State v. Hancock

[Cite as State v. Hancock, 2012-Ohio-1436.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24654
Plaintiff-Appellee :
: Trial Court Case No. 2010-CR-3877
v. :
:
ZERRICK E. HANCOCK : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of March, 2012.
...........
MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARK A. DETERS, Atty. Reg. #0085094, 371 West First Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Zerrick E. Hancock appeals from his conviction and sentence following a
no-contest plea to one count of crack-cocaine possession, a third-degree felony.
{¶ 2} In his sole assignment of error, Hancock contends the trial court erred in
overruling his motion to suppress evidence.
2
{¶ 3} The facts underlying the present appeal are set forth in the trial court’s
suppression ruling as follows:
City of Dayton Police Officer Patrick Bell (“Bell”) testified that he and
other officers decided to conduct a “knock and advise” at 3 Firwood Dr. based
on [a] complaint from the owner of the building. According to Bell, the owner
had informed the police that the renter of the apartment had been evicted but
that others whom the renter had allowed to live with him remained. Bell
testified that the owner believed that there were drugs in the apartment.
Bell further testified that as he and others approached the residence to
conduct the knock and advise, Defendant Zerrick Hancock (“Defendant”)
exited the front door. According to Bell, when Defendant saw the officers, who
were approximately 15-20 feet from the front door, he turned around and went
back into 3 Firwood Dr. Bell testified that he saw Defendant reach into his
pocket and pull out a baggy with a white substance that Bell believed to be
crack cocaine. Bell further testified that he told the other officers that the
Defendant had crack cocaine and the officers followed Defendant into 3
Firwood Dr. According to Bell, he followed Defendant to the bathroom and
when Bell entered the bathroom, he saw the plastic baggy with the white
substance floating in the water.
Detective Ryan Halburnt (“Halburnt”) then testified that he was the first
officer to enter 3 Firwood Dr. following Defendant. He testified that he entered
the residence because he believed that Defendant may try to hide or destroy the
3
crack cocaine that Bell had seen.
Halburnt also testified that he read Defendant his Miranda rights off the
card provided by the police department. According to Halburnt, Defendant
acknowledged that he understood each right and voluntarily waived those
rights. Halburnt testified that no threats or promises were made Defendant in
exchange for his waiver of rights, and that Defendant was coherent while being
interviewed.
(Doc. # 14 at 1-2).
{¶ 4} Based on the crack cocaine retrieved from the bathroom and incriminating
statements Hancock made to police, he was indicted on charges of possessing crack cocaine
and evidence tampering. Hancock moved to suppress the crack cocaine and his incriminating
statements, arguing that the officers’ warrantless entry into the home was unlawful. The trial
court disagreed. It reasoned that the officers were permitted to follow Hancock into the home
based on their observation of apparent crack cocaine in his possession and their fear that he
would destroy that evidence inside the home. The trial court also found that Hancock validly
had waived his Miranda rights before making incriminating statements.
{¶ 5} Following the trial court’s ruling, Hancock pled no-contest to the possession
charge in exchange for dismissal of the tampering charge. The trial court imposed a three-year
prison sentence. This appeal followed.
{¶ 6} “Under the standard of review for a motion to suppress, an appellate court must
accept as true the trial court’s supported findings of fact and then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the applicable
4
legal standard.” State v. Leveck, 2d Dist. Montgomery No. 23970, 2011-Ohio-1135, ¶8, citing
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8.
{¶ 7} In the present case, Hancock does not challenge the trial court’s factual findings,
which are based on the officers’ suppression hearing testimony. The issue is whether those
facts reveal a Fourth Amendment violation. Hancock contends a Fourth Amendment violation
exists for two reasons: (1) he was unlawfully “seized” before police saw him pull crack
cocaine out of his pocket and (2) no “exigent circumstances” justified a warrantless entry into
the home because the officers themselves created the exigency by announcing their presence.
Both arguments lack merit.
{¶ 8} The record reflects that several police officers arrived at the home after dark in an
unmarked van. They then approached on foot wearing police vests and encountered Hancock
as he was exiting the front door. Detective Halburnt immediately asked Hancock whether the
officers could talk to him for a minute. Hancock contends he was seized at that point. Based
on the officers’ show of force, he argues that no reasonable person would have felt free to
ignore Halburnt’s request. Hancock further contends the seizure was unlawful because he had
not yet removed the crack cocaine from his pocket.
{¶ 9} Upon review, we are unpersuaded that Hancock was “seized” when detective
Halburnt asked whether the officers could talk to him. “A show of force by a law enforcement
officer is a necessary predicate to a seizure for purpose of the Fourth Amendment. * * *
However, until an officer’s attempt to affect an investigatory stop succeeds by obtaining the
suspect’s compliance, no seizure takes place and, therefore, no Fourth Amendment review of
the reasonableness of the officer’s decision to intrude on the suspect’s privacy is warranted.”
5
State v. Hart, 2d Dist. Montgomery No. 22018, 2007-Ohio-7162, ¶7 (citations omitted).
Because Hancock responded to detective Halburnt’s inquiry by fleeing back into the home,
there was no “seizure” outside the home regardless of the officers’ show of force. Id. at ¶8.
{¶ 10} We are equally unpersuaded by Hancock’s claim that the officers
impermissibly created the exigency that caused them to follow him into the home. His
argument is foreclosed by Kentucky v. King, __ U.S. __, 131 S. Ct. 1849, 179 L. Ed. 2d 865
(2011). In King, the U.S. Supreme Court recognized that, strictly speaking, police almost
always create the exigency that arises when detection of their presence results in the
possibility of evidence being destroyed:
That is to say, in the vast majority of cases in which evidence is
destroyed by persons who are engaged in illegal conduct, the reason for the
destruction is fear that the evidence will fall into the hands of law enforcement.
Destruction of evidence issues probably occur most frequently in drug cases
because drugs may be easily destroyed by flushing them down a toilet or
rinsing them down a drain. Persons in possession of valuable drugs are unlikely
to destroy them unless they fear discovery by the police. Consequently, a rule
that precludes the police from making a warrantless entry to prevent the
destruction of evidence whenever their conduct causes the exigency would
unreasonably shrink the reach of this well-established exception to the warrant
requirement.
Id. at 1857.
{¶ 11} As a result, the King majority held that when “police did not create the
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exigency by engaging or threatening to engage in conduct that violates the Fourth
Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus
allowed.” Id. at 1858.
{¶ 12} The police officers here neither violated nor threatened to violate the Fourth
Amendment when they approached Hancock’s door. “When law enforcement officers who are
not armed with a warrant [attempt to] 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 *
* * speak.” Id. at 1862. “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.
{¶ 13} On the authority of King, we reject Hancock’s argument that exigent
circumstances did not justify a warrantless entry into the home because police created the
exigency.
{¶ 14} The assignment of error is overruled, and the judgment of the Montgomery
County Common Pleas Court is affirmed.
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GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Johnna M. Shia
Mark A. Deters
Hon. Barbara P. Gorman