98 F.3d 1506 (6th Cir. 1996), 94-4207, United States v. Rohrig

Docket Nº:94-4207.
Citation:98 F.3d 1506
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Donald P. ROHRIG, Defendant-Appellee.
Case Date:October 31, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1506

98 F.3d 1506 (6th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellant,

v.

Donald P. ROHRIG, Defendant-Appellee.

No. 94-4207.

United States Court of Appeals, Sixth Circuit

October 31, 1996

        Argued Oct. 3, 1995.

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[Copyrighted Material Omitted]

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        Vicki S. Marani (argued), Department of Justice, Criminal Division, Appellate Section, Washington, DC, Sean Connelly (briefed), U.S. Department of Justice, Criminal Division, Washington, DC, Robert E. Bulford, Asst. U.S. Attorney, Office of the U.S. Attorney, Akron, OH, for Plaintiff-Appellant.

        Tom A. Borcoman (argued and briefed), Borcoman & Lindsey, Canton, OH, for Defendant-Appellee.

        Before: SILER and DAUGHTREY, Circuit Judges; ROSEN, District Judge. [*]

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        ROSEN, D.J., delivered the opinion of the court, in which SILER, J., joined. DAUGHTREY, J. (pp. 1526-27), delivered a separate dissenting opinion.

        ROSEN, District Judge.

        In this case, we are called upon to determine whether police officers violated the Fourth Amendment by entering a private home without a warrant in the early hours of the morning in response to a neighbor's complaint about loud music emanating from that home. The district court found that the officers' warrantless entry violated the Fourth Amendment, and accordingly granted the motion of Defendant-Appellee Donald P. Rohrig to suppress evidence the officers discovered upon entering his home, including marijuana and a sawed-off shotgun. We conclude, however, that the officers' conduct satisfied the Fourth Amendment standard of "reasonableness," and we therefore reverse.

       I. FACTUAL AND PROCEDURAL BACKGROUND

        In the early morning hours of May 22, 1994, Canton, Ohio, Police Officers John Clark and Walter Tucker received a complaint of loud noise emanating from the residence of Defendant-Appellee Donald P. Rohrig ("Defendant"). As the officers approached within a block of Defendant's home in their squad car, they began to hear loud music. Shortly after the officers arrived on the premises at 1:39 a.m., somewhere between four and eight pajama-clad neighbors emerged from their homes to complain about the noise.

        Using the end of his flashlight, Officer Clark banged repeatedly on the front door of Defendant's home, but received no response. While Officer Tucker returned to the squad car in an attempt to obtain the telephone number of the residence, Officer Clark walked around the outside of the two-story residence, all the while tapping to no avail on its first-floor windows. As he walked outside the house, he observed two stereo speakers in the first-floor living room and another pair of speakers in an upstairs room, with speaker wire running between the two floors on the outside of the home.

        Upon reaching the back door of Defendant's home, Officer Clark discovered that it was open, with only an unlocked screen door preventing access into the house. He called to Officer Tucker, who abandoned his effort to obtain a telephone number and joined Officer Clark at the back door. The officers knocked and hollered to announce their presence, but again received no answer. They then opened the unlocked screen door, passed through a porch and through the open back door, and emerged into a kitchen.

        All along the way, and each time the officers entered a room, Officer Clark continued to announce that he was with the Canton Police, and to ask whether anyone was home. At the suppression hearing, Officer Clark testified that the music inside the house was so loud that the officers had to raise their voices in order to communicate with each other. Defendant testified, however, that only the upstairs stereo speakers, and not the two downstairs speakers, were turned on at the time the officers entered his home.

        A light was on in the kitchen when the officers entered, but the remaining first-floor rooms were dark. The officers then observed another light emerging from an open doorway. Proceeding through this doorway toward the light, they travelled down some stairs and into Defendant's basement. The officers testified that they went downstairs not because they believed that was the source of the loud music, but because they hoped to find an occupant of the home who could turn the music down. Upon reaching the basement, the officers discovered "wall-to-wall" marijuana plants, as well as fans and running water.

        Having failed to locate anyone in the basement, the officers returned to the first floor, and then travelled upstairs to the second floor, continuing to announce their presence. At the top of the stairs, Officer Clark observed a man lying on the floor of one of the two bedrooms, and also discovered that this room contained the stereo that was the source of the loud music. As Officer Clark attempted to rouse the sleeping man, who turned out to be Defendant, Officer Tucker turned down the offending stereo.

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        At the suppression hearing, Officer Clark testified that Defendant became combative and started swearing as he was awakened, so that the officer was forced to handcuff him. Defendant, however, testified that his first recollection of the events of that night was waking up in handcuffs. Once the officers determined that nobody else was in the other upstairs bedroom, they ceased their search and contacted a supervisor. In turn, the supervisor contacted Detective Swihart of the Canton vice unit.

        Upon his arrival at Defendant's home at around 2:40 a.m., Detective Swihart was briefed by Officer Clark, was shown the grow operation in the basement, and was led upstairs where Defendant remained handcuffed. The detective brought Defendant downstairs, uncuffed him, issued Miranda warnings, and produced and explained a consent form in an effort to obtain Defendant's consent to a further search of his home.

        Swihart testified that, although he could tell that Defendant had been drinking, 1 Defendant nevertheless appeared coherent and neither slurred his speech nor stumbled when he walked. Swihart further testified that he informed Defendant that he need not sign the consent form, but that it would be easier and quicker if Defendant signed the form because the officers otherwise would seek a search warrant. After Defendant signed the form, the subsequent search turned up some processed marijuana and two firearms, including an illegal sawed-off shotgun found in the closet of the bedroom in which Defendant was initially discovered.

        At the suppression hearing, Defendant disputed some of the details of Detective Swihart's account. First, he testified that Swihart had created the impression that he would be immediately arrested if he refused to sign the consent form. Next, Defendant stated that he heard police officers "messing with" the guns from his upstairs closet even before he signed the consent form.

        Before leaving Defendant's residence that night, the police officers seized approximately 150 marijuana plants from the basement, the processed marijuana, and the two firearms. The officers, however, did not arrest Defendant that night, because Detective Swihart wished to first consult with federal authorities. Rather, Defendant was issued a citation for violating a Canton, Ohio, noise ordinance that prohibits operation of "any noise-making device" in such a manner that "the peace or good order of the neighborhood is disturbed." Canton, Ohio, General Code § 509.12. A violation of this ordinance is classified as a "minor misdemeanor," and is punishable only by a maximum fine of $100 and no incarceration. Defendant subsequently admitted that he violated this ordinance, and paid a fine of $25.

        Defendant was eventually charged with two federal offenses: (1) possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and (2) possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861. Defendant subsequently filed a motion to suppress the marijuana and shotgun found in his home, contending that the Canton police officers' warrantless entry into his home violated the Fourth Amendment.

        After conducting an evidentiary hearing on October 14, 1994, Judge George W. White of the United States District Court for the Northern District of Ohio agreed with Defendant's contention, and accordingly granted Defendant's motion to suppress. Specifically, in a ruling from the bench, Judge White found that, regardless of whether anyone appeared to be at home or whether the door was unlocked, the officers could not lawfully enter Defendant's home in order to turn down the loud music without first securing a warrant. Consequently, because this illegal entry tainted all of the subsequently discovered evidence, Judge White concluded that the marijuana and shotgun must be suppressed. 2 The Government appeals this ruling.

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       II. ANALYSIS

        A. The Standards Governing This Appeal

        In reviewing the district court's decision to grant Defendant's motion to suppress, we will not disturb that court's factual findings unless they are clearly erroneous. United States v. Johnson, 9 F.3d 506, 508 (6th Cir.1993), cert. denied, 512 U.S. 1212, 114 S.Ct. 2690, 129 L.Ed.2d 821 (1994). In this case, neither party challenges the district court's factual determinations.

        However, we review de novo any conclusions of law the district court reached in granting Defendant's motion. Johnson, 9 F.3d at 508. In particular, the de novo standard governs our review of district court's determination that no exigency justified the Canton police officers' warrantless entry into Defendant's home. In reviewing this conclusion, "we consider the totality of the circumstances and the...

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