State v. Buck, C–160320

• Decision Date: 20 October 2017
• Docket Number: NO. C–160320,C–160320
• Citation: 100 N.E.3d 118,2017 Ohio 8242
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Andre BUCK, Defendant–Appellant.
• Court: Ohio Court of Appeals

100 N.E.3d 118

2017 Ohio 8242

STATE of Ohio, Plaintiff–Appellee,

v.Andre BUCK, Defendant–Appellant.

NO. C–160320

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: October 20, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff–Appellee.

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson and Demetra Stamatakos, Assistant Public Defenders, for Defendant–Appellant.

OPINION.

Myers, Judge.

{¶ 1} Defendant–appellant Andre Buck appeals the judgment of the Hamilton County Common Pleas Court convicting him, after a jury trial, of the kidnapping of Tyrell George.

{¶ 2} Buck was indicted for kidnapping, with firearm specifications, and for having a weapon while under a disability. Three codefendants, Anthony Barrow, Timothy Watson, and Lonnie Rucker, were also indicted for the kidnapping.

{¶ 3} Buck filed a motion to suppress, which the trial court denied. Buck and Barrow were tried together. The jury found Buck guilty of kidnapping, but acquitted him of the gun specifications and the weapon-under-disability charge. The trial court sentenced Buck to 11 years in prison.

{¶ 4} Buck now appeals. In six assignments of error, he challenges: (1) the denial of his motion to suppress; (2) the denial of his rights to due process by the prosecutor; (3) the denial of his rights to due process by the trial court; (4) the admission of certain photographs; (5) his sentence; and (6) the weight and sufficiency of the evidence. We conclude that the court committed reversible error when it failed to properly award jail-time credit, but we affirm the trial court's judgment in all other respects.

Buck's Motion to Suppress

{¶ 5} In his first assignment of error, Buck argues that the trial court erred by denying his motion to suppress. He contends that the court failed to apply the appropriate legal standard when it determined that exigent circumstances existed to justify the warrantless search of his person and his apartment, and the search of the contents of his cell phone. He asserts that the exigent-circumstances exception to the requirement for a warrant requires both probable cause and exigent circumstances.

{¶ 6} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71. We must accept the trial court's factual findings if they are supported by competent and credible evidence, but we review the court's legal conclusions de novo. Id.

{¶ 7} The Suppression Hearing. At the hearing on Buck's motion to suppress, Cincinnati Police Detective Bill Hilbert testified that Tyrell George was kidnapped on February 6, 2014, between 7:00 and 8:00 p.m. The kidnappers called George's brother Timothy Kellam and demanded $100,000 for his return. They warned Kellam that if he failed to pay the ransom money, George would be killed. In one of the ransom calls, George told Kellam that the kidnappers had shot him.

{¶ 8} By 10:00 p.m., Kellam worked with Detective Hilbert and other investigators who monitored every ransom call made by the kidnappers to Kellam. During the night of the 6th and the morning of the 7th, Kellam received numerous ransom calls from two different men who continually made threats to hurt or kill George. Throughout the night, the police covertly worked with Kellam so that it would appear to the kidnappers that Kellam was complying with their demands. After several hours, however, the police became concerned that the kidnappers suspected police involvement and that they would act on their threats to kill George.

{¶ 9} At one point, the kidnappers demanded that Kellam meet them at a Shell gas station at Colerain Avenue and Hopple Street. Two undercover officers, one of whom dressed like Kellam, drove Kellam's car to the Shell station and parked at the agreed meeting place. For the next two and a half to three hours, the kidnappers demanded in multiple phone calls to Kellam that he move his vehicle to different locations, but Kellam, at the instruction of the police, told the kidnappers he would not do so.

{¶ 10} Then Detective Hilbert instructed the undercover officers in Kellam's car to drive it around the block. As they did so, the kidnappers, who were speaking to Kellam on the phone, identified a nearby street by name and told Kellam to change lanes immediately. With that, Detective Hilbert knew that the kidnappers were conducting counter-surveillance to the police surveillance on both the Shell station and on Kellam's car. The fact that the kidnappers had the foresight to operate in that manner heightened police concern for George's safety.

{¶ 11} According to Detective Hilbert, the police still had no idea where George was. Hoping that George was somewhere near the Shell station, police were looking for suspicious things in that area. Hilbert said, "[O]ur number one goal right then [was] to find Mr. George and find him alive."

{¶ 12} The police identified two telephone numbers from which ransom calls had been made to Kellam's phone, one of which was (513) 498–2051, and made an "emergency exigent request" to Cincinnati Bell for records pertaining to that number. In addition, Cincinnati Police Officer Timothy Bley of the fugitive-apprehension unit testified that his unit had "access to a lot of computer programs and databases that the average police officer wouldn't have access to and we use those sometimes to track people [and] try to locate them." He testified that on the morning of February 7, 2014, using information from various databases, police were able to track phone calls to (513) 498–2051, and "by tracking those people backwards," were able to identify Buck as the user of the cell phone. This involved linking people and their connections to each other by the use of various databases. In analyzing this information, the police were able to connect Buck as the user of the phone.

{¶ 13} Police identified Buck's address as 2872 Montana Avenue, Apartment 4, and learned that the (513) 498–2051 phone was "pinging" from a nearby cell tower that morning. Police knew that recovery of that phone was vital to locating George, and that the delay necessitated by the process of obtaining a search warrant could have impaired police attempts to locate George and could have placed George in greater danger.

{¶ 14} Officer Bley and other officers went to Buck's apartment and knocked on the door. Buck answered the door. He was alone in the apartment. Officers entered the apartment to look for George to make sure that he "wasn't lying inside tied up or anything like that." George was not inside.

{¶ 15} Police recovered a cell phone from Buck, and dialed (513) 498–2051 to ensure that it was the phone that they were looking for. Buck's cell phone rang.

{¶ 16} Meanwhile, during the time that police officers were at Buck's apartment, Kellam was at the police station on the phone with another one of the kidnappers.

{¶ 17} Police officers took Buck and his phone to Detective Hilbert at the homicide unit. The police asked Buck for his assistance in locating George, but Buck would not cooperate. In speaking with Buck, Detective Hilbert recognized Buck's voice from the numerous ransom calls he had monitored.

{¶ 18} At that point, police still did not know where George was, but they were aware that a second kidnapper was still contacting Kellam for ransom money. Detective Hilbert believed that the danger to George had increased: "[W]e were pretty desperate at that point." So the police made another emergency request to Cincinnati Bell to download electronic data from Buck's cell phone. According to Detective Hilbert, the police were concerned that obtaining a search warrant would cost valuable time and might increase the danger to George. The detective testified that "every second counted."

{¶ 19} Warrantless Search of Buck and His Home. Buck first argues that exigent circumstances did not justify the warrantless search of Buck and his apartment. "[W]arrants are generally required to search a person's home or his person unless the ‘exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), quoting Mincey v. Arizona , 437 U.S. 385, 393–394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Where exigent circumstances exist, a warrantless search is reasonable because "there is a compelling need for official action and no time to secure a warrant." Michigan v. Tyler , 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).

{¶ 20} Exigent circumstances allow a warrantless entry into a residence if probable cause to arrest or to search exists. See State v. Robinson , 103 Ohio App.3d 490, 496, 659 N.E.2d 1292 (1st Dist.1995), citing Steagald v. United States , 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) ; State v. Upton , 1st Dist. Hamilton No. C-050076, 2006-Ohio-1107, 2006 WL 571897, ¶ 17 ; State v. Martin , 1st Dist. Hamilton No. C-040150, 2004-Ohio-6433, 2004 WL 2757604, ¶ 22 ; State v. Sheppard , 144 Ohio App.3d 135, 141, 759 N.E.2d 823 (1st Dist.2001). Police may make a warrantless entry into a residence to prevent the imminent destruction of evidence, State v. Grant , 67 Ohio St.3d 465, 470, 620 N.E.2d 50 (1993), or to engage in "hot pursuit" of a fleeing suspect, Middletown v. Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330 (2002), syllabus; State v. Mitchem , 1st Dist. Hamilton No. C-130351, 2014-Ohio-2366, 2014 WL 2565680, ¶ 24.

{¶ 21} The United States Supreme Court and the Supreme Court of Ohio have recognized a narrower subset of exigent circumstances where law enforcement officers need to respond to emergency situations to protect people from death or serious injury. Brigham City at 403, 126 S.Ct. 1943 ; State v. Dunn , 131 Ohio St.3d 325, 2012-Ohio-1008, 964...