726 N.E.2d 1092 | Ohio Ct. App. | 1999
Appellants set forth the following assignment of error:
"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS BY DENYING THEIR RESPECTIVE MOTIONS TO SUPPRESS, AS THE EVIDENCE AGAINST THEM WAS OBTAINED IN VIOLATION OF THEIR RIGHTS AS AFFORDED BY THE
FOURTH ,FIFTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART.I , SECTION14 AND10 OF THE CONSTITUTION OF THE STATE OF OHIO."
The following facts are relevant to this appeal. On June 7, 1998, each appellant was charged with one count of underage consumption of an alcoholic beverage. Each complaint alleged that the respective appellant admitted to consuming a specific amount of beer. The complaints were issued by Perrysburg police officers who responded to a complaint of loud music coming from an apartment at the Perry Lake Village Apartments in Perrysburg, Ohio. The first officer to arrive stated that, as he approached the apartment building, he heard loud music coming from an apartment and saw several people inside the apartment through a sliding glass door. This officer testified that these individuals appeared to be holding beer cans and appeared to be underage. As this police officer was walking up to the second floor apartment, two individuals started walking down toward him. The police officer stopped them and talked with them. He returned them to the apartment and asked them to ask the tenant to come out. First one and then the second tenant came out. After determining that they were underage and eliciting admissions that they had consumed alcohol, the first officer ultimately arrested the two tenants of the apartment for underage consumption. After the two tenants were arrested and secured in a police vehicle, the first police officer entered the apartment; later two other officers also entered the apartment. After questioning each individual present as to *117 name, address, social security number, date of birth and alcohol consumption, the officers charged appellants as well as others with underage consumption.
Appellants filed motions to suppress any statements each may have made to the police officers when appellants were charged with underage consumption. Appellants challenged the validity of the search of the residence and also argued that they were subjected to a custodial interrogation and had not been advised of their rights under Miranda v. Arizona (1996),
In their assignment of error, appellants argue that the trial court erred in denying their motions to suppress as the evidence against them was obtained in violation of their rights under the
Appellate review of a denial of a motion to suppress presents a mixed question of law and fact. In a motion to suppress, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Smith (1997),
Freedom from indiscriminate searches and seizures is protected by the
The four exceptions to the warrant requirement justifying a warrantless search of a home are: (1) an emergency situation, (2) search incident to an arrest, (3) "hot pursuit" and (4) easily destroyed or removed evidence. State v. Cheers (1992),
The issue of what constitutes exigent circumstances was addressed by the United States Supreme Court in Welsh v. Wisconsin
(1984),
"* * * Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. (Citation omitted.)
When the government's interest is only to arrest for a minor offense, n12 that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate."
In footnote 12, the Supreme Court stated:
"Even the dissenters in Payton, although believing that warrantless home arrests are not prohibited by the
Fourth Amendment, recognized the importance of the felony limitation on such arrests. See id., at 616-617 (WHITE, J., joined by BURGER, C.J., and Rehnquist, J., dissenting)(`The felony requirement guards against abusive or *119 arbitary enforcement and ensures that invasions of the home occur only in case of the most serious crimes')." ID.
In State v. Bowe (1988),
"(1) the offense involved is a crime of violence;
"(2) the suspect is reasonably believed to be armed;
"(3) a clear showing of probable cause to believe that the suspect committed the crime involved;
"(4) a strong reason to believe that the suspect is in the premises being entered;
"(5) the likelihood that the suspect will escape if not swiftly apprehended; and
"(6) the entry, though not consented, is made peaceably."
In Bowe, the defendants were charged with aggravated burglary.
The appellate court, citing an Illinois case in which burglary without a weapon was not a grave enough offense to permit a warrantless home search or arrest, reviewed the six factors and found that there were no exigent circumstances. Id. The Bowe court concluded that when the offense was not violent, the subject not armed and escape not likely, there were no exigent circumstances justifying the warrantless entry. Id.
In the case sub judice, the first two factors were not present: no violence was involved nor were the individuals armed. Additionally, the fifth factor, the likelihood that anyone would escape, is not present. In this case, the police could have secured the only door exit from the apartment. This court finds unpersuasive the state's argument that the police could not have secured the apartment while obtaining a search warrant. One police officer testified that it would take two police officers to secure the apartment and another police officer to obtain the warrant and that Perrysburg only had three officers3 on duty on that night. This police officer also testified that he was concerned that he would be depleting the number of officers patrolling the city of Perrysburg if two officers secured the apartment and another officer sought a warrant. However, 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 *120
by police officers cannot be justified by exigent circumstances of their own making. State v. Jenkins (1995),
The state also argues that the time required to obtain a search warrant would have allowed destruction or dissipation of evidence. In regard to the destruction of evidence, however, one officer admitted that beer cans and bottles are hard to destroy beyond the point of recognition. Both officers testified that they did not hear beer bottles being broken or beer cans being crushed while they were outside the apartment. Additionally, in regard to the state's argument concerning dissipation of evidence, the crime with which appellants were charged, R.C.
"* * * Appellant was not arrested for driving under the influence, where the passage of time would be directly related to the destruction of evidence.
"R.C.
4301.69 (E) does not require that the state prove that appellant have a certain alcohol content to be convicted. Therefore, no exigent circumstances were present and the breath test should have been suppressed. * * *.
This court need not discuss the remaining factors listed in Bowe, for, as in Bowe, we conclude that there were no exigent circumstances justifying the warrantless entry of the apartment.
This court finds the view expressed by the court in Ohiov. Huff (June 10, 1999), Highland App. No. 98 CA 23, unreported, apropos:
"We are equally unpersuaded by the State's arguments that the evidence was `easily destructable.' 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. (Citations omitted) 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 beer from cans. * * * It goes without saying that an aluminum beer can is not going to be as 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 the officers had seen them and could testify to their existence. Moreover, the State also relied on appellant's performance on the HGN and the breath test to prove that she had been drinking alcohol. It would have been nearly impossible for appellant to have disposed of the alcohol content in her body or the other available evidence prior to a warrant being *121 obtained. We therefore conclude that exigent circumstances did not exist which could have justified a warrentless intrusion.
"The State's final argument is that exigent circumstances existed because the officer's (sic) witnessed a crime (underage drinking) being committed. Again, we are not persuaded. The United States Supreme Court in Welsh,
466 U.S. at 752 , indicated that the gravity of the underlying offence is an important factor to be considered in deciding if an exigency exists. However, the Court refused to apply the exigent circumstances exception to the warrant requirement where the police entered a suspect's home to arrest him for a non-criminal traffic offense.466 U.S. at 753 . That holding has been interpreted as limiting exigent circumstances to serious crimes not including misdemeanors. (Citations omitted) We agree and have, ourselves, previously indicated that observation of underage drinking by law enforcement officers does not give rise to exigent circumstances sufficient to contravene the warrant requirement of theFourth Amendment. See State v. Nealon, 1999 Ohio App. Lexis 64 (Jan. 11, 1999), Athens App. No. 98CA22, unreported. The State's reliance on this factor as justification for entering the premises in this case is therefore misplaced."
This court does not deny that underage drinking is a serious community concern. However, protection of the constitutional rights afforded this state's citizens, including those citizens under the age of twenty-one, is of even greater concern to this court.
Under these facts, no exigent circumstances existed. Having concluded there were no exigent circumstances, consent to enter must be found or the warrantless entry fails to be reasonable. There is no competent and credible evidence that either tenant gave consent to the officers to enter the apartment. Furthermore, one tenant testified that he asked that keys be obtained to lock the apartment door. Thus, this court finds that no consent to enter was given. Having found neither exigent circumstances nor consent, this court concludes that the warrantless entry was unreasonable and in violation of the
Accordingly, appellants' assignment of error is found well-taken to the extent that the warrantless entry violated their constitutional rights.
On consideration whereof, the judgment of the Perrysburg Municipal Court is reversed. It is ordered that appellee pay court costs for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
JUDGMENT REVERSED Peter M. Handwork, P.J. James R. Sherck, J. Richard W. Knepper, J.
CONCUR.
"Except as otherwise provided in this chapter, no person under the age of twenty-one years shall order, pay for, share the cost of, or attempt to purchase any beer or intoxicating liquor, or consume any beer or intoxicating liquor, either from a sealed or unsealed
container or by the glass or by the drink, or possess any beer or intoxicating liquor, in any public or private place."
