory search exception to the Fourth Amendment's warrant requirement. The court thus vacated Foster's convictions and remanded for further proceedings.

Congratulations to my law school classmate Tom Hodges for the appellate win on behalf of Mr. Foster.

I note, incidentally, that the Ohio Supreme Court currently has under submission a case called State v. Banks-Harvey, which relates to whether a search of a vehicle occupant's purse was permissible under an inventory search exception. The facts of the two cases are not terribly similar, but the Supreme Court may plow some new ground on inventory searches in a way that's relevant to Foster.