A passenger left her bag of admittedly “illegal stuff” in a car that a Wayne County sheriff’s deputy received the driver’s permission to search, but the drug paraphernalia discovered in the bag could not be used to convict her, an Ohio appeals court ruled.

The Ninth District Court of Appeals overturned the conviction of Taryn Chojnowski whose motion to suppress the evidence and statements she made about the contents of the bag were denied by a Wayne County Municipal Court. With her motion denied, Chojnowski pleaded no contest to possession of drug abuse instruments, a second degree misdemeanor, for which she was sentenced to 30 days in the Wayne County Justice Center. She appealed her sentence to the Ninth District.

In February 2014, Deputy Kirk Shelly found Chojnowski and the driver of a vehicle parked in a business lot after 10 p.m. Suspecting prostitution, Shelly asked the owner to exist the car. After determining there was no sexual relations in exchange for money, Shelly asked the driver for permission to search his vehicle, which he granted. Chojnowski was instructed to get out of the vehicle, but she left a large black canvas bag that was on her lap in the car.

Shelly testified in municipal court that he did not seek Chojnowski’s permission to search the bag, which was partially open, and had a sealed black bag inside. When Shelly held it up and asked what was in it, Chojnowski replied it was her “illegal stuff.” Shelly arrested Chojnowski, transported her to the sheriff’s office, and opened the bag to discover a pipe, needles and other items described as those used for drug abuse.

At the hearing, Shelly conceded on cross examination that he searched the vehicle solely on the owner’s consent and that the bag with the drug instruments was completely sealed and not visible in plain view. He also admitted he did not read Chojnowski her Miranda rights before asking her what was in the small bag.

Chojnowski’s attorney moved to suppress the evidence from the search and the statement, but the trial court denied it indicating that Shelly’s search met the “automobile exception” to the requirement for a search warrant.

Writing for the Ninth District, Judge Donna Carr noted the automobile exception applies when an officer has probable cause to believe that vehicle contains contraband and exigent circumstances, such as the destruction of evidence, necessitates a search. She ruled the exception did not apply in this case.

“His initial suspicions were that the vehicle occupants were engaged in sexual relations for money, but he clarified that he learned that no money had been exchanged by the time he requested the vehicle owner’s consent to search the car. As he had no probable cause to support the search for suspected contraband, neither could he articulate any exigent circumstances to support the search,” she wrote.

While the exception did not apply, Judge Carr wrote this was the first time the court addressed the question of whether the deputy had permission to search the bag because the owner allowed for the search and the bag was left in the car. She indicated Ohio’s Second District Court of Appeals had a similar case where a deputy received the permission of the owner to search the vehicle, a passenger was ordered to leave her purse in the car, and the search of the purse found drug paraphernalia.

The Second District cited the U.S. Supreme Court 1974 United States v. Matlock decision allowing an owner to give permission to search areas with common access or joint control. But since the owner did not have joint control of his passenger’s purse, the court ruled the search illegal. Judge Carr indicated that was similar to Chojnowski’s case.

“Moreover, the state presented no evidence to establish that Deputy Shelly had a reasonable belief that the vehicle owner had authority to consent to a search of Chojnowski’s bag,” she wrote.

Because the search was deemed illegal, the Ninth District also found the statements Chojnowski made in response to the Shelly must be excluded as well. The court ordered a new trial consistent with its findings.

Judge Jennifer Hensal concurred in the decision.

In her dissent, Judge Beth Whitmore noted that unlike the case in the Second District, Chojnowski was not ordered to leave the bag in the car, and since the driver gave Shelly the right to search the vehicle, he had the right to search the bag.

“Chojnowski could have taken the bag with her, but chose not to do so. There is no evidence that Chojnowski, who was physically present during the search, ever objected to or sought to limit the scope of the search,” Judge Whitmore wrote.

State v. Chojnowski, 2015-Ohio-1405
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2015/2015-Ohio-1405.pdf
Criminal Appeal From: Wayne County Municipal Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: April 13, 2015

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