State v. Clifford Cummings
| Decision Date | 16 January 2002 |
| Docket Number | 02-LW-0151,20609 |
| Parties | STATE OF OHIO, Appellant v. CLIFFORD CUMMINGS, JR., Appellee C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 01 03 0585
Appellant State of Ohio has appealed from an order of the Summit County Court of Common Pleas granting Appellee Clifford Cummings, Jr.'s motion to suppress evidence. This Court affirms.
Officers Rodney Sherman and Howard Vaughn, Jr. of the Akron Police Department were dispatched to 1115 Peerless Avenue on a domestic disturbance call. When they arrived, the woman who had telephoned the police told the officers she was upset because her boyfriend, Carl Brumback, would not remove his possessions from her home. According to the woman, Brumback was at the house next door, and his automobile was in the neighbor's driveway. Although there was no allegation that Brumback had committed any crime, the officers decided to try to locate Brumback and resolve the situation.
After checking the vehicle and not finding Brumback inside, the officers knocked on the door of 1125 Peerless Avenue. Cummings, the appellee herein, asked from inside the home what the officers wanted. One of the officers responded that if Cummings would come to the door, they would explain the situation. Cummings then came to the door and partially opened it. The officers asked Cummings if Brumback was in the home, or if Cummings knew his whereabouts. Cummings responded that Brumback was not there, and that he had not seen Brumback.
As the officers spoke with Cummings, they detected an odor of marijuana coming from within the home. According to Officer Sherman, Officer Vaughn then said "Fine, if [Brumback] ain't here, but what about your weed?" At that point, Cummings tried to close the door, but was unable to do so because Officer Sherman's foot was between the door and the doorframe.[1] Officer Sherman then tried to push the door back open, as Officer Vaughn went to call for backup units.
The officers finally got the door open and began wrestling with Cummings inside the home as they tried to place him under arrest. During the scuffle, the officers observed a marijuana blunt burning in an ashtray. Cummings continued to struggle as the officers took him outside and tried to subdue him. After several shots from a taser brought by one of the backup officers, Cummings was finally brought under control handcuffed, and placed in a police wagon.
Officer Sherman then went back inside the home along with Detectives Shadie and Shaeffer, who had arrived on the scene as backup, to tag the marijuana that Officer Sherman had observed burning in the ashtray during the struggle. Inside the home, Detective Shaeffer observed a picture of a young girl on the wall. Detective Shaeffer then initiated a search of the rest of the house to look for the child, and anyone else who might be in the home.
In an upstairs bedroom, Detective Shaeffer found a gun "in plain view" next to a bed, which he unloaded for his safety. In a closet of another bedroom, he discovered a pile of what appeared to be marijuana drying on the floor. Detective Shaeffer then proceeded to the basement, where he found a number of marijuana plants. No one, including the girl in the picture, was found during the search.
Detective Shaeffer then contacted Narcotics Detective Malick, who, based on the contraband discovered by Detective Shaeffer, obtained a search warrant for the premises. Before the warrant had been secured, the I.D. Bureau was also summoned to the home, and took pictures of the scene.
Cummings was indicted for two counts of assault stemming from the altercation with the police officers, in violation of R.C. 2903.13(A); one count of resisting arrest, in violation of R.C. 2921.33(A); one count of illegal cultivation of marijuana, in violation of R.C. 2925.04(A); one count of possession of marijuana, in violation of R.C. 2925.11(A); and one count of obstructing official business, in violation of R.C. 2921.31(A). Cummings entered a plea of not guilty to all counts, and filed a motion to suppress evidence. After a hearing, the trial court granted the motion to suppress the physical evidence seized from the home. The state has timely appealed from the order granting suppression, asserting one assignment of error.
The trial court committed error suppressing the evidence in this case.
In its sole assignment of error, the state has argued that the trial court erred in granting Cummings' motion to suppress. Specifically, the state has contended that the officers did not violate Cummings' Fourth Amendment rights when they entered the home and that, once inside, the officers conducted a reasonable search for a child and for anyone else in the home who might threaten their safety while on the premises.
An appellate court reviews a trial court's decision on a motion to suppress de novo. State v. Bing (1999), 134 Ohio App.3d 444, 448, citing Ornelas v United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920. However, the appellate court reviews the facts only for clear error, giving due weight to the trial court as to the inferences drawn from those facts. Id. Accordingly, this Court accepts the factual determinations of the trial court if they are supported by competent, credible evidence, and without deference to the trial court's conclusions will determine "whether, as a matter of law, the facts meet the appropriate legal standard." State v. Curry (1994), 95 Ohio App.3d 93, 96.
The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Section 14, Article I of the Ohio Constitution contains language nearly identical to that of the Fourth Amendment, and similarly prohibits unreasonable searches and seizures. See State v. Kinney (1998), 83 Ohio St.3d 85, 87, certiorari denied (1999), 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 214. Absent exigent circumstances, a warrantless search or seizure effected in a home is per se unreasonable. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585; see, also, Payton v. New York (1980), 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653.
The state has first challenged the trial court's finding that Cummings refused to allow the police to enter the home. One established exception to the Payton requirement that entry of a home requires a warrant or exigent circumstances is where the entry is pursuant to voluntary consent. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858; State v. Thompson (1987), 33 Ohio St.3d 1, 7. Whether consent was voluntarily given is a question of fact to be determined from the totality of the circumstances, and the government bears the burden of showing that consent was "freely and voluntarily" given by "clear and positive" evidence. State v. Robinette (1997), 80 Ohio St.3d 324, 243; State v. Posey (1988), 40 Ohio St.3d 420, 427, certiorari denied (1989), 492 U.S. 907, 109 S.Ct. 3217, 106 L.Ed.2d 567. The Fourth Amendment confers the constitutional right to refuse to consent to warrantless entry, and the assertion of that right cannot be a crime. Camara v. Municipal Court (1967), 387 U.S. 523, 530-540, 87 S.Ct. 1727, 1731-1737, 18 L.Ed.2d 930, 936-942.
Numerous Ohio courts have addressed the issue of what constitutes consent to police officers entering a home without a warrant. In State v. Robinson (1995), 103 Ohio App.3d 490, appeal not allowed (1995), 74 Ohio St.3d 1418, two police officers knocked on the defendant's door. Id. at 493. When the defendant opened the door, the officers noticed the smell of burning marijuana coming from inside. Id. As soon as the defendant realized they were police officers, he tried to close the door, but was prevented from doing so by a flashlight that one of the officers had inserted between the door and the doorframe. Id. The officers forced their way inside and found marijuana, which formed the basis for the charge of drug abuse subsequently brought against the defendant. Id. The court granted the defendant's motion to suppress, and the state appealed.
In upholding the order suppressing the marijuana as evidence, the First District Court of Appeals held:
Id at 495. See, also, State v. Scott (1999), 135 Ohio App.3d 253, 259, citing Robinson, supra ("The voluntary opening of a door does not constitute voluntary consent to enter over the threshold into the apartment."); Middleburg Heights v. Theiss (1985), 28 Ohio App.3d 1, 4 ( ); Elyria v. Tress (1991), 73 Ohio App.3d 5, 8-9 ( defendant's conviction because warrantless entry was unlawful, where police officers grabbed defendant's arm through the door that defendant was...
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