[Cite as State v. Sanders, 2012-Ohio-1540.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97120

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

STEPHEN P. SANDERS

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-538842 

BEFORE: Celebrezze, J., Blackmon, A.J., and Rocco, J. 

RELEASED AND JOURNALIZED: April 5, 2012 
ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 

75 Public Square 

Suite 1016 

Cleveland, Ohio 44113-2098 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Oscar E. Albores 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Appellant, Stephen Sanders, appeals his convictions for drug trafficking and 

possession of criminal tools, arguing that the trial court erred in denying his motion to 

suppress, the court considered improper factors at sentencing, and the court’s plea 

colloquy was defective. After a thorough review of the record and the law, we affirm 

appellant’s convictions. 

I. Factual and Procedural History 

{¶2} On June 17, 2010, appellant was traveling on I-271 at a high rate of speed. 

Village of Orange police officer Sam Borgia initiated a traffic stop of appellant’s vehicle 

for traveling 79 m.p.h. in a 60 m.p.h. zone. Officer Borgia entered the license plate 

number into his in-car computer system. The vehicle came back registered to appellant 

and also showed an outstanding traffic warrant for his arrest from the city of Bedford. 

The warrant information indicated that appellant was armed and dangerous. Officer 

Borgia also obtained a photograph of appellant on his computer screen, which matched 

the person seated in the vehicle. Officer Borgia remained in his police car while he 

waited for backup because of the “armed and dangerous” designation in the warrant. 

Before backup could arrive, appellant was in the process of opening his vehicle door, and 

it appeared to Borgia that he was getting out of his vehicle. Officer Borgia then initiated 

a controlled arrest of appellant by yelling commands, which appellant followed. 

Appellant walked backwards toward the police car and was ordered to the ground. He 
was then handcuffed and asked if he was Stephen Sanders, to which he replied that he 

was. He was then placed in the back of the police car and informed that he was under 

arrest. Back-up then arrived. 

{¶3} Officer Borgia contacted dispatch to inform them of the situation and to get 

confirmation of the warrant. He then began searching the vehicle, he said, because there 

was no person to take possession of it and it would have to be towed. He indicated the 

search was an inventory search. The dashboard video footage from Officer Borgia’s 

vehicle shows appellant’s arrest and the search of his vehicle. Officer Borgia cannot be 

seen filling out any paperwork while conducting the search, but another officer, identified 

as Officer Sherwood, filled out the inventory sheet and can be seen on the video. 

{¶4} Officer Borgia searched the front passenger compartment and discovered a 

quantity of marijuana in a zip-top freezer bag in the glove box. He then searched the 

trunk and discovered an open black plastic garbage bag that contained six more large, 

zip-top freezer bags of marijuana. At some point during the search, the Bedford 

warrant was confirmed, but Officer Borgia could not state when. 

{¶5} After the discovery of this quantity of marijuana, Officer Borgia radioed to 

dispatch to inform Bedford that it would no longer receive appellant pursuant to the 

warrant, but that he would be charged in Orange. Appellant was arrested and charged 

with drug trafficking, drug possession, and possession of criminal tools. 

{¶6} A suppression hearing was conducted on January 26, 2011, where Officer 

Borgia indicated that the search conducted was an inventory search done prior to towing 
appellant’s vehicle. The state presented the tow inventory sheet filled out at the scene of 

appellant’s arrest and the village of Orange tow policy. The inventory sheet indicated 

that it was started at 8:00 p.m. by Officer Sherwood, and the dash camera footage showed 

that the stop of appellant was initiated at 7:53 p.m. Appellant’s identity was confirmed 

at 7:56 p.m. 

{¶7} The trial court found that the police acted in good faith in arresting appellant 

pursuant to the warrant and that the vehicle could be searched prior to it being towed 

because there were no other occupants who could take possession of it. The trial court 

denied appellant’s suppression motion. Appellant then entered pleas of no contest to the 

charges against him, and the trial court found him guilty, merged the trafficking and 

possession counts, and sentenced appellant to an aggregate sentence of five years in 

prison — five years for trafficking concurrent to one year for possession of criminal tools, 

and concurrent to a one-year sentence in another case. 

{¶8} Appellant then filed the instant appeal assigning three errors. 

II. Law and Analysis 

A. Inventory Search Incident to Impoundment 

{¶9} Appellant first asserts that “[he] was denied due process of law when the 

court overruled [his] motion to suppress.” 

{¶10} Appellant argues that the warrant was never produced at the suppression 

hearing and that Officer Borgia did not confirm the warrant before arresting him or 

searching the vehicle. Relying on State v. Smartt, 61 Ohio App.3d 137, 572 N.E.2d 204 
(8th Dist.1989), appellant argues that the state must produce the warrant at the 

suppression hearing to prove the factual basis for the arrest and inventory search. 

{¶11} “Appellate review of a trial court’s ruling on a motion to suppress presents 

mixed questions of law and fact.” State v. McNamara, 124 Ohio App.3d 706, 710, 707 

N.E.2d 589 (4th Dist.1997). An appellate court must accept the factual findings of the 

trial court as long as they are supported by competent, credible evidence, but may 

disregard the trial court’s factual findings if they are clearly erroneous. State v. Long, 

127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). However, the application of 

the law to those facts is subject to de novo review. State v. Polk, 8th Dist. No. 84361, 

2005-Ohio-774, ¶ 2. 

{¶12} The Fourth Amendment to the United States Constitution prohibits 

warrantless searches and seizures, rendering them per se unreasonable unless an 

exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 

(1967). The analysis for a search requires a two-step inquiry where probable cause is 

required and, if it exists, a search warrant must be obtained unless an exception applies. 

State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10, 734 N.E.2d 804. “If the state fails to 

satisfy either step, the evidence seized in the unreasonable search must be suppressed.” 

Id. at 49, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); AL 

Post 763 v. Ohio Liquor Control Comm., 82 Ohio St.3d 108, 111, 694 N.E.2d 905 (1998). 

{¶13} An inventory search is a well-defined exception to the warrant requirement. 

State v. Mesa, 87 Ohio St.3d 105, 108, 717 N.E.2d 329 (1999), citing Colorado v. 
Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). An inventory search is 

conducted pursuant to administrative procedures 

to protect an individual’s property while it is in police custody, protect 

police against claims of lost, stolen or vandalized property, and protect 

police from dangerous instrumentalities. [Mesa] at 109, citing South 

Dakota v. Opperman (1976), 428 U.S. 364, 369. Because inventory 

searches are unrelated to criminal investigations, probable cause is not 

implicated, but rather the validity of the search is judged by the 

reasonableness standard. State v. Hobbs, 8th Dist. No. 85889, 

2005-Ohio-3856, ¶ 20. 

{¶14} Here, we must determine whether the inventory search was done for the 

purpose explained above or whether it was a pretextual search carried out for 

investigative purposes. 

{¶15} In Smartt, the police received a radio bulletin about a man with a gun in a 

red BMW parked outside a nightclub. Officers were dispatched to that location and 

arrested the man after seeing the gun in plain view. The officers also discovered cocaine 

during an inventory search. The trial court suppressed the evidence and this court 

agreed finding that, 

[w]here an investigative stop is made in response to a police radio 

broadcast, the burden is upon the state to show the factual basis for the stop, 

at a hearing on a motion to suppress. The specific nature of the 

information contained in a police bulletin cannot alone be used to prove that 

the action of the police was based upon reliable information. (Citations 

omitted.) Id., 61 Ohio App.3d at 138, 572 N.E.2d 204. 

Here, there was no investigative stop. Appellant was stopped for speeding. 

{¶16} To stop a person suspected of being wanted for criminal activity in reliance 

on a flyer or bulletin, the state has the burden to show that the officer making the stop 

acted in objective reliance on the information contained within, the issuing agency for the 
bulletin or flyer possessed a reasonable suspicion justifying the stop, and that the stop that 

in fact occurred was not significantly more intrusive than would have been permitted the 

issuing department. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 

604 (1985). 

{¶17} However, no investigatory stop was made here. Appellant was validly 

stopped for speeding and arrested because of an active warrant. “An arrest warrant 

charges law-enforcement officers to arrest the person for whom the warrant was issued. 

R.C. 2935.02; Crim.R. 4(D).” State v. Walker-Stokes, 180 Ohio App.3d 36, 

2008-Ohio-6552, 903 N.E.2d 1277, ¶ 38 (2d Dist.). An arrest warrant issued by a court 

is different from a flyer or bulletin. 

{¶18} When police act in good faith on a warrant, even when the warrant is invalid 

for some reason, the U.S. Supreme Court has held that evidence obtained as a result of the 

good faith reliance should not be suppressed. Herring v. U.S., 555 U.S. 135, 129 S.Ct. 

695, 172 L.Ed.2d 496 (2009), citing United States v. Leon, 468 U.S. 897, 921, 104 S.Ct. 

3405, 82 L.Ed.2d 677, fn.22 (1984). 

{¶19} The trial court accepted the warrant information printout that was supplied 

to Officer Borgia from his in-car computer system and his testimony that the warrant was 

confirmed by Bedford during the stop as proof of the validity of an active warrant for 

appellant’s arrest. 1 Citing to case law dealing with flyers, bulletins, and radio 

 1 It is troubling that the state did not introduce the Bedford warrant. This 

simple step would have disposed of several of appellant’s arguments on appeal. 
broadcasts, appellant claims that Officer Borgia did not act reasonably in this case and 

that the state did not introduce evidence of the reliability of the information contained in 

the warrant. 

{¶20} Here, Officer Borgia acted reasonably in arresting appellant on an 

outstanding warrant. 

{¶21} Appellant also argues that Officer Borgia did not confirm the warrant before 

beginning the search, and therefore, he did not have any basis for doing an inventory 

search. However, Officer Borgia testified that he immediately arrested appellant for the 

warrant, and that its status as an active warrant was confirmed shortly thereafter. 

{¶22} The state produced a printout of the officer’s in-car computer system that 

showed the warrant information as Officer Borgia saw it when he entered the license 

plate of the vehicle he stopped. It indicated that appellant had an outstanding traffic 

warrant from the city of Bedford and that the individual was armed and dangerous. 

Officer Borgia testified that the driver of the vehicle matched the description included 

with the warrant and that the photograph from the Department of Motor Vehicles that 

came up on his screen closely resembled the person driving the vehicle. Officer Borgia 

also did not ask to see appellant’s driver’s license, vehicle registration, and proof of 

insurance as he normally does in a traffic stop because, he testified, he was arresting 

appellant and transporting him to Bedford because of the active warrant. 

{¶23} Appellant argues that the search was for investigative purposes, not an 

inventory search, and that there is some evidence to that effect. Officer Borgia testified 
that upon opening the driver’s door when he started his search, he noticed a large number 

of air fresheners in the vehicle. He testified that this raised suspicion in his mind. He 

then opened the glove compartment on the passenger side, and a bag of marijuana fell 

out. However, the inventory sheet indicates that an inventory search was initiated within 

minutes of appellant’s arrest and not as some afterthought used to justify a search. 

{¶24} The state, arguing various other inapplicable exceptions to the warrant 

requirement, attempts to suggest that Officer Borgia had probable cause to search the 

vehicle and the trunk. No such exceptions, other than an inventory search and possibly 

inevitable discovery based on an inventory search, apply in this case. Officer Borgia did 

not have probable cause to search the vehicle according to Arizona v. Gant, 556 U.S. 332,

129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). 

{¶25} In Gant, the Court held that “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[,]” unless another exception to the warrant requirement 

applies. Id. at 351. 

{¶26} No evidence of the crime for which the stop was initiated — speeding — 

could reasonably be expected to be found within the vehicle. Also, appellant was under 

arrest and not in the vehicle when the search was conducted. He would not gain access 

to or be returned to the vehicle where he could regain possession of some contraband or 

weapon. This case hinges on the validity of the inventory search. 
{¶27} Gant and similar cases from this district have addressed searches of a 

lawfully parked vehicle and upheld the suppression of evidence. State v. Thomas, 8th 

Dist. No. 91891, 2009-Ohio-3461, (“When a vehicle is legally parked, police may not 

search it incident to arrest and conduct an inventory search”). However, where a vehicle 

is validly subject to impoundment, this court and others have held that an inventory 

search is a valid procedure to ensure the safety of the owner’s property and to protect 

police and towing contractors from claims of damage. State v. Kemp, 8th Dist. No. 

95802, 2011-Ohio-4235; State v. Swinderman, 5th Dist. No. 2009-AP-100050, 

2010-Ohio-2659. 

{¶28} In demonstrating that the vehicle was subject to tow, Officer Borgia testified 

that the vehicle was parked on the left-hand median on I-271 during a period of heavy 

traffic. He stated the vehicle could not be left there, and no one else was available to 

drive it. The state produced the village of Orange local ordinance and procedure for 

towing a vehicle, which fit the situation presented in this case. A tow truck was called, 

and an inventory sheet was started minutes after appellant’s arrest. Under these 

circumstances, the trial court’s determination that contraband was discovered during a 

valid inventory search was the correct one. 

{¶29} Appellant, in his reply brief, relies on United States v. Lopez, 567 F.3d 755 

(6th Cir.2009) as a case factually similar. However, Lopez does not consider the 

inventory exception in its opinion. It appears not to have been raised in that case. It is 

raised here, and we continue to hold that police may search a vehicle to conduct an 
inventory prior to impounding or towing it, as recognized in Mesa, 87 Ohio St.3d 105, 

717 N.E.2d 329 (1999). Gant did not address the inventory exception because the 

vehicle in that case was lawfully parked, and we decline to extend its holding to a context 

not considered therein. 

B. Maximum Term of Incarceration 

{¶30} Appellant next argues that he “was denied due process of law when the 

court sentenced [him] to a maximum term of imprisonment based upon impermissible 

factors.” 

{¶31} The Ohio Supreme Court has set forth the proper standard for the review of 

sentencing determinations made in felony cases in State v. Kalish, 120 Ohio St.3d 23, 

2008-Ohio-4912, 896 N.E.2d 124, which was adopted by this court as recognized in State 

v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, ¶ 16, fn.2. 

{¶32} Appellate courts must first “examine the sentencing court’s compliance with 

all applicable rules and statutes in imposing the sentence to determine whether the 

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first prong 

is satisfied, then we review the trial court’s decision under an abuse-of-discretion 

standard. Id. To constitute an abuse of discretion, the ruling must be unreasonable, 

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 

1140 (1983). 
{¶33} There is no argument here that the sentence is outside the statutory range, so 

we must determine if the trial court abused its discretion in imposing a maximum term for 

a third-degree felony conviction of drug trafficking. 

{¶34} R.C. 2929.11(A) provides that 

a court that sentences an offender for a felony shall be guided by the 

overriding purposes of felony sentencing. The overriding purposes of felony 

sentencing are to protect the public from future crime by the offender and 

others and to punish the offender. To achieve those purposes, the sentencing 

court shall consider the need for incapacitating the offender, deterring the 

offender and others from future crime, rehabilitating the offender, and 

making restitution to the victim of the offense, the public, or both. 

{¶35} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must 

consider when determining the seriousness of the offense and the likelihood that the 

offender will commit future offenses. 

{¶36} In the present case, appellant argues he received the maximum sentence 

based on improper findings by the trial court. During the sentencing hearing, after 

appellant indicated he had no job and started selling marijuana to support his family, the 

trial court stated: 

So you thought you’d destroy the lives of some other people’s children by 

dealing in marijuana; is that it? 

I’ll feed my children by destroying other people’s children. I’ll provide 

drugs, marijuana, to other people’s children, but I’ll use the proceeds to 

feed my children. That’s not a net positive for the community is it, Mr. 

Sanders? 

{¶37} Appellant points to this statement and the fact that no victim impact 

statement or other evidence from victims appears in the record. However, the trial court 
also stated that it considered all required factors in crafting appellant’s sentence. The 

fact that at the time of sentencing appellant was also being sentenced on another drug 

case he had been arrested on while this case was pending indicates the court did not abuse 

its discretion in imposing the maximum sentence for drug trafficking. Appellant’s 

disregard for the laws relating to the sale of controlled substances indicates that the need 

for incapacitating the offender was high in this case. R.C. 2929.11(A). 

{¶38} The trial court was not required to make findings in order to impose a 

maximum sentence. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 

97. The trial court’s discussion about the harm to the community is also not an improper 

factor. State v. Hudson, 8th Dist. No. 83359, 2004-Ohio-1452, ¶ 13; State v. Sieng, 10th 

Dist. No. 06AP-852, 2007-Ohio-1502, ¶ 17; State v. Hess, 5th Dist. No. 2003-CA-00098, 

2004-Ohio-7311. 

{¶39} The trial court did not abuse its discretion in sentencing appellant to five 

years in prison. 

C. Plea Colloquy 

{¶40} Appellant finally argues that he “was denied due process of law when the 

court did not inform [him] of the effect of the no-contest plea.” 

{¶41} Crim.R. 11(C) governs the process that a trial court must use before 

accepting a felony plea of guilty or no contest. With respect to the required colloquy, 

Crim.R. 11(C)(2) provides: 
In felony cases the court may refuse to accept a plea of guilty or a plea of no 

contest, and shall not accept a plea of guilty or no contest without first 

addressing the defendant personally and doing all of the following: 

(a) Determining that the defendant is making the plea voluntarily, with 

understanding of the nature of the charges and of the maximum penalty 

involved, and, if applicable, that the defendant is not eligible for probation 

or for the imposition of community control sanctions at the sentencing 

hearing. 

b) Informing the defendant of and determining that the defendant 

understands the effect of the plea of guilty or no contest, and that the court, 

upon acceptance of the plea, may proceed with judgment and sentence. 

(c) Informing the defendant and determining that the defendant understands 

that by the plea the defendant is waiving the rights to jury trial, to confront 

witnesses against him or her, to have compulsory process for obtaining 

witnesses in the defendant’s favor, and to require the state to prove the 

defendant’s guilt beyond a reasonable doubt at a trial at which the defendant 

cannot be compelled to testify against himself or herself. 

{¶42} The analysis differs based on the type of right alleged to have been 

deficiently explained. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 

N.E.2d 621. Two standards have developed depending upon whether the right is a 

constitutional or nonconstitutional one. In explaining constitutional rights, the trial court 

must strictly comply with Crim.R. 11, while nonconstitutional rights require only 

substantial compliance. Id. at ¶ 14-15. 

{¶43} Appellant complains that the trial court’s explanation of the effect of a no 

contest plea was deficient. This is addressing a nonconstitutional right, which means 

that the trial court must substantially comply with this mandate. “‘Substantial 

compliance means that under the totality of the circumstances the defendant subjectively 

understands the implications of his plea and the rights he is waiving.’” Id. at ¶ 15, 
quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Furthermore, a 

defendant who challenges his * * * plea on the basis that it was not knowingly, 

intelligently, and voluntarily made must show a prejudicial effect.” Id. 

{¶44} Here, the trial court explained: 

Court: And you do understand that if you plead no contest, you’re not 

telling me you’re guilty, right? 

Sanders: Right. 

Court: But you’re going to end up getting convicted of it anyway, right? 

Sanders: Yes ma’am. 

Court: By pleading no contest, you hope, will preserve your ability to take 

the Court’s ruling on the suppression motion to the Court of Appeals to see 

if they agree or disagree, right? 

Sanders: Yes ma’am. 

{¶45} After this exchange, the trial court also explained the consequences of 

pleading guilty, and then the court informed appellant of the rights he was giving up and 

the possible penalties in a thorough colloquy. Appellant argues that the trial court must 

inform him that “[t]he plea of no contest is not an admission of defendant’s guilt, but it is 

an admission of the truth of the facts alleged in the indictment, information, or complaint, 

and the plea or admission shall not be used against the defendant in any subsequent civil 

or criminal proceedings.” 

{¶46} “‘The essence of the “no contest” plea, is that the accused cannot be heard 

in defense.’” State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 424, 662 N.E.2d 370, 373 

(1996), quoting State v. Herman, 31 Ohio App.2d 134, 140, 286 N.E.2d 296 (6th 
Dist.1971), quoting Rueger, Schneider’s Ohio Criminal Code 49, Section 10.1, fn. 4 (3d 

Ed.1963). Where a trial court at least partially addressed the effects of a no contest plea 

and the colloquy is not otherwise infirm, the appellant must make a showing of prejudice 

in order to withdraw a plea. State v. Singleton, 169 Ohio App.3d 585, 2006-Ohio-6314, 

863 N.E.2d 1114 (2d Dist.). This showing can be made by demonstrating that appellant 

would not otherwise have made the plea. Veney at ¶ 15. 

{¶47} Here, appellant stated on the record that his attorney had explained the 

various options he had and that he had chosen to plead no contest and appeal the trial 

court’s decision regarding his motion to suppress. The court’s full advisement of the 

effect of a no contest plea would have made no difference in this case. Also, appellant 

has made no argument that he was prejudiced or that he would have not pled no contest if 

this advisement was given. 

{¶48} Substantial compliance is sufficient for this nonconstitutional right, and the 

court’s explanation is sufficient where appellant has made no argument regarding 

prejudice. 

III. Conclusion 

{¶49} Evidence of drug trafficking was discovered during a valid inventory search 

where appellant was arrested pursuant to an active warrant and the vehicle was going to 

be towed. Therefore, the trial court did not err in denying appellant’s motion to suppress. 

 The trial court also did not err in imposing the maximum sentence where appellant was 

convicted in another drug case as he was awaiting trial in the instant case. Finally, the 
trial court’s colloquy on the effect of a no contest plea, while sparse, was at least 

something, requiring appellant to show prejudice in order to withdraw his plea. No 

prejudice was shown here. Therefore, appellant’s convictions for drug trafficking and 

possession of criminal tools are affirmed. 

{¶50} Judgment affirmed. 

It is ordered that appellee recover from appellant 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. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

PATRICIA ANN BLACKMON, A.J., and 

KENNETH A. ROCCO, J., CONCUR