State v. TallentState v. Tallent
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Julia R. Bates, Lucas County Prosecuting Attorney, Michael Loisel and Brenda J. Majdalani, Assistant Prosecuting Attorneys, for appellant.
Ronnie L. Wingate, for appellee.
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SINGER, J.
{¶ 1} This is a state appeal of an April 12, 2010 judgment of the Lucas County Court of Common Pleas suppressing evidence gained from a search of appellee, Thomas Tallent‘s, property. Pursuant to
{¶ 2} On September 11, 2009, appellant was indicted on one count of improрerly discharging a firearm at or into a habitation, a violation of
{¶ 3} On November 12, 2009, appellant filеd a motion to suppress challenging the adequacy of the search warrant used to search appellant‘s premises. A suppression hearing commenced on January 29, 2010.
{¶ 4} Only one witness appeared. Sergeant Bill Wauford of the Toledo, Ohio Police Department, testified that he was on duty the afternoon of July 12, 2009, when he responded to a call from a house on Kettner Street in Toledo. The resident of the house had found a bullet in a bedroom next to a baby‘s crib. There was a bullet hole in the ceiling and a bullet hole in the roof, visible from the back of the house. Judging from the location of the bullet hole in the roof, Wauford testified, he determined that the bullet was most likely fired from a house on Newport Street, the house behind the Kettner address.
{¶ 5} Wauford decided to drive over to the Newport Street house. He parked in the driveway and knocked on the front door. When he got no response, he walked up the driveway around to the back of the house and knocked on the back door. While there, he looked down and saw an empty bullet casing on the ground. He testified that the casing
{¶ 6} On April 12, 2010, the trial court granted appellant‘s motion to suppress, finding that “* * * the state failed to establish the police were lawfully on defendant‘s property when they discovered the shells and shell casings.” Aрpellant now appeals setting forth the following assignments of error:
{¶ 7} “I. The trial court improperly suppressed evidence seized during the lawful execution of a valid search warrant.
{¶ 8} “II. The trial court impropеrly suppressed the shell casing evidence since the evidence was not within the curtilage.”
{¶ 9} We will initially address appellant‘s second assignment of error. Appellant contends that the trial court erred in granting appellee‘s motion to suppress. Specifically, appellant contends that the court erred in finding that Wauford was unlawfully on appellee‘s property when he discovered the shells and shell casings, in plаin view, the discovery of which served as a basis for a search warrant.
{¶ 10} An appellate review of a ruling on a motion to suppress evidence presents mixed questions of law and fact. United States v. Martinez (C.A.11, 1992), 949 F.2d 1117, 1119; State v. Long (1998), 127 Ohio App.3d 328, 332. During a suppression
{¶ 11} Here, appellant does not challenge any factual findings made by the trial court. Appellant contends that the trial court‘s legal conclusions were wrong. Thus, we must independently review whether those legal conclusions are correct.
{¶ 12} The
{¶ 13} The curtilage is an area around a person‘s home upon which he or she may reasonably expect the sanctity and privacy of the home. For Fourth Amendment purposes, the curtilage is considered part of the home itself. Oliver v. United States (1984), 466 U.S. 170, 180. The extent of a home‘s curtilage is resolved by considering four main factors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken to protect the area from observation by passersby. U.S. v. Dunn (1987), 480 U.S. 294, 301.
{¶ 14} Unless a property owner has made express orders to the contrary regarding possible trespass, there is no rule that makes it illegal per se, or a condemned violation of an individual‘s right to privacy, for anyone to openly аnd peaceably walk up to the front door of a man‘s “castle” with the honest intent to ask questions, whether the questioner be a pollster, salesman, or police officer. United States v. Taylor (C.A.4, 1996), 90 F.3d 903; Davis v. United States (C.A.9, 1964), 327 F.2d 301. “No trespassing” signs and the like are indiсations that a property owner or occupier expects privacy within a certain area of the curtilage. United States v. Depew (C.A.9, 1993), 8 F.3d 1424, 1428, overruled on other grounds United States v. Johnson (C.A.9, 2001), 256 F.3d 895. It reasonably follows that areas so designated are places into which the рublic is expressly not invited.
{¶ 16} “In United States v. Hammett (C.A.9, 2001), 236 F.3d 1054, the court held that law enforcement officers did not violate the Fourth Amendment when, after receiving no response to their knocks at the front door, they circled around the house in a good-faith attempt to find аnother entrance and notify the occupants of their presence.” State v. Holt (2002), 119 Ohio Misc.2d 1, ¶ 8.
{¶ 17} Similarly, in Holt, the court found that officers were legitimately fulfilling their duties at the time that they entered onto a defendant‘s property as they were invеstigating a hit and run accident and they had been told by the victim that the defendant was the errant driver.
{¶ 19} In United States v. Anderson (C.A.8, 1977), 552 F.2d 1296, the court addressed whether the police‘s action of proceeding to the backyard of a home after receiving no response at the front door, violated Fourth Amendment principles. The court dеtermined that the police had entered an area in which there was a reasonable expectation of privacy, but went on to state that the initial intrusion was justified by legitimate police objectives, nаmely questioning a suspect. In so holding, the court stated:
{¶ 20} “[W]e cannot say that the agents’ action in proceeding to the rear after receiving no answer at the front door was so incompatible with the scope of their original purpose that any evidence inadvertently seen by them must be excluded as the fruit of an illegal search.” Id. at 1300. See, also, Miller v. State (2000), 342 Ark. 213, 27 S.W.3d 427, Estate of Smith v. Marasco (C.A.3, 2003), 318 F.3d 497, 520-21; United States v. Bradshaw (C.A.4, 1974), 490 F.2d 1097, 1100.
{¶ 21} In this case, Wauford testified that, on legitimate police business, he walked up the driveway to the back of the house because he believed someone may have been inside. He testified that appellant‘s driveway is next to his house and his back door is to the right of it. The asphalt of the driveway comеs all the way up to the back door.
{¶ 22} In his first assignment of error, appellant contends that the trial court erred in suppressing all of the evidence seized as a result of the search warrant. Because the trial court suppressed the evidence based on a finding that Wauford was initially on appellee‘s property illegally, appellant‘s first assignment of error is found well-taken.
{¶ 23} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is reversed and this case is remanded to that court for further proceedings. Appеllee is ordered to pay the costs of this appeal pursuant to
JUDGMENT REVERSED.
C.A. No. L-10-1112
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Arlene Singer, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.