State v. Andrews , 177 Ohio App. 3d 593 ( 2008 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] {¶ 1} Appellant, Phyllis J. Andrews, appeals from the October 2, 2007 judgment entry of the Geauga County Court of Common Pleas, Juvenile Division, which accepted her plea of no contest and found her guilty of one count of contributing to the delinquency to a minor, sentencing her to serve a seven-day sentence in the Geauga County Safety Center, and ordering her to pay a $250 fine. For the following reasons, we reverse and remand.

{¶ 2} Substantive and Procedural Facts

{¶ 3} Andrews was found guilty of one count of contributing to the delinquency of a minor, a misdemeanor of the first degree in violation of R.C. 2919.24(A)(2), following a party that involved minors drinking alcohol in her home. On the evening of May 18, 2007, the Bainbridge police responded to a call that there was a juvenile drinking party in the area. The house was quiet on their arrival. They walked to the backyard, which they found abandoned and strewn with beer cans and a burning bonfire. The officers peeked through the basement windows, observed a group of juveniles with beer cans and cups on a table nearby, and approached the front door. Sometime later, they entered Andrews's home without a warrant, and she was subsequently charged and arrested for contributing to the delinquency of a minor.

{¶ 4} On August 23, 2007, Andrews filed a motion to suppress, arguing that the evidence of underage alcohol consumption, which was obtained from the warrantless search of her residence, should be suppressed because there were no exigent circumstances that required a warrantless search of her home or seizure of her person.

{¶ 5} The hearing on her motion was held on September 7, 2007, at which time Bainbridge Officer April Kallay and Sergeant Dale Buckingham testified for the state. Officer Kallay testified that when she arrived on the scene with Sergeant Buckingham, she noticed approximately a dozen cars parked on the side of the road. The house was dark and quiet. Notably absent was a party scene out of control. Beer cans and cups were lying around the vicinity of the vehicles, the yard, and the house.

{¶ 6} The officers then walked to the backyard, where they found the yard abandoned, with a bonfire still burning. Officer Kallay noticed that there were lights on in the back basement window, and when she peered inside, she observed several juveniles, who appeared to be drinking in the basement. Red Solo cups, beer cans, and a "beer bong" funnel were on a table.

{¶ 7} Sergeant Buckingham went to the front door and spoke with Andrews, whom he believed to be the homeowner. He advised her that they were responding to a 911 call and that there were juveniles drinking in the basement. Upon the sergeant's request for her identification, she shut the door. Sergeant Buckingham then contacted dispatch and asked them to call the home and advise Andrews that she needed to come to the door.

{¶ 8} Officer Kallay returned to the backyard and again peered into the basement window. This time, the lights were off. Officer Kallay testified that there was no discussion about any emergency or danger to the juveniles, aside from an assumption that they were drinking excessively and then would possibly drive. Her concern was that the evidence of underage drinking, such as the beer cans and funnel, would be destroyed.

{¶ 9} Sergeant Buckingham then testified that he observed approximately nine cars when he arrived on the scene, some of them with high school writing on the windows. He noticed beer cans lying in the ditch alongside the roadway. He did not enter the home when he first approached Andrews at the door in an effort to obtain her consent. After Andrews closed the door, he testified that he did not break in the door because he believed that the juveniles were confined. He "didn't have to worry about them running, harming themselves," and his belief was that he could "gain verbal consent from the homeowner."

{¶ 10} Approximately ten minutes passed until Andrews reappeared at the front door. At this time, the scene was secure, as Officer Kallay was in the backyard. Andrews unlocked the screen door and handed Sergeant Buckingham her driver's license. At that point, Sergeant Buckingham pushed past Andrews and entered the home. Andrews ran past him and slammed the basement door shut. Upon locking the basement door, Sergeant Buckingham arrested Andrews for obstructing police business and advised her verbally of her Miranda rights. At no time prior did Sergeant Buckingham ask for permission to enter the home.

{¶ 11} On September 11, 2007, the trial court denied Andrews's motion to suppress, finding that based upon the officers' observations and initial conversation with Andrews, the officers had probable cause to believe that she was in the act of contributing to the delinquency of minors. The court determined that in the time it would have taken the officers to obtain a search warrant, the health and safety of the juveniles would have been at risk and that there was a substantial risk that evidence would have been destroyed or dissipated because it appeared that the juveniles were already in the process of cleaning the home when they arrived, although once the police forcibly entered the home, they failed to collect the evidence they feared would be destroyed. The court further determined that the breath and blood alcohol content of the juveniles who were allegedly drinking would have dissipated over time. In addition, the court found that Andrews was properly advised of her Miranda rights upon her arrest, although the court determined that issue was moot because Andrews chose to exercise her right to remain silent after being taken into custody.

{¶ 12} A change-of-plea hearing was held on October 2, 2007, at which time Andrews pleaded no contest, and the court found her guilty of one count of contributing to the delinquency of a minor in violation of R.C. 2919.24(A)(2), a misdemeanor of the first degree. Andrews was sentenced to serve seven days in the Geauga County Safety Center and was ordered to pay a $250 fine. Andrews subsequently filed and was granted a stay of sentence pending this appeal on October 19, 2007.

{¶ 13} Andrews timely appealed and raises the following assignment of error:

{¶ 14} "The trial court erred to the prejudice of the defendant-appellant by denying her motion to suppress evidence obtained by the Bainbridge police department in violation of the Fourth and Fourteenth Amendments to the United States Constitution."

{¶ 15} Standard of Review

{¶ 16} "At a hearing on a motion to suppress, the trial court functions as the trier of fact, and therefore is in the best position to weigh the evidence by resolving factual fact, and, therefore is in the best position to weigh the evidence by resolving factual questions and evaluating the credibility of any witnesses." State v. Maloney, 11th Dist. No. 2007-G-2788, 2008-Ohio-1492, 2008 WL 836414, ¶ 19, citing State v. McGary, 11th Dist. No. 2006-T-0127,2007-Ohio-4766, 2007 WL 2696806, ¶ 20, citing State v.Molek, 11th Dist. No. 2001-P-0147, 2002-Ohio-7159,2002 WL 31862665, ¶ 24, citing State v. Mills (1992),62 Ohio St.3d 357, 366, 582 N.E.2d 972; see also State v.Mustafa (Dec. 14, 2001), 11th Dist. 2000-P-0116,2001 WL 1602127. "Thus, ``[a]n appellate court must accept the findings of fact of the trial court as long as those findings are supported by competent, credible evidence.'" Id., citingMcGary at ¶ 20, citing State v. Retherford (1994), 93 Ohio App.3d 586, 592, 639 N.E.2d 498; Ravenna v.Nethken, 11th Dist. No. 2001-P-0040, 2002-Ohio-3129,2002 WL 1357782, ¶ 13. "After accepting such factual findings as true, the reviewing court must then independently determine, as a matter of law, whether or not the applicable standard has been met." Id.

{¶ 17} Warrantless Entry and ExigentCircumstances

{¶ 18} In her sole assignment of error, Andrews contends that the trial court erred in denying her motion to suppress the evidence obtained from the officers' warrantless intrusion into the sanctity of her home. Specifically, Andrews argues that in order for the police to enter her home without a warrant, the officers needed both probable cause and exigent circumstances. In this case, she contends that no emergency existed when the offices forcibly entered her home without a warrant. She further argues that even if such a situation had been present, the exigent-circumstance exception to the warrant requirement applies only to felonies, and not to a misdemeanor, as was charged in this case. We find this contention to have merit since no exigent circumstances were present that would allow the officers to forgo the protections of theFourth Amendment and invade Andrews's home without a warrant.

{¶ 19} While many words are written about theFourth Amendment to the United States Constitution, the words and plain meaning of the amendment itself have been forgotten. The Fourth Amendment safeguards: "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describingthe place to be searched, and the persons or things to beseized." (Emphasis added.)

{¶ 20} The slow erosion of its protection for expediency's sake or the attitude that a warrant is just a "technicality" should be troubling to all citizens but especially to the judicial branch, which is tasked with standing as the bulwark for our constitutional rights. The founders of our democracy courageously fought a tyrant who ordered warrantless searches of their homes and shops, and they created our cherished Bill of Rights in order to "transform the aspiration for freedom and arbitrary government intrusion into the guarantees of fundamental law." Samuel Dash, The Intruders (2004), 3.

{¶ 21} Where an offense is punishable by jail or imprisonment, police may effect a warrantless entry of a home if probable cause and exigent circumstances support the intrusion. The consideration, however, of whether the alleged crime is a felony or a misdemeanor offense in this case is of no relevance because we find that no exigent circumstances existed to justify the warrantless intrusion of Andrews's home. Rather, the circumstances presented, exigent or otherwise, do not represent any exception to the warrant requirement.

{¶ 22} "In the frequently cited case of Paytonv. New York (1980), 445 U.S. 573, 583, 100 S.Ct. 1371,63 L.Ed.2d 639, the United States Supreme Court stated that warrantless searches and seizures inside an individual's home presumptively violate the Fourth Amendment. Indeed, the ``physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed * * *.' UnitedStates v. United States Dist. Ct. (1972), 407 U.S. 297,313, 92 S.Ct. 2125, 32 L.Ed.2d 752. However warrantless searches and seizures are not in violation of the Fourth Amendment when performed pursuant to exigent circumstances or voluntary consent. Willoughby v. Cicek (Mar. 18, 1994), 11th Dist. No. 92-L-203, 1994 WL 102250 * * *." State v. Townsend (Aug. 27, 1999), 11th Dist. No. 98-L-036, 1999 WL 689934.

{¶ 23} "The exigent circumstances exception will permit police to execute a warrantless search or seizure providing that before the search or seizure ensues, there is probable cause and the presence of an exigent circumstance." Id., citing State v. Robinette (1997),80 Ohio St.3d 234, 243, 685 N.E.2d 762. "[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Id., citing Welsh v. Wisconsin (1984),466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732. "The United States Supreme Court has recognized only a few emergency conditions that qualify as ``exigent circumstances.' Id. at 8, citing Welsh at 749-750, 104 S.Ct. 2091. Some of the current exigent circumstances include: ``hot pursuit,' imminent destruction of evidence, and ongoing fire." Id., citingWelsh at 750, 104 S.Ct. 2091.

{¶ 24} There is no doubt that probable cause existed for the issuance of a search warrant in this case because clearly there was evidence of underage drinking, as the officers themselves observed. Also clear, and deplorable, was the fact that an adult, Andrews, was present in the home, apparently overseeing the illegal behavior of any minor who was drinking without being accompanied by a parent or legal guardian. Thus, we understand the concern of the officers, who were confronted with a crime. Yet the crime was contained and could and should have been handled within the purview of theFourth Amendment's prohibition against warrantless entry into one's home.

{¶ 25} The officers reported to the scene responding to a noise violation, yet by the time they arrived, the noise had ceased. In fact, when the officers approached the house, it was quiet, and there were no lights or people outside. Thus, unlike many of the cases in which a warrantless search and arrest were upheld, there were no noise or noise violations occurring. Quite simply, by the time the police arrived, the nuisance had abated, and the yard was quiet and abandoned.

{¶ 26} This case is distinguishable from those cases that hold that exigent circumstances were present where police reported to situations that called for an immediate response due to nuisance and chaotic crowds. In State v.Namay (Apr. 7, 2000), 106 Ohio Misc.2d 72, 735 N.E.2d 526, the officers were responding to a 911 call reporting that a large party was disturbing the neighborhood. When the officers arrived, they could hear "yelling, screaming, and profanity" coming from the home. Id. at 74, 735 N.E.2d 526. Moreover, there were over 75 people in the house who ran to the back of the home when they became alerted to the officers' presence. No one would answer the door, and no adults were present. Thus, the court held that there was a need for immediate action for three reasons, namely "the preservation of evidence, the abatement of an ongoing nuisance, and the prevention of flight." Id. at 78,735 N.E.2d 526. In that case, the large number of people created a chaotic scene that, when combined with the nuisance, required prompt action by the police so that the scene could be secured. Those elements are largely absent from this case.

{¶ 27} In State v. Cheadle (July 14, 2000), 2d Dist. No. 00CA03, 2000 WL 966167, the Second Appellate District was faced with a similar situation, albeit a much noisier party scene. In that case, the court upheld the warrantless intrusion of a home solely as to one person. When the officers responding to a noise complaint arrived on the scene, they heard loud voices coming from the residence. The front door was open, and the officer recognized a young girl, "Ms. Hicks," holding and drinking from an open can of beer. The officer personally knew Hicks and that she was underage. Thus, solely as to her, the court upheld the warrantless intrusion on the basis that Hicks could easily destroy the evidence. Fundamentally, the court further held that "[t]here was, however, no probable cause to support a further intrusion ora general exploratory search of the home for additional evidencenot associated with the limited probable cause police hadregarding Jessica Hicks. * * * Therefore, the evidence obtained as result thereof was properly suppressed by the trial court." (Emphasis added.) Id. 2000 WL 966167, at *3. Thus, the court determined that exigent circumstances existed only as to Hicks and that a warrant should have been secured to further search the premises.

{¶ 28} In the present case, there were nine to 12 cars parked outside, some with indicia of the local high school painted on them. The officers walked onto Andrews's property and investigated the rear of the residence. They observed a quiet, empty backyard, with beer cans strewn over it and a bonfire still burning. The officers then peeked into the basement windows where they observed about 20 juveniles drinking from beer cans and red Solo cups, with a "beer bong" sitting on a table nearby. Most importantly, they did not observe juveniles passed out or vomiting. At no point in the officers' testimony was there any evidence of intoxication that could support the claim that they had entered without a warrant because of an emergency.

{¶ 29} Officer Buckingham knocked on the door, and Andrews advised him that police were not allowed in her home. He requested identification, and she immediately closed and locked the door, presumably to retrieve her identification. He made no determination whether other parents were also in the home.

{¶ 30} At this point, the party was under control. No juveniles were running away, and the evidence of underage drinking was not going to disappear. Officer Kallay was in the rear of the house, observing the basement, and Officer Buckingham was on the front porch. Thus, the scene was secured to wait for further backup if need be.

{¶ 31} In State v. Huff (June 10, 1999), 4th Dist. No. 98 CA 23, 1999 WL 402222, in an almost apposite case, the Fourth District found the exigent-circumstances exception to the warrant requirement equally unpersuasive and cogently stated: "The reasoning behind the ``hot pursuit' exception to the warrant requirement is that a person should not be able to avoid arrest simply by fleeing from a publicplace to a private place." (Emphasis added.) Id.,1999 WL 402222, at *5, citing Cleveland v. Shields (1995),105 Ohio App.3d 118, 121-122, 663 N.E.2d 726; State v.Lomak (Mar. 11, 1999), 10th Dist. No. 98AP-708,1999 WL 138603. "This exception has no bearing on the present case, however, because the suspects were already in the house. The suspects did not flee from an outside location. A ``hot pursuit' scenario simply does not exist when the suspect is already in a private dwelling. See, e.g. State v. Howard (1991),75 Ohio App.3d 760, 774, 600 N.E.2d 809. Moreover, if the officers were concerned about the suspects escaping from inside, they could have stood guard at the exits to that house and achieved the same results without violating the sanctity of the residence." Id., 1999 WL 402222, at *5.

{¶ 32} As to the destruction of evidence, the court was equally unpersuaded, stating: "A warrantless entry into a residence may be justified in some circumstances in which evidence is in danger of being removed or destroyed in the amount of time it would take police to obtain a warrant. Katz, Ohio Arrest, Search and Seizure (1998 Ed.) 171, § T10.02; see, also, State v. Hickson (1990), 69 Ohio App.3d 278,280, 590 N.E.2d 779. However, we cannot conclude that this was the case here. The evidence which first prompted the officers to believe that a crime was being committed was the sight of underage individuals drinking from beer cans. * * * It goes without saying that an aluminum beer can is not going to be easily disposed of as would a controlled substance or something of that nature and, even if it could, that disposal would not alter the fact that the officers had seen them and could testify to their existence." Id., 1999 WL 402222 at *6.

{¶ 33} Moreover, it is important to note that the offense in this case, contributing to the delinquency of a child, does not require a certain alcohol content threshold to be reached for Andrews to be convicted. Surely the destruction of the party supplies was not so imminent that it supported a warrantless search. Indeed, Officer Buckingham testified that he did not even collect the very cans, cups, and beer bong he feared would be destroyed when he did enter the home without a warrant.

{¶ 34} Equally unpersuasive is the argument that the warrant would cause undue delay, as one officer testified, based upon one experience that it would take over four hours to secure a warrant. The Sixth District, in a similar case,State v. Davis (1999), 133 Ohio App.3d 114,726 N.E.2d 1092, artfully reasoned that "the citizens of this country and this state are entitled to the protection afforded by their constitutional rights at all times, not just when it is convenient or when the duty rosters of police departments are sufficient. Furthermore, a warrantless entry of a home by police officers cannot be justified by exigent circumstances of their own making." Id. at 119-120, 726 N.E.2d 1092, citing Statev. Jenkins (1995), 104 Ohio App.3d 265, 272,661 N.E.2d 806.

{¶ 35} Finally, the officer failed to determine whether the parents or legal guardians of the minors were also in attendance at the party, as R.C. 4301.69(E)(1) provides: "No underage person shall knowingly order, pay for, share the cost of, attempt to purchase, possess, or consume any beer or intoxicating liquor in any public or private place. * * * The prohibitions set forth * * * of this section against an underage person * * * shall not apply if the underage person is accompanied by a parent, * * * or legal guardian * * *." Indeed, if each minor's parent had been in attendance, no crime would have been committed.

{¶ 36} Surely, there was an obvious, concerted effort to hide the party. Once the juveniles were confined to the basement, they even shut off the lights when they became aware that officers were peeking through the basement windows. That does not change the fact that the officers had the scene secured, that the party was controlled as all the juveniles were confined to the basement, and that Andrews was responding to the officer's request in handing him her identification. The officer, however, ignored her identification and decided to push his way through the entry instead.

{¶ 37} The conduct of Andrews and the conduct of the police in this case are in diametric contradiction to the expectation we have of adults supervising other parents' minors and law enforcement operating within the constitutional constructs. The inexplicable conduct of a parent hosting a drinking party for minors is juxtaposed with the equally inexplicable conduct of the officer who said: "It never entered my mind to obtain a warrant because, I mean, we have juveniles actively drinking in the basement."

{¶ 38} Pundits bemoan reversals of convictions based upon a "technicality." But as Justice Clark so eloquently explained in the landmark decision in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081: "There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ``[t]he criminal is to go free because the constable has blundered.' People v.Before [(1926)], 242 N.Y. [13], 150 N.E. 585, 587. In some cases this will undoubtedly be the result. But, as was said inElkins [(1960), 364 U.S. 206, 80 S.Ct. 1437,4 L.Ed.2d 1669] ``there is another consideration — the imperative of judicial integrity.' Id. at 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States (1928),277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944: ``Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example, * * * If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.'" Id. at 659, 81 S.Ct. 1684.

{¶ 39} Thus, we cannot uphold a determination that the state proved sufficient exigent circumstances that would sanction a warrantless intrusion into the sanctity of someone's home under the circumstances of this case. For that reason, we find Andrews's assignment of error to have merit and that the motion to suppress should have been granted.

{¶ 40} The judgment of the Geauga County Common Pleas Court, Juvenile Division, is reversed, and the cause is remanded in accordance with this opinion.

Judgment reversed and cause remanded.

CANNON, J., concurs.

GRENDELL, P.J., dissents.