State v. King

I respectfully disagree with the majority and would reverse the trial court on its granting of the defendant-appellee's motion to suppress.

I agree that the basis of this motion was the execution of a duly obtained search warrant with an alleged violation of the "knock and announce" requirement as set forth in R.C. 2935.12 (A), which provides for forcible entry in executing a search warrant:

When making an arrest or executing an arrest warrant or summons in lieu of an arrest warrant, or when executing a search warrant, the peace officer, law enforcement officer, or other authorized individual making the arrest or executing the warrant or summons may break down an outer or inner door or window of a dwelling house or other building, if, after notice of his intention to make the arrest or execute the warrant or summons, he is refused admittance, but the law enforcement officer or other authorized individual executing a search warrant shall not enter a house or building not described in the warrant.

The recitation of the evidence by the majority, such as it is, is not disputed, but the evaluation of the defense evidence and its application is disputed. The majority fails to mention that the state presented witnesses who testified to the fact that the "knock and announce" requirement was strictly adhered to in the execution of the search warrant of the defendant-appellee's premises.

Detective Darryl Johnson testified that he obtained the search warrant and in company with three other officers was assigned to the rear steel door of the residence which was the point of entry. (R. 21.) There was no evidence to indicate to Detective Johnson or his companions that any civilians were in that area of entry or adjacent thereto. (R. 15, 26, 32-33.) The detective clearly stated that the police repeatedly pounded on the rear door and concomitantly announced that they were the police. There was no response from within. (R. 14, 22.) The police ultimately used a pry bar to gain entrance and continued announcing that they were the "police." (R. 14, 17-18, 23.) This was the onlycompetent, credible evidence presented on the issue before the trial court. Although not called as witnesses, the three other officers corroborated the testimony of Detective Johnson by their silence and clearly were available had there been any effort to impeach or contradict the undisputed testimony of the state.

The defense presented a series of witnesses, including the defendant. In construing their testimony in the most favorable light for the defendant-appellee and accepting it as true, one must nonetheless deduce that none of the witnesses heard or saw the actions of the police. The trial court apparently concluded, therefore, that there was no knock and no announcement. In order to reach the conclusion reached by the trial court, one would have to extrapolate that because the combined witnesses did not hear the knocking or see the actions of the police that they — the police neither knocked nor announced. This "logical" deduction flies in the face of common sense and reason. The trial court's evaluation of the evidence was analogous to the oft debated query:

If a tree falls in the forest and no one is there, does it nonetheless make a sound?

The defendant-appellee argued, in essence, that his evidence did not fully conform to the evidence presented by the state and, therefore, the police violated R.C. 2935.12. This reasoning is convoluted and unsupported by any evidence that in any way, shape, or form contradicts or calls into question the testimony of Detective Johnson.

The law is clear that the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. It is axiomatic, however, that findings must be based upon competent, credible evidence; It must thereafter be determined independently where, as matter of law, the facts meet the appropriate legal standard.State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906,908. In the case sub judice there are no findings of facts.

Crim.R. 12 (E) at paragraph three mandates that the trial court issue findings.

Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

(Emphasis added.) Crim.R.12 (E). Absent the required findings a reviewing court is unable to independently determine whether or not the facts meet the appropriate legal standard. State v. Brown (1992), 64 Ohio St.3d 476. The language of the rule indicates that the findings of fact are mandatory when the resolution of factual issues is necessary to determine the motion. State v.Edwards (1993), 86 Ohio App.3d 550, 554; State v. Gibson (July 7, 1999), Ninth App. District #97CA006967, unreported.

The majority excuses the trial court's failure to comply with the dictates of Crim.R. 12 (E) by stating in a conclusory fashion that the record provides a sufficient basis to review the trial court's factual determinations. To the contrary, there is no way that this court can determine the basis of the trial court's ruling from the record.

The only competent, credible evidence presented on the issue before the trial court is the testimony presented by the state. The only evidence concerning the police activity at the point of entry is the state's. The defense evidence relative to "knock and announce" was non-existent at the suppression hearing and, therefore, not germane to the issue before the court. At best, one would have to base an inference upon an inference and then speculate that not hearing or seeing something means that it did not occur. At the outset, it is impermissible to base an inference upon an inference, but that defect aside, there is no evidence to dispute the state's position that the police properly "knocked and announced" prior to the execution of the search warrant. Accepting the unrebuked, uncontradicted, unimpeached, unrefuted testimony of the police, I would reverse the trial court's granting of the defendant-appellee's motion to suppress and remand the defendant to stand trial.⁵

⁵ I fail to see the relevance of the majority's analysis of whether the police execution of the search warrant in this case constituted a permissible "no knock" entry of defendant-appellee's home. The state never attempted to qualify the search under this exception at the suppression hearing and Detective Johnson did not testify that he had a reasonable suspicion that, under the particular circumstances, knocking would be dangerous or futile, or that it would inhibit the effectiveness of the crime. In my opinion, the fact that the state did not argue that the entry in this case was permissible under the rule announced by the United State's Supreme Court in Richards v. Wisconsin (1997), 520 U.S. 385 bolsters the credibility of the witnesses who testified that the police did, in fact, knock and announce their presence prior to entering the defendant-appellee's premises.