State v. Wagner , 2014 Ohio 5548 ( 2014 )

[Cite as State v. Wagner, 2014-Ohio-5548.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101153
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERELLE L. WAGNER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-579793-A
BEFORE: McCormack, J., Kilbane, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: December 18, 2014
ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John D. Kirkland
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Terelle Wagner, appeals from his conviction of carrying a
concealed weapon and having weapons while under disability. On appeal, he claims the trial
court erred in denying his motion to suppress the evidence. Finding no merit to his appeal, we
affirm the trial court’s judgment.
{¶2} Wagner was charged with carrying a concealed weapon in violation of R.C.
2923.12(A)(2), a felony of the fourth degree, and having weapons while under disability, in
violation of R.C. 2923.13(A)(3), a felony of the third degree. He filed a motion to suppress the
evidence. The trial court denied the motion after a hearing. Wagner then pleaded no contest.
The trial court found him guilty of the offenses and imposed one year of community control
sanctions.
{¶3} On appeal, Wagner raises one assignment of error, claiming the trial court erred in
denying his motion to suppress.
Testimony at the Suppression Hearing
{¶4} While on patrol at around 8:00 p.m on October 30, 2010, several police officers
received a dispatch call indicating a person being held and a gun was involved, on a house on
Walton Avenue, Cleveland. Officer Neagu was asked to assist Officers Schade and Sauders.
Officer Neagu testified that he arrived at the scene within ten minutes. He and the other two
officers walked up to the house and knocked on the front door. A male, later identified as
Kenneth Schoffner, answered the door, and the officers advised him the reason of the presence of
the officers. Schoffner let the officers in. Officer Neagu testified as follows:
Q. What did you do when you got to the residence?
A. We knocked on the front door. Person answered the door. We advised him
why we were there, that we had received a call to check about a person
being held against their will. He said there was no one there being held
against their will. Obviously given the severity of the situation, we asked if
he minded if we went in and checked and he had no problem with that and
let us in.
{¶5} Officer Shade’s testimony was consistent with a consented entry. He testified:
* * *A male did answer the door. I don't recall his name or anything like that.
He answered the door and then PO Sauders had a brief
conversation, stating why we are here, that we are here for a male held against his
will and I don’t recall what the male said at that point, but all I remember is they
made entry to the door with the male stating that I guess they were allowed, and I
checked the upstairs.
{¶6} While Officer Shade checked the upstairs unit of the house, the other officers
followed Schoffner into the downstairs unit. The apartment looked “abandoned” and in
disarray. It was also dark. The only lights that were on came from the kitchen area. The
officers had to use their flashlights. Another man stood in the darkness in the dining room area.
Officer Neagu found it peculiar that this man, later identified as Wagner, was just standing there
in the darkness. Because of the nature of the dispatch call, Officer Neagu asked the two men if
there was anyone else in the house. Both said no.
{¶7} At that point, Officer Neagu was standing with his back to a door. To ensure his
safety, he turned around and opened the door, which revealed a closet in which a male was
standing in the pitch dark with his back to the doorway. Officer Neagu ordered the man out of
the closet and immediately ordered all three men on the ground. The officers then handcuffed
them and patted them down for weapons. While patting down Wagner, Officer Neagu felt a
magazine clip. Wagner admitted he had a gun on him. A loaded gun was found on his
waistband.
{¶8} Officer Fairchild testified that he removed the gun from Wagner’s waistband. It
was a semiautomatic handgun, a 0.380 Hi Point. Two other officers testified. Officer Schuler
testified that he and his partner, Officer Lozinak, heard a Code One radio broadcast regarding a
male being held by a gun. When they arrived at the house, the men in the house were already
detained by the other officers. He explained Code One is the most serious radio broadcast.
Officer Shade testified he checked the upstairs unit while the other officers went into the
downstairs unit — Wagner’s apartment.
{¶9} Wagner testified on his own behalf. He admitted to prior offenses of drug
trafficking, burglary, and having weapons while under disability. He testified that he shared
the apartment with Schoffner and Schoffner’s then-girlfriend. Schoffner’s sister and her
boyfriend also stayed there but had moved out. On the day of the incident, an acquaintance
Juan Broom — the man standing inside the closet, was there. Wagner explained the house was
in disarray because they were packing up to move out of the house. He stated that before the
police came, he, Schoffner, and Broom rolled up some joints and were about to smoke. Wagner
stated he recognized the voice in the 911 call as the voice of a friend, “Nook,” but could not
explain why “Nook” made the call.
{¶10} Although the “dispatch narrative” in the police report in this case contained a
notation “unsure if this is real or a prank,” the officers were not aware of the uncertainty.
Standard of Review
{¶11} An appellate review of a motion to suppress presents a mixed question of law and
fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We accept
the trial court’s findings of fact if they are supported by competent, credible evidence. State v.
Preztak, 181 Ohio App. 3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.). Once we
accept the factual findings as true, however, we must independently determine, as a matter of law
and without deference to the trial court’s conclusion, whether the trial court's decision meets the
applicable legal standard. State v. Lloyd, 126 Ohio App. 3d 95, 709 N.E.2d 913 (7th Dist.1998).
{¶12} Wagner claims the anonymous tip did not provide the police with probable cause to
make a warrantless entry and search of the home.
{¶13} Our review of the suppression hearing transcript shows that the police entered
Wagner’s apartment with consent. However, even if the consent was not clearly reflected by
the testimony, as Wagner claims, the police entry would qualify under the emergency-aid or
exigent-circumstance exception to the Fourth Amendment’s warrant requirement.
Emergency-Aid or Exigent-Circumstance Exception
{¶14} Warrantless searches are presumptively unconstitutional, but several exceptions
to the warrant requirement have been delineated by the courts, including the one pertinent to this
case, the “community-caretaking exception,” which courts sometimes refer to as the
“emergency-aid exception” or “exigent-circumstance exception.” State v. Dunn, 131 Ohio
St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 15. The exception is based on a recognition that
[p]olice officers are not simply criminal law enforcers, charged with investigating
criminal conduct and developing and maintaining evidence of crime. They have
other roles, one of which is their community health, safety, and protection role.
Police officers are charged with the duty to prevent crime, preserve the peace, and
protect persons and property.
State v. Russell, 127 Ohio App. 3d 414, 417, 713 N.E.2d 56 (9th Dist.1998), citing State v. Hyde,
26 Ohio App. 2d 32, 33, 268 N.E.2d 820 (9th Dist.1971).
{¶15} Accordingly, “‘[t]he Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably believe that a person within is in need of
immediate aid.’” State v. Nields, 93 Ohio St. 3d 6, 16, 752 N.E.2d 859 (2001), quoting
Mincey v. Arizona, 437 U.S. 385, 391, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). “‘The need to
protect or preserve life or avoid serious injury is justification for what would be otherwise illegal
absent an exigency or emergency.’” Dunn at ¶18, quoting Wayne v. United States , 318 F.2d 205,
212 (D.C.Cir.1963) (the community-caretaking/emergency-aid exception allows a
law-enforcement officer to act without a warrant when the officer has objectively reasonable
grounds to believe that there is an immediate need for the officer’s assistance to protect life or
prevent serious injury); Hyde, supra (the emergency-aid exception to the warrant requirement
is satisfied by a showing the police officers had reasonable grounds to believe that some kind of
emergency existed). “The ultimate standard set forth in the Fourth Amendment is
reasonableness.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 37 L. Ed. 2d 706
(1973). “Reasonable belief is assessed from the facts and circumstances known to the officers,
and from their point of view.” Lakewood v. Simpson, 8th Dist. Cuyahoga No. 80383,
2002-Ohio-4086, ¶ 14, citing State v. Robinson, 103 Ohio App. 3d 490, 496, 659 N.E.2d 1292
(1st Dist.1995).
{¶16} We are aware that the dispatch here was based on an anonymous tipster, the
least reliable among different classes of informants. However, whether an anonymous tip
provides reasonable suspicion or probable cause is determined by the totality of the
circumstances. Navarette v. California, 572 U.S. ___, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014).
{¶17} Here, although there appeared to be a notation in the dispatcher’s note that the call
might be a prank, the officers were not aware of that uncertainty. The officers believed they
were responding to a Code One dispatch, the highest priority call, involving the presence of a gun
and a person in imminent harm’s way. The courts have noted that “‘[t]he business of policemen
and firemen is to act, not to speculate or meditate on whether the report is correct. People could
well die in emergencies if police tried to act with the calm deliberation of the judicial process.’”
State v. Johnson, 8th Dist. Cuyahoga No. 96983, 2012-Ohio-1344, ¶ 11, quoting Wayne at 212.
The entry, if indeed without consent as Wagner claims, was justified by the officers’ reasonable
belief that entering the residence was necessary to investigate what appeared to be an emergency.
See Dunn, 131 Ohio St. 3d 325, 2012-Ohio-1008, 964 N.E.2d 1037 (the court cited with
approval a Florida Supreme Court case that held that the warrantless entry and search of an
apartment in response to a call indicating that a person in the apartment had threatened to kill
himself was lawful because of exigent circumstances indicating the need for help).
{¶18} Once the officers entered the apartment, their suspicion of a potential criminal
activity was not dispelled. They saw a dark apartment in disarray and a male standing in the
darkness. There was no TV watching or other usual household activities going on in the
apartment. Immediately after the two men in the apartment assured the officer that no one else
was in the apartment, the officer opened a door behind him — understandably to secure the
officers’ safety — a third man was found standing inside the pitch-dark closet, contradicting the
two men’s representation. Under these circumstances, the officers’ belief they had an
immediate need to protect themselves was prudent and not unreasonable. They were, of
necessity, entitled to search the three men for weapons to ensure their own safety. As the
Supreme Court of Ohio cautioned, “‘[w]e cannot blind ourselves to the need for law
enforcement officers to protect themselves and other prospective victims of violence in situations
where they may lack probable cause for an arrest.’” State v. Andrews, 57 Ohio St. 3d 86, 89,
565 N.E.2d 1271, quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
{¶19} For the foregoing reasons, we overrule the assignment of error. The trial court’s
judgment denying the motion to suppress the evidence is affirmed.
It is ordered that appellee recover of 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.
______________________________________________
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR