STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIE J. FOSTER, DEFENDANT-APPELLANT.
CASE NO 1-14-54
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
August 24, 2015
[Cite as State v. Foster, 2015-Ohio-3401.]
WILLAMOWSKI, J.
Appeal from Allen County Common Pleas Court, Trial Court No. CR2013 0369; Judgment Reversed and Cause Remanded
APPEARANCES:
Dustin M. Blake for Appellant
Jana E. Emerick for Appellee
{1} Defendant-appellant Willie Foster (“Foster“) brings this appeal from the judgment of the Court of Common Pleas of Allen County denying his motion to suppress. For the reasons set forth below, the judgment is reversed.
{2} On September 18, 2013, Officer Matt Woodworth (“Woodworth“) and Officer Amy Glanneman (“Glanneman“) of the Lima Police Department were dispatched to 1224 ½ East Market Street. Tr. 11, 39. The police had been contacted by the alarm company due to an alarm sounding at the house. Tr. 12, 39. No emergency call was received from anyone at the residence or the neighbors. Tr. 18. The officers checked the exterior of the house upon their arrival. Tr. 12, 39. Glanneman noticed that the front door of the house was “cracked open” and Woodworth found the garage door to be closed, but unsecured. Tr. 17, 40. The officers then decided to clear the home to check for intruders. When they entered the garage, they smelled marijuana and realized that they should obtain a search warrant. Tr. 14-16, 40. However, they first proceeded to check the home for intruders. Tr. 16, 40.
{3} The officers entered the house through the open front door. When they stepped inside the house, they detected a stronger odor of raw marijuana and saw an ashtray containing burnt marijuana blunts and numerous plastic sandwich baggies, some with missing corners.1 Tr. 41-42.
Located near the money, was a dark colored cloth bag, and a plastic grocery bag. Officers removed the bags to check them, and located a large amount of cocaine in one bag, and a large amount of money inside the other bag. At this point officers had searched the entire residence, and located no intruders, so officers left the items inside the residence, secured the residence, and called the West Central Ohio Crime Task Force.
Affidavit for Search Warrant.
{4} On October 18, 2013, the Allen County Grand Jury indicted Foster on one count of possession of cocaine in an amount exceeding 100 grams, a major drug felony of the first degree in violation of
The trial court erred in overruling [Foster‘s] motion to suppress certain evidence and its fruits, said evidence having been obtained by an unreasonable search and seizure under the Fourth Amendment to the Constitution of the United States.
{5} The sole assignment of error in this case raises the issue of whether the trial court erred in denying Foster‘s motion to suppress the cocaine found in the bag. “An appellate review of the trial court‘s decision on a motion to suppress involves a mixed question of law and fact.” State v. Fittro, 3d Dist. Marion No. 9-14-19, 2015-Ohio-1884, ¶ 11. Here, the facts are not disputed. The officers admit that they were searching the house without a warrant, that they opened the bag without a warrant, and that they should have obtained the warrant before opening the bag.2 Thus, the issue before this court is solely one of law – should the evidence be admissible?
{6} The first step is to determine whether the officers had the authority to be in the home at all. There is no question that they entered the home without a warrant.
The well settled law under the Fourth and Fourteenth Amendments as interpreted by the United States Supreme Court is that a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chambers v. Maroney (1970), 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419. The Court has further determined that “[b]efore 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.” Welsh v. Wisconsin (1984), 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732. “Exigent circumstances” denotes the existence of “‘real immediate and serious consequences’ ” that would occur were a police officer to ” ‘postpone[ ] action to get a warrant.’ ” Id. at 751, quoting McDonald v. United States (1948), 335 U.S. 451, 459-60, 69 S.Ct. 191, 93 L.Ed. 153 (Jackson, J., concurring). This includes situations where there is a “need to protect or preserve life or avoid serious injury.” Mincey v. Arizona (1978), 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290.
State v. Myers, 3d Dist. Marion Nos. 9-02-65, 9-02-66, 2003-Ohio-2936, ¶ 8.
“‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.‘” Mincey v. Arizona (1978), 437 U.S. 385, 392-393, 98 S.Ct. 2408, 57 L.Ed.2d 290, (quoting Wayne v. United States (C.A.D.C.1963), 318 F.2d 205, 212). However, a “warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation.‘” State v. Applegate, 68 Ohio St.3d 348, 350, 1994-Ohio-356, 626 N.E.2d 942 (quoting Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
{7} Here, the officers were sent to the home by the alarm company after an alarm was sounded indicating an intruder in the home. The police noticed that the front door was “cracked open.” Tr. 13. Glanneman testified that she pushed
{8} This then leads to the question of whether the officers could lawfully open the bag. The answer to that question is no. Both Glanneman and Woodworth testified that the bag was too small to contain a hidden person and that the bag had to be manipulated to see the contents. This is a warrantless search that was not justified by the exigent circumstances. Even the State agrees that this was improper and the trial court held such.
In looking in the bag, Woodward [sic] exceeded the scope of the allowable search for persons. It was not necessary for Woodward [sic] to look in the bag in order to alleviate the emergency and the dangers associated with the suspected home invasion and search for persons.
Dec. 23, 2013, Judgment Entry, 9. We agree that the search of the bag was an improper warrantless search.
{10} In this case, the officers were searching for people and had seen multiple items that might have provided probable cause for a search warrant. The officers testified that they knew they needed a warrant to search for drugs and that
{11} Another problem with allowing the evidence to be used in this case is that the admission was based upon the theory that the evidence would have inevitably been discovered when the search was conducted pursuant to the warrant. However, the affidavit in support of the warrant included the information that the officers had removed the bag from the shelf, looked inside of it, and saw cocaine. In other words, one of the reasons given as a basis for the warrant was the evidence seen without a warrant in violation of the Fourth Amendment. Evidence seized during the execution of a valid search warrant is not admissible if the warrant was issued by what officers observed while performing an illegal search. State v. Carter, 69 Ohio St.3d 57, 67-68, 1994-Ohio-343, 630 N.E.2d 355.
The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality, or “fruit of the poisonous tree.” Nardone v. United States (1939), 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. The
reason for the rule is the concern that if derivative evidence were not suppressed, police would have an incentive to violate constitutional rights in order to secure admissible derivative evidence even though the primary evidence secured as a result of the constitutional violation would be inadmissible. See Katz, Ohio Arrest, Search and Seizure (3 Ed.1992), Section 2.07. Justice Frankfurter explained in Nardone, “To forbid the direct use of methods thus characterized but to put no curb on their full indirect use would only invite the very methods deemed ‘inconsistent with ethical standards and destructive of personal liberty.‘” Nardone, supra at 340, 60 S.Ct. at 267, 84 L.Ed. at 311.
{12} Likewise, The United States Supreme Court in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed. 2d 472 (1988), held that evidence observed illegally need not be excluded if the evidence is later discovered during the execution of a valid search warrant if that warrant was issued solely on information wholly unconnected to the prior entry. Id. (emphasis added). The Court held that in order for the evidence to be admissible, the State must show that 1) no information presented in the affidavit for the warrant was seen during the illegal search and 2) the decision to seek the warrant was not prompted by the results of the illegal search. Id.
{13} The argument presented by the States is that that since the officers were going to get a warrant, the evidence would have been discovered anyway, so it should be admitted even though it was found through an improper search. The problem with that argument is that to follow it to its logical conclusion would result in an officer never being required to first obtain a warrant as long as he or
The assertion by police (after an illegal entry and after finding evidence of crime) that the discovery was ‘inevitable’ because they planned to get a search warrant and had sent an officer on such a mission would as a practical matter be beyond judicial review. Any other view would tend in actual practice to emasculate the search warrant requirement of the Fourth Amendment.
{14} This court has previously held that the likelihood that a search warrant would be issued if requested does not provide for inevitable discovery of evidence. State v. Pearson, 114 Ohio App.3d 153, 682 N.E.2d 1077 (3d Dist. 1996). In Pearson, the trial court denied a motion to suppress the admission of a blood sample taken without a warrant. The State argued that the sample was admissible because they could have obtained a sample with a warrant. This court held as follows.
“While there was undoubtedly sufficient probable cause to obtain a search warrant * * * in this case, we find that the mere fact that a search warrant would in all probability have been issued on request cannot be considered as the implementation of investigative procedures that would have ultimately led to the
‘inevitable’ discovery of the evidence. It seems to us that any other interpretation would pose a significant threat to the Fourth Amendment warrant requirement with its corollary magisterial determination of probable cause.” ***
We believe the same logic follows in the instant case. In other words, the state‘s argument would obviate any Fourth Amendment warrant requirement as long as it could be shown later that a warrant would in all probability have been obtained. The fact that the second blood sample could have or would have been admitted at trial does not change the fact that defendant‘s conviction was based on illegally obtained evidence. Moreover, the fact that a warrant was eventually issued cannot be considered as the implementation of investigative procedures which would have ultimately led to the discovery of the blood evidence. We therefore conclude that the September 12, 1994 blood sample is not admissible evidence that would have been “inevitably” discovered pursuant to a lawful search warrant.
Id. at 163. Likewise, the Tenth District determined that the inevitable discovery doctrine exception does not apply when the argument of the government is that they had probable cause for the search and could have obtained the warrant. State v. Alihassan, 10th Dist. Franklin No. 11AP-578, 2012-Ohio-825. See also U.S. v. Souza, 223 F.3d 1197, 1203 (C.A. 10, 2000) (“To apply the inevitable discovery doctrine whenever police could have obtained a warrant, yet chose not to, would essentially eliminate the warrant requirement and encourage police to proceed without a neutral and detached magistrate‘s probable cause determination“); State v. Coyle, 4th Dist. Ross No. 99 CA 2480, 2000 WL 283073 (Mar. 15, 2000); U.S. v. Echegoyen, 799 F.2d 1271 (C.A. 9, 1986), 1280 (“to excuse the failure to obtain
{15} Here, the officers were permitted to be in the home for the sole purpose of searching for people. They knew the bag was not hiding a person and that they had no search warrant for any purpose. They admitted that they were aware before opening the bag that they needed a search warrant.3 Yet they purposely proceeded to search the bag. Although the officers may have had probable cause to obtain a search warrant, they did not have a warrant at the time of the search. Additionally, this case is further complicated by the fact that the subsequent warrant that was obtained was at least in part based upon the illegally discovered evidence. Because the “fruits” of the illegal search were included as a basis for the warrant, the warrant itself was tainted and we have no way of knowing whether a warrant would have been issued in this case absent the statement that they had found cocaine. Both the U.S. Supreme Court and the
{16} Having found error prejudicial to the defendant, the judgment of the Court of Common Pleas of Allen County is reversed and the matter is remanded for further proceedings in accord with this opinion.
Judgment Reversed and Cause Remanded
SHAW, J., concurs in judgment only.
ROGERS, P.J., Concurring Separately.
{17} I agree with the conclusion reached by the majority in this case. I write separately only to state that I would also suppress based on the unauthorized entry into the residence.
{19} Further, the majority admits that evidence of exigent circumstances was not overwhelming. However, they persist by finding “some credible evidence to support that conclusion.” (Majority Opin., ¶ 7). Any credibility of the law enforcement officers is defeated by the claim of a smell of raw marijuana in the closed garage5, which smell they claim was stronger in the house. Mysteriously, no raw marijuana was found, even with execution of the search warrant. Nor was this discrepancy even noticed or discussed by the trial court.
/hlo