State v. Zax-Harris , 2006 Ohio 1855 ( 2006 )

{¶ 23} "The Constitution only protects against unreasonable intrusions, whether it is a search or a seizure. Police conduct which is neither a search nor a seizure is not subject to review under the Fourth Amendment." Katz, Ohio Arrest, Search and Seizure (2002 Ed.), Section 1.5.

{¶ 24} I agree that when Officer Lewis brought defendant Zax-Harris inside her house, her failure to object to his entry can't be construed as her consent to the intrusion, either express or implied. However, her consent was required only if, absent her consent, the intrusion constituted a search or seizure and if it was unreasonable.

{¶ 25} Officer Lewis brought defendant back into her house in order to take a statement from her concerning the crime of which she was the victim. There is no basis in the record for concluding either that he suspected defendant of committing a crime or that his purpose was to locate and seize evidence that might implicate defendant in criminal activity. Therefore, the intrusion was not a search or a seizure.

{¶ 26} Once inside the house, Officer Lewis saw crack cocaine "in plain view." He was authorized to seize it and arrest defendant for the crime related to her possession of it, but only if his presence in the house was lawful. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022,29 L.Ed.2d 564. The officer's presence there was lawful for Fourth Amendment purposes because it was not for purposes related to a search and because the intrusion that put him there — to take a victim's statement — was reasonable under the circumstances.

{¶ 27} I would affirm.