Case Information
*1
[Cite as
State v. Goode
,
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO :
Plаintiff-Appellee : C.A. CASE NO. 25175 v. : T.C. NO. 09CR2389/3 KYREE GOODE : (Criminal appeal from
Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . .
O P I N I O N
Rendered on the 15th day of March , 2013. . . . . . . . . . .
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
Attorney for Defendant-Appellant
. . . . . . . . . .
FROELICH, J. After the trial court overruled in part his motion to suppress, Kyree
Goode pled no contest to possession of crack cocaine in an amount of 10 grams оr more but less than 25 grams, a second-degree felony. The trial court sentenced him to a mandatory term of four years in prison, suspended his driver’s license for six months, imposed a mandatory fine of $10,000, and ordered him to pay court costs. Goode appeals from his conviction, claiming that the trial court erred in denying his motion to suppress the drugs. For the following reasons, the trial court’s judgment will be affirmed.
{¶ 2}
When ruling on a motion to suppress, “the trial court assumes the role of
trier of facts and is in the best position to resolve questions of fact and evaluate the
credibility of witnesses.”
State v. Hopfer
,
{¶ 3} The evidence from the suppression hearing revealed the following facts. At approximately 3:45 a.m. on July 23, 2009, Dayton Poliсe Officer Mark Orick was on patrol in uniform and in a marked cruiser at a large apartment complex when he observed a woman, Danielle Jones, with whom he had come into contact a couple of weeks earlier (when he arrested Jones’s husband, Shawn). Due to the late hour, Orick stopped to observe her while she talked to another woman. After three or four minutes, Officer Orick exited his cruiser and approached
Jones, who was standing about seven feet from the rear door of 805 Danner. (The rear door faced a cul-du-sac, where people regularly parked.) Jones immediately recognized the officer. While Officer Orick and Jones were speaking, the rear door to 805 Danner opеned, and Orick witnessed Shawn Jones step backward out of the residence and engage in a hand-to-hand drug transaction with a man in the apartment. After the transaction concluded, the officer secured Shawn Jones in handcuffs, retrieved suspected crack cocaine from his hand, and radioed for back-up. Another officer arrived “within seconds” and took custody of the Joneses. Other officers arrived to assist Orick with making contact with the other person involved in the drug transaction, who was later identified as Lloyd Kelley. Officer Orick knocked on the rear door of 805 Danner and announced himself. Kelley answered the door. Orick positioned himself between the open screen door and the threshold and told Kelley that he had observed him engage in a drug transaction. From the doorway, Orick could see several items of contraband inside the apartment, including two digital scales, baggies that were commonly used to transport drugs, and what appeared to be crack cocaine on the kitchen table. Orick testified that, because he was witnessing “a felony in progress,” he deсided to enter the home. Once inside, he observed another digital scale with cocaine residue on a dining room table. Officer Orick saw two small children asleep on a fold-out couch, and he
asked Kelley if anyone else were in the apartment. Kelley replied that his wife, sons, and two others were upstairs. Orick and other officers then conducted a “protective sweep.” When Orick and another officer, Officer Meehan, went upstairs, two bedroom doors were open and one was closed and locked from the inside. Officer Meehan escorted the individuals from the two open rooms downstairs.
{¶ 8} After Officer Meehan returned, Officer Orick knocked on the locked door. It was opened by a woman. Orick saw a man, later identified as Goode, asleep in the room. While attempting to wake Goode, Orick saw a large baggie of what appeared to be crack cocaine in front of a television on a television stand in the room. When Goode was awake, Orick asked him if anyone else was in the room. Goode responded, “No, that’s why I keep the door locked.” The officers took Goode and the woman downstairs.
{¶ 9} At their sergeant’s direction, Officers Orick and Meehan returned upstairs with Goode and the others who had been upstairs, one at a time, so they could identify which room they had been in. When Goode went up, he told the officers that he had come out of one of the rooms that had beеn open. He was then taken back downstairs. Afterward, again at their sergeant’s direction, Officers Orick and Meehan searched upstairs for more drug paraphernalia and/or weapons. Orick secured the crack cocaine that he had observed in Goode’s room. The officers also searched Goode’s mattress, which was on the floor, and fоund approximately $1591 in cash underneath. Goode was ultimately arrested and placed in a cruiser. When he was patted
down, the officers found an additional $500 in cash. Goode was informed of his Miranda rights; he did not make any statements following his arrest. Goode was charged with possession of crack cocaine, and he moved to
suppress the evidence recovered from the residence and any statements he had made. After a hearing, the trial court suppressed the money located under the mattress, but otherwise overruled the motion. The court concluded that officers lawfully entered the residence due to the “felony in progress,” that the officers were justified in conducting a protective sweep of the residence, and that the protective sweep “revealed the baggy of crack cocaine in Defendant’s room in plain sight.” The court further found that the statements Goode made prior to being informed of his Miranda rights were “investigatory in nature and not subject to Miranda .” [1] The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution protect individuals from unreasonable searches and
seizures.
Terry v. Ohio
, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
State v.
Pressley
, 2d Dist. Montgomery No. 24852,
requirement applies in a variety of situations, including when entry into a building is
necessary to protect or preserve life, to prevent physical harm to persons or property, or to
prevent the concealment or destruction of evidence, or when officers are in “hot pursuit” of a
fleeing suspect or someone inside poses a danger to the police officer’s safety.
E.g
.,
State v.
Sharpe
,
the apartments along Danner, and he approached Jones, who was standing near the rear door to 805 Danner. After Jones’s husband came out of the rear door of that apartment and was arrested, Officer Orick knocked on the back door of 805 Danner (which appeared to be a common entry point for visitors to the residence) and announced himself. When Kelley opened the rear door, Officer Orick could see, from the threshold outside the residence, several items of contraband, including two digital scales, baggies, and what appeared to be crack cocaine. At the suppression hearing, Officer Orick initially testified that he entered
the apartment due to a “felony in progress.” On cross-examination, he stated: “Based on my eyewitness account of seeing him [Kelley] do a hand-to-hand drug transaction, knowing that I had the craсk cocaine in my pocket that I secured off the person that he’s – just gave it to – then, yes, then I made entrance into the apartment.” The trial court found that the “felony in progress” was a sufficient justification for the officer’s entry. We disagree that there is a “felony in progress” exception to the warrant requirement. In Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639
(1980), the United States Supreme Court held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s house in order to make a routine felony arrest. See also Minnesota v. Olson , 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). At the time of Orick’s entry into 805 Danner, the hand-to-hand drug transaction between Shawn Jones and Lloyd Kelley was completed and Kelley was in his apartment. The only apparent felony in progress was the possession оf drugs and drug paraphernalia inside the apartment. It is true that the existence of a felony in progress within a home may
involve circumstances that provide the exigency required to justify an officer’s warrantless
entry into the home. Where the particular felony creates an immediate need for an officer to
enter the home for the protection оf property or persons who may be inside, we have found
the officer’s entry to be lawful.
E.g
.,
State v. Goodwin
, 2d Dist. Montgomery No. 23800,
home to prevent the drugs from being lost or destroyed. “[A] warrantless entry to prevent
the destruction of evidence is justified if the government demonstrates: ‘(1) a reasonable
belief that third parties are inside the dwelling; and (2) a reasonable belief that thesе third
parties may soon become aware the police are on their trail, so that the destruction of
evidence would be in order.’”
State v. Enyart
, 10th Dist. Franklin Nos. 08AP-184 &
08AP-318,
Danner in order to talk with Kelley and investigate the drug transaction he had witnessed. See King at 1862 (“When law enforcement officers who are not armed with a warrant 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 рrivate citizen, the occupant has no obligation to open the door or to speak.”). Officer Orick was unaware that there were additional drugs inside the home until Kelley opened the door to the apartment, revealing the crack cocaine inside. The fact that the officer’s action might reasonably lead those inside to destroy the drugs doеs not render the officer’s entry to prevent the drugs’ destruction unconstitutional. Goode next argues that the officers did not properly conduct a protective
sweep of the residence. A “protective sweep” is “a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of police officеrs and others. It is
narrowly confined to a cursory visual inspection of those places in which a person might be
hiding.”
Maryland v. Buie
, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990);
State v. Hunter
, 2d Dist. Montgomery No. 24350,
and
Long
, the Supreme Court in
Buie
imposed a circumstantial predicate on the authority
conferred on law enforcement officers to conduct a protective sweep of a defendant’s
residence follоwing his arrest. There must be articulable facts from which police
reasonably suspect that the premises in which defendant is arrested harbors another person or
persons who may launch an attack on the officers who are there. Absent that basis to act, a
protective sweep is an unreasonable search for purposes of the Fourth Amendment, and any
incriminating evidence it produces must be suppressed.”
State v. Sharpe
, 174 Ohio App.3d
498,
drug transaction at the doorway to that apartment. Prior to entering, he saw additional crack cocaine, baggies, and digital scales in the apartment. As soon as he walked through the back door, he observed additional drugs and drug paraрhernalia, and he saw two small children sleeping on a couch. The officer was told by Kelley that his two sons, wife, and “another girl and a guy” were upstairs. The officer then decided to conduct a protective sweep. The officer explained at the suppression hearing:
[O]nce we were told that we already knew there were people upstairs, we would never just ignore the upstairs because we don’t know who’s upstairs. We don’t know if they’re armed, we’ve obviously seen drugs in the house. And typically, nine times out of ten, when there’s drugs, there’s weapons. So that’s for our safety to ensure that the house is completely empty so that we know the only people in the house are who we’re dealing with and police offiсers.
Given that the officer had just witnessed a drug transaction occur at the residence, that he
saw drugs in multiple rooms in the house, and that he was informed that other adults were
present upstairs, we conclude that Officer Orick acted in a reasonably prudent manner when
he and other officers conducted a protective sweep of the home to ensurе that none of the
other individuals inside would pose a danger to them.
See, e.g., State v. Smith
, 5th Dist.
Stark No. 2011 CA 140,
{¶ 26} Upon entering Goode’s room to wake him and have him come downstairs, Officer Orick observed crack cocaine sitting on the television stand in front of the television. Under the plain view doctrine, a warrantless seizure of incriminating evidence, such as the crack cocaine, is permissible where (1) the officers are lawfully positioned in a place from which the object can be plainly viewed, (2) the incriminating character of the object is immediately apparent, and (3) the officer has a lawful right of access to the object itself. Minnesota v. Dickerson , 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Horton v. California , 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Officer Orick lawfully seized the crack cocaine on the television stand under the plain view doctrine. The assignment of error is overruled. The trial court’s judgment will be affirmed.
. . . . . . . . . .
FAIN, P.J., and WELBAUM, J., concur.
Copies mailed to:
Michele D. Phipps
J. Allen Wilmes
Hon. Barbara P. Gorman
Notes
[1] On appeal, Goode does not argue that the trial court erred in denying his motion to suppress his statements.