Opinion
Case No. 18-CA-00024
12-30-2019
STATE OF OHIO Plaintiff-Appellee v. BRIAN L. YOST Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee: JOSEPH A. FLAUTT PERRY COUNTY PROSECUTOR 111 North High Street P.O. Box 569 New Lexington, OH 43764-0569 For Defendant-Appellant: JAMES S. SWEENEY 285 South Liberty St. Powell, OH 43065
JUDGES: Hon. Patricia A. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 18-CR-0022 JUDGMENT: AFFIRMED APPEARANCES: For Plaintiff-Appellee: JOSEPH A. FLAUTT
PERRY COUNTY PROSECUTOR
111 North High Street
P.O. Box 569
New Lexington, OH 43764-0569 For Defendant-Appellant: JAMES S. SWEENEY
285 South Liberty St.
Powell, OH 43065 Delaney, P.J.
{¶1} Defendant-Appellant Brian L. Yost appeals the November 9, 2018 judgment entry of the Perry County Court of Common Pleas denying his Motion to Suppress.
FACTS AND PROCEDURAL HISTORY
{¶2} On April 25, 2018, the Perry County Grand Jury indicted Defendant-Appellant Brian L. Yost on seven counts: (1) Illegal Cultivation of Marihuana, a second-degree felony in violation of R.C. 2925.04(A) and (C)(5)(f), with a forfeiture specification under R.C. 2981.02 and 2981.04; (2) Illegal Manufacture of Drugs, a second-degree felony in violations of R.C. 2925.04(A) and (C)(2), with a firearm specification under R.C. 2941.141; (3) Trafficking in Marihuana, a second-degree felony in violation of R.C. 2925.03(A)(2) and (C)(3)(f), with a forfeiture specification under R.C. 2981.02 and 2981.04 and a firearm specification under R.C. 2941.141; (4) Possessing Criminal Tools, a fifth-degree felony in violation of R.C. 2923.24(A); (5) Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs, a third-degree felony in violation of R.C. 2925.041(A) and (C); (6) Money Laundering, a third-degree felony in violation of R.C. 1515.55(A)(3); and (7) Receiving Stolen Property, a fourth-degree felony in violation of R.C. 2913.51(A). Yost entered a not guilty plea to all charges.
{¶3} Yost filed a Motion to Suppress on August 7, 2018. The trial court held a hearing on the motion on October 12, 2018. The following evidence as adduced at the hearing.
{¶4} On September 19, 2017, Detective Lieutenant Kevin Starrett and Detective Todd Kanaval were both working as part of the Central Ohio Drug Enforcement Task Force. Pursuant to an anonymous tip from the Delaware County Drug Task Force about a marijuana grow operation, Det. Starrett and Det. Kanaval went to the residence of Troy Yost located on Butcher Knife Road. The Detectives met Troy Yost at his residence and he consented to a search of his premises. The Detectives discovered a semi-trailer used as a marijuana grow operation with grow equipment and remnants of marijuana plants. Det. Starrett asked Troy Yost if his brother was Defendant-Appellant Brian L. Yost and he stated that Brian Yost was his brother. Det. Kanaval was familiar with Brian Yost because in 2013, he assisted with the investigation of a grow operation found at the residence of Brian Yost. Troy Yost advised the officers that his brother owned half of the grow equipment found in the semi-trailer. Brian moved his grow equipment to Troy's property after the 2013 incident. Troy stated that he was not currently speaking with his brother and he did not know if there was anything at Brian's house.
{¶5} Based on the information from Troy Yost, Dets. Starrett and Kanaval decided to conduct a knock and talk at the residence of Brian Yost, located in Roseville, Ohio. They wanted to speak to Brian Yost about what was found at his brother's property. When the Detectives arrived at Brian's property, they found the front yard overgrown with tall grass. The front door of the residence appeared to be unused because there was no path through the tall grass to the door. The officers went down the driveway and observed a set of stairs leading to an elevated deck and a side door to the house. They climbed the stairs and heard loud music coming from the back side of the house. The officers knocked on the side door and yelled "Sheriff's Office" several times, but they did not receive an answer.
{¶6} Det. Starrett walked on the deck to the back of the house where he heard the music, thinking someone was at the back of the house to whom he could speak. He saw hydration pellets in the backyard of the home, which are used in marijuana growing operations. At the back of the house, he saw a sliding glass door. The sliding glass door was open, but the screen door was shut. As he approached the screen door, Det. Starrett heard loud music coming from inside the house. Both officers smelled the odor of burnt marijuana coming from inside the house. They testified the smell of burnt marijuana does not last very long. Det. Starrett knocked on the door and yelled "Sheriff's Office" and "come to the door" several times through the screen door.
{¶7} Based on the 2013 discovery of a grow operation at Brian Yost's residence, the information received from Troy Yost about his grow operation and Brian's involvement, the smell of burnt marijuana, and the hydration pellets in the yard, the officers made the decision to apply for a search warrant. They asked to have a uniformed deputy with a marked unit dispatched to watch the residence while Dets. Starrett and Kanaval left to obtain the search warrant. Perry County Sheriff's Deputy Brandon Eveland reported to Brian Yost's property.
{¶8} When Deputy Eveland arrived, Dets. Starrett and Kanaval went back to the side door and knocked and announced several times. They went to the back door and knocked and announced several times. No one answered the doors.
{¶9} Before the Detectives left Deputy Eveland at the property so they could obtain the search warrant, they made the decision to conduct a protective sweep of the property. Det. Kanaval testified the purpose of a protective sweep is to only look for personnel, not evidence. During a protective search, the officer searches closets, behind curtains, and under beds - wherever a person could hide. The officers do not open drawers or containers. The officer conducts a sweep to preserve evidence from being destroyed and to protect officers on the scene from violence. In their experience with drug crimes, Dets. Starrett and Kanaval knew that firearms were often seized at the scene. There was a concern for officer safety during drug-related offenses. The officers testified they knew of Ohio police officers who were shot during investigations of marijuana grow operations.
{¶10} The three officers conducted a protective sweep of the residence. During their sweep, they did not take photographs or seize any items in the residence. They started on the upstairs level of the residence and found the source of the loud music but did not locate any people. They went to the basement to look for people, heard music playing, and smelled raw marijuana. They searched the rooms in the basement and found a clock radio playing music and items consistent with a marijuana grow operation. After the officers determined no one was in the home, the officers exited the residence. Dets. Starrett and Kanaval left to obtain the search warrant and Deputy Eveland remained.
{¶11} The Detectives obtained a search warrant and a search of the residence was conducted and evidence was secured, resulting in the charges against Brian Yost.
{¶12} The State filed a memorandum in opposition to the Motion to Suppress on October 25, 2018. Brian Yost filed proposed findings of fact and conclusions of law on October 31, 2018.
{¶13} On November 9, 2018, the trial court issued its judgment entry denying Brian Yost's Motion to Suppress. The trial court found the officers conducted a permissible limited protective sweep of the residence based on their belief that someone may be in the residence that could destroy evidence or pose a danger to officers on the scene.
{¶14} On November 9, 2018, Brian Yost entered a plea of no contest to Illegal Cultivation of Marihuana, a third-degree felony in violation of R.C. 2925.04(A) and (C)(5)(e), with a forfeiture specification under R.C. 2981.02 and 2981.04; Money Laundering, a third-degree felony in violation of R.C. 1515.55(A)(3); and Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs, a third-degree felony in violation of R.C. 2925.041(A) and (C). The State entered a Nolle Prosequi to the balance of the remaining charges.
{¶15} The trial court held a sentencing hearing on November 29, 2018. The trial court sentenced Brian Yost to a prison term of two years on the charge of Illegal Cultivation of Marihuana; 18 months on the charge of Money Laundering; and one year on the charge of Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs. All sentences were ordered to be served consecutively.
{¶16} The sentencing entry was filed on November 30, 2018. It is from this judgment entry that Brian Yost now appeals.
ASSIGNMENT OF ERROR
{¶17} Brian Yost raises one Assignment of Error:
{¶18} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS."
ANALYSIS
{¶19} Brian Yost contends in his sole Assignment of Error that the trial court should have granted his motion to suppress. We disagree.
{¶20} Appellate review of a trial court's decision to deny a motion to suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court's decision meets the applicable legal standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other grounds.
{¶21} There are three methods of challenging a trial court's ruling on a motion to suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In reviewing a challenge of this nature, an appellate court must determine whether the trial court's findings of fact are against the manifest weight of the evidence. See State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See Williams, supra. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issues raised in a motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶22} In his motion to suppress, Brian Yost challenged the search of his residence because there were no specific or articulable facts to justify the officers to conduct a "protective sweep" of the residence. The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." State v. Diaz, 5th Dist. No. 2016 CA 00113, 2017-Ohio-262, 81 N.E.3d 866, 2017 WL 361429, ¶ 15. The government may not intrude into areas where legitimate expectations of privacy exist. In determining whether the Fourth Amendment protects against a search, "the rule that has emerged * * * is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' " State v. Schorr, 5th Dist. Fairfield No. 13-CA-45, 2014-Ohio-2992, 2014 WL 3031122, ¶ 24 Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), (Harlan, J., concurring); See Rakas v. Illinois, 439 U.S. 128, 143-144, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Williams, 73 Ohio St.3d 153, 166-167, 652 N.E.2d 721 (1995).
{¶23} A warrantless search of a person's home is presumed unreasonable unless an exception to the warrant requirement is shown. State v. Diaz, 2017-Ohio-262 at ¶ 16 citing State v. Angelo, 9th Dist. Summit No. 24751, 2009-Ohio-6966, 2009 WL 5174158, ¶ 10. There are several judicially recognized exceptions to the search warrant requirement. In Maryland v. Buie, the United States Supreme Court approved the "protective sweep," holding officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched but "[b]eyond that, however * * * must have articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." State v. Schorr, 5th Dist. Fairfield No. 13-CA-45, 2014-Ohio-2992, 2014 WL 3031122, ¶ 35 citing 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. at 327.
{¶24} Articulable facts existed in this case warranting the officers' belief that a person might be present in the residence and that person could pose a danger to the police officer remaining on the scene. Dets. Starrett and Kanaval came to Brian Yost's residence to speak to him regarding his marijuana grow equipment found at this brother's house. The Detectives knew that Brian Yost had been involved in a marijuana grow operation at the Roseville residence in 2013. When the officers arrived at the residence, they smelled burnt marijuana emanating from inside the home through an open sliding glass door. They heard loud music coming from the home. The officers testified that in their experience, there is a potential for violence when drugs are involved and firearms have been involved with the investigation of marijuana grow operations. The smell of burnt marijuana, open sliding glass door, and sound of loud music coming from the home suggested there was a person at the residence when the officers arrived. For the safety of Deputy Eveland who was to remain at the home while the Detectives secured a search warrant and to prevent the destruction of evidence while they obtained the search warrant, the officers conducted a limited protective sweep of the residence. They did not take photographs or collect evidence. Their search was limited to areas where a person could conceal him or herself.
{¶25} We find no error for the trial court to deny Brian Yost's motion to suppress. His sole Assignment of Error is overruled.
CONCLUSION
{¶26} The judgment of the Perry County Court of Common Pleas is affirmed. By: Delaney, P.J., Baldwin, J. concur with Wise, Earle, J., .dissenting separately Wise, Ea, J., dissents.
{¶ 27} I respectfully dissent from the majority's opinion. I would reverse the trial court and find the motion to suppress should be granted.
{¶ 28} The trial court found the police had probable cause prior to the warrantless entry. The trial court then found the warrantless entry valid based on probable cause and exigent circumstances relating to concerns for officer safety and to prevent the destruction of evidence.
{¶ 29} Appellant's single assignment of error argues that the trial court incorrectly decided the ultimate or final issues in denying his motion to suppress. I agree.
Probable Cause for Search Warrant
{¶ 30} In denying the motion to suppress, the trial court found the following at 4:
Detective Kanavel and Lieutenant Starrett had probable cause in advance of their entry to believe there was a criminal drug operation being carried on in Brian Yost's house. They had been to his house in 2013 regarding a previous indoor marihuana grow. Brian Yost's brother [Troy Yost] had just consented to a search of his [Troy's] property. The search uncovered a grow room with equipment and marihuana leaves. Brian Yost's brother said half of the equipment belonged to Brian. When they [the detectives] arrived at Brian's house, they could smell a strong scent of burnt marihuana. They further saw hydration pellets in the back yard, which are used in indoor grows. They, therefore, had probable cause to believe that an indoor grow operation was present at the home.
{¶ 31} The test for probable cause is the totality of the circumstances. Illinois v. Gates, 463 U.S. 213, 103 S.Ct 2317, 76 L.Ed.2d 527 (1983). Did the testimony proffered by the state and cited by the trial court, in its totality, constitute probable cause that evidence of "a criminal drug operation" or contraband existed inside appellant's residence as the police stood outside on appellant's back porch on September 19, 2017?
{¶ 32} In 2013, the police went to appellant's house and found what they described as a grow operation. The record indicates a small amount of marijuana was found as well as "a lot of equipment, [a] fairly well organized indoor grow." Suppression Hearing Transcript at 8. Appellant was never arrested or charged with a crime as a result of that incident. Tr. at 48. The record does not make clear why appellant was not arrested if there was such compelling evidence of an illegal grow at the time. However, even if one were to assume there was a functioning marijuana grow operation at appellant's residence in 2013, that information is too remote in time to be evidence of appellant having a marijuana grow operation at his residence in September of 2017.
{¶ 33} Earlier in the day on September 19, 2017, the police had obtained evidence of a recent grow operation inside a semi-truck trailer at the residence of appellant's brother, Troy. Troy confessed to the operation of a marijuana grow in the trailer within the past several months. Troy also said appellant was involved in and was principally responsible for the operation, and half of the grow equipment in the trailer was appellant's.
{¶ 34} Detective Starrett testified he asked Troy about the 2013 search at appellant's house. Troy said, "well, that's why I have the equipment up here, because Brian moved it here after the incident that occurred in 2013." Tr. at 32. The detective testified he specifically asked Troy "if there was anything at Brian's house" to which Troy responded "that he didn't know." Id. With this information, the detectives went to appellant's residence and attempted a knock and talk.
{¶ 35} Upon arrival at appellant's house, the detectives went up a set of stairs to a raised porch and knocked on a door on the side of the residence. Based upon the photo exhibits admitted at the suppression hearing, this side door reasonably appeared to be the commonly used entrance for any member of the public approaching the residence. State's Exhibits 1 and 2. The detectives heard loud music from inside the residence, yet no one answered the door. The porch wrapped around the house from the side door to the back of the house and overlooked the backyard. State's Exhibits 3 and 4. The detectives, still on the raised porch, walked around to the rear of the residence. At the rear of the residence they encountered an open sliding glass door with a screen door which was closed. They knocked and announced their presence.
{¶ 36} The detectives smelled a strong odor of burnt marijuana. Based upon the open door, loud music playing, and recently burnt marijuana, the detectives reasonably believed appellant may have been inside the residence and was not coming to the door.
{¶ 37} While still on the back porch, the detectives observed hydration pellets on the ground in the backyard. The detectives testified in their experience, this type of pellet was often used in the growing of marijuana. The presence of the pellets in the backyard certainly might lead police to be suspicious. However, these pellets are not illegal, have legal uses, and standing alone are not evidence of illegal activity.
{¶ 38} There was no testimony as to how these pellets are evidence of a current grow operation inside the residence. There was no evidence of the presence of marijuana stems or leaves mixed in or among the pellets. The detectives did not indicate that these pellets were observed in the illegal grows either earlier in the day at Troy's residence or in 2013 at appellant's residence.
{¶ 39} When the detectives arrived at appellant's home, they had solid evidence appellant was involved in a recent grow in the trailer at Troy's. However, they had no evidence of any contraband inside appellant's residence, nor any information that appellant currently or recently had a grow operation in his residence. They had no tip from any source. In fact, they had information from Troy that tended to contradict the belief that appellant harbored evidence relating to a grow in the residence. Troy said the equipment found earlier that day in the trailer had been moved there from appellant's residence in 2013. Troy, who freely implicated appellant in the trailer grow operation, specifically told the detectives he was unaware of anything currently at appellant's residence.
{¶ 40} In considering all of the information in total: the 2013 incident at appellant's residence, the information obtain from Troy's residence, and the 2017 observations made at appellant's residence, I find that prior to the entry of the residence, the detectives did not have sufficient evidence that would support probable cause for a search warrant to be issued for appellant's residence.
Protective Sweep to Prevent Evidence Destruction
{¶ 41} The trial court found exigent circumstances existed to justify the initial warrantless entry. On pages two, three, and four of its judgment entry, the trial court repeatedly indicated that the detectives had a concern about possible destruction of evidence by someone in the house. At 3-4, the trial court quoted from the United States Supreme Court's opinion, Segura v. U.S., 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), as follows: "Securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being obtained, is not itself an unreasonable seizure of either the dwelling or its contents. Absent exigent circumstances, a warrantless search is illegal." (Emphasis added.)
{¶ 42} The Segura court expressly sanctioned the protective sweep on the basis of probable cause. Because I find the detectives in this case lacked probable cause for a search warrant, I also conclude they could not enter appellant's home without a warrant to secure evidence. If there was not sufficient evidence to reasonably believe evidence existed inside the residence, then no exigency existed for a warrantless entry to prevent the removal or destruction of evidence.
{¶ 43} In Segura, the police conducted a warrantless entry which the lower court found to be illegal and suppressed the evidence which was found in plain view during the warrantless entry. That aspect of the case was not appealed to the Supreme Court. Rather, the Supreme Court was asked to decide if additional evidence found in the apartment during the later execution of a valid search warrant was admissible. The police secured the apartment for nineteen hours due to an administrative delay in getting the search warrant signed. The Segura court held the additional evidence was admissible because different officers were already seeking a search warrant in good faith with information obtained before the warrantless entry. In other words, the information gleaned during the warrantless (illegal) entry was not used as evidence for the probable cause affidavit to obtain the search warrant.
{¶ 44} In the instant case, the detectives did not seek a search warrant with the information gathered prior to the protective sweep of the home. The police entered the home to search for persons and observed a marijuana grow operation which was not visible from the outside of the residence. The evidence observed in the warrantless entry was used for the purpose of obtaining the search warrant.
{¶ 45} Exigent circumstances are those where an officer is expected to act in the face of an actual and ongoing emergency. In State v. Price, 134 Ohio App.3d 464, 468, 731 N.E.2d 280 (9th Dist.1999), the Ninth District set out the general test as follows:
Although there is no precise list of all the exigent circumstances that might justify a warrantless search, exigent circumstances generally must include the necessity for immediate action that will "protect or preserve life or avoid serious injury," or will protect a governmental interest that outweighs the individual's constitutionally protected privacy interest.
{¶ 46} The government interest alleged here is the preservation of potential evidence. The protected privacy interest is the sanctity of one's home; the interest historically afforded the highest level of protection under the Fourth Amendment.
{¶ 47} Clearly there was evidence of a minor misdemeanor, the odor of burnt marijuana. The privacy interest of the home cannot be reasonably outweighed by the interest in preserving evidence of such a minor offense. See State v. Miller, 6th Dist. Wood No. WD-10-027, 2011-Ohio-1545 (smoking marijuana, a minor misdemeanor, does not permit a warrantless entry as exigent circumstances); State v. Jenkins, 104 Ohio App.3d 265, 661 N.E.2d 806 (1st Dist.1995) (the mere presence of destructible contraband does not create exigent circumstances). But see State v. Striks, 2nd Dist. Montgomery No. 26387, 2015-Ohio 1401 (police go to a home for a separate purpose and smell burnt marijuana; court upheld entry finding probable cause of a crime; exigent circumstances applied because of easily disposable evidence and not a minor crime because jail time was possible; police had information that earlier in the day, money was given to a person in the house to buy a quarter pound of marijuana).
{¶ 48} Additionally, the police cannot create the exigency by their own conduct and then enter the residence to prevent the destruction of evidence. State v. Sheppard, 144 Ohio App.3d 135, 141, 759 N.E.2d 823 (1st Dist.2001). The Sheppard court cited a decision from the Second District, State v. Sims, 127 Ohio App.3d 603, 713 N.E.2d 513 (2d Dist.1998), which disapproved a warrantless entry where the police created the exigency. In Sims, the police observed marijuana inside a residence and knocked on the door to request permission to enter which prompted the resident to try to dispose of the evidence.
{¶ 49} In Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), the United States Supreme Court addressed a knock and talk/exigent circumstances situation where officers smelled burnt marijuana. The officers had previously observed what they thought was a hand to hand drug deal on the street. The seller then entered an apartment building. The officers followed and knocked on the door they thought he had entered. Upon approaching the door, the officers smelled the odor of burnt marijuana. Once they knocked and announced themselves as law enforcement, they " 'could hear people inside moving,' and '[i]t sounded as [though] things were being moved inside the apartment.' " King at 456. These noises led the officers to believe "that drug-related evidence was about to be destroyed." Id. The court upheld the warrantless entry.
{¶ 50} However, the King court at 469-470, found generally that occupants in a residence do not have to respond to a knock on the door and such lack of response does not create exigent circumstances:
When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. When the police knock on a door but the occupants choose not to respond or to speak, "the investigation will have reached a conspicuously low point," and the occupants "will have the kind of warning that even the most elaborate security system cannot provide." And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. (Citations omitted.)
{¶ 51} Having assumed that an exigency existed, the court held that the occupants ran afoul of their rights by the actions they took after the police knocked and announced their presence. "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent circumstances search that may ensue." Id. at 470.
{¶ 52} In the instant case, the detectives had a choice as to how they wished to proceed with their investigation. They chose to do a knock and talk. No testimony was presented that the detectives heard noises which could reasonably be associated with the destruction of evidence. If appellant was inside and refused to acknowledge the police, he simply chose to stand on his constitutional rights. There was no evidence of any activity that would justify a belief that evidence was being destroyed.
{¶ 53} I find exigent circumstances did not exist to justify a protective sweep of the residence to prevent removal or destruction of evidence.
Protective Sweep for Officer Safety
{¶ 54} The trial court found the protective sweep of appellant's residence was justified on the basis of officer safety. The trial court referenced Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) and wrote: "The Fourth Amendment permits a properly limited protective sweep when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." This statement is nearly a direct quote of the syllabus of Buie; however, it left out several important words. The Buie syllabus reads as follows: "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." (Emphasis added.)
{¶ 55} Mr. Buie was one of two suspects in a recent armed robbery. The police had a valid arrest warrant for him. The police verified Mr. Buie was present in his home by having someone speak with him on the phone. The police entered his residence under the authority of the arrest warrant. Once inside, the police called out to him and he emerged from a basement stairwell. He was arrested. A police officer immediately did a quick sweep of the basement area from where Buie had appeared to ensure that no one else was present in the basement that might be a threat to the police.
{¶ 56} Buie is inapposite to the situation presented here. First, Buie was a case where the protective sweep was appropriate because the police were already lawfully inside the residence to execute a valid arrest warrant. The Buie majority at 335-336 emphasized the following:
[T]hat such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer that it takes to complete the arrest and depart the premises. (Footnote omitted.)
{¶ 57} Arresting officers may take reasonable measures that are necessary to protect themselves while making an in-home arrest and while exiting the residence. Buie does not sanction a warrantless entry into a residence for officer safety.
{¶ 58} Even ignoring the fact that Buie relates to in-home arrests, Buie additionally limits the protective sweep to a situation where the arresting officer "possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 325. (Emphasis added.) In Buie, the defendant was one of two suspects in a recent felony offense of violence involving weapons.
{¶ 59} The pre-warrant sweep in this case was not based upon specific and articulable facts that appellant posed a danger. The detectives testified that drug situations are always potentially dangerous. Tr. at 17-18, 37. Detective Kanavel testified that he viewed everyone as a threat to police. Tr. at 16-17. The primary reason given by the detectives and cited by the trial court for the need to enter the residence for officer safety was general in nature and in no way specific to the situation at hand or to appellant. Detective Starrett testified he was aware of three incidents in Ohio between 2010 and 2014 wherein officers were shot on a marijuana grow scene. Tr. at 37, 47. No details were provided as to the facts in those cases.
{¶ 60} More relevant, there were no specific and articulable facts proffered as to why the detectives had a reasonable belief that appellant was an individual who posed a danger to those on the scene. In fact, just the opposite was true. The police were familiar with appellant from at least 2013 and the detectives testified on cross-examination they had no indication of him having a history of violence or possessing weapons.
{¶ 61} The majority in paragraph 23 cites our opinion in State v. Schorr, 5th Dist. Fairfield No. 13-CA-45, 2014-Ohio-2992, for additional support of a protective sweep for officer safety. I also find the facts of Schorr support a protective sweep for both officer safety as well as anyone else on the scene in that matter. In that case, the police received an anonymous call which reported that Schorr and two other named men were currently cooking methamphetamine at a particular residence. The caller reported that one man was waving a gun. The police went to the residence. While in the driveway, an officer who had investigated over 300 methamphetamine labs smelled a strong odor of ether, a common ingredient in methamphetamine production. The officer then saw two tarps hanging from a patio concealing a carport. The officer saw two men through a gap in the tarps. The officer saw the men in close proximity to various jars of liquid and a plastic bottle with an extended tube. The officer was familiar with these items as implements of methamphetamine manufacture. The men were called out and detained. An officer then went into the home looking for the reported third man with the gun as well as to clear the home because of the danger of fire or explosion associated with meth labs. We concluded at ¶ 36: "Articulable facts exist in this case warranting the deputies' belief a third person, possibly armed, might be present. A protective sweep of the house for the third person was reasonable." Additionally, R.C. 2933.33(A) provides because of the immediate danger of fire or explosion involved with an active meth lab, the police have exigent circumstances and reasonable grounds for a search of the premises. Id. at ¶ 37, 38.
{¶ 62} The facts in the instant case bear little or no resemblance to the facts in Schorr.
{¶ 63} I find exigent circumstances did not exist to justify a protective sweep of the residence for officer safety.
Conclusion
{¶ 64} I find the information gathered during the initial entry was the only evidence that would support a search warrant. The home was in effect searched without probable cause or exigent circumstances. The evidence gathered in the warrantless search was then the justification for the issuance of the later search warrant to search the home. I would grant the assignment of error, and find that the motion to suppress should have been granted and all evidence found inside appellant's residence on September 19, 2017, should have been excluded.
/s/_________
Hon. Earle E. Wise, Jr.