State v. Holt

• Decision Date: 04 March 2002
• Docket Number: No. 01 TRC 17448.,01 TRC 17448.
• Citation: 2002 Ohio 3345,119 Ohio Misc.2d 1,772 N.E.2d 203
• Court: Ohio Court of Common Pleas
• Parties: The STATE of Ohio v. HOLT.<SMALL><SUP>*</SUP></SMALL>

772 N.E.2d 203

119 Ohio Misc.2d 1

2002 Ohio 3345

The STATE of Ohio v. HOLT.^*

No. 01 TRC 17448.

Clermont County Municipal Court, Ohio.

Decided March 4, 2002.

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Mark Tekulve, Clermont County Assistant Prosecuting Attorney, for plaintiff.

Gary Rosenhoffer, Batavia, for defendant.

VICTOR M. HADDAD, Judge.

{¶ 1} This matter came before the court for hearing on December 27, 2001, pursuant to defendant Danny R. Holt's motion to dismiss and/or suppress filed December 5, 2001. The defendant was present and represented by counsel, Gary Rosenhoffer. Assistant Prosecutor Mark Tekulve was present on behalf of the state of Ohio. Upon hearing testimony and oral argument on the motion, the court took the matter under advisement. The court herein renders the following decision.

FINDINGS OF FACT

{¶ 2} The evidence indicates that Officer Chad Lutson, a police officer for Union Township, responded to the scene of an accident at 473 Roney Lane (Frisch's Restaurant parking lot) on September 16, 2001, at approximately 9:18 p.m. Upon arriving at Frisch's, Officer Lutson found Charlee Duderstadt, whose car had been hit by a driver who left the scene. Duderstadt, who worked at Frisch's, completed her shift around 8:00 p.m. that evening and stayed at Frisch's approximately one hour longer to talk to a friend. She then proceeded to leave, at which time her car was struck by the defendant's vehicle as he was leaving the restaurant's drive-through. The defendant immediately got out of his vehicle, which Duderstadt described as a purple or maroon-colored Jeep Cherokee, and approached her car. Duderstadt asked the defendant to call the police, but the defendant refused, stating that he did not want to get the police involved, and that he would take care of the damages. Duderstadt noticed the heavy odor of alcohol on the defendant, as well as the defendant's bloodshot eyes, and asked the defendant if he had been drinking. He replied that he had been drinking at the American Legion. The defendant eventually gave Duderstadt his name, address, telephone number, and insurance information. The defendant then asked whether Duderstadt was okay and left. Duderstadt called the police after the defendant left.

{¶ 3} While Officer Lutson was interviewing Duderstadt in the Frisch's parking lot, Officer Dave Combs of the Union Township Police Department stopped to see whether he could be of assistance. Once apprised of the situation, Officer Combs asked Officer Lutson if he could accompany him to the defendant's residence to investigate. Officer Lutson and Officer Combs left Frisch's in separate cars and proceeded to the defendant's home on Barbara Lane, located in Union Township, Clermont County.

{¶ 4} Upon arriving at the defendant's residence at approximately 10:30 p.m., the officers found a damaged vehicle in the driveway that matched the description that Duderstadt had given Officer Lutson. The officers knocked on the defendant's front door, but received no response. The officers looked in the defendant's picture window, but did not see anyone. Officer Lutson then went around the house while Officer Combs stayed at the front door. Officer Lutson noticed an uncovered window, and while looking inside, he observed the defendant lying on a bed. Officer Lutson made his presence known, identifying himself as a police officer, and asked the defendant to meet him at the front door. The defendant, wearing only his underwear, met the officers at the front door. The officers informed the defendant that they were investigating an accident that occurred on private property, and asked whether they could enter his residence to ask some questions. The defendant allowed the officers to enter his home and cooperated with the officers. According to Officer Lutson, the defendant's speech was slightly slurred, his eyes were glassy and bloodshot, and his gait was slow. Officer Combs noticed the odor of alcohol on the defendant and that his speech was slightly slurred. The defendant admitted that he had been driving his vehicle at the time of the accident, that he had consumed two beers at the American Legion, and that he had not consumed any more alcohol since the accident.

{¶ 5} While still in the defendant's living room, Officer Combs administered a series of field sobriety tests on the defendant, which included the horizontal gaze nystagmus ("HGN") test, the one-leg-stand test, and the walk-and-turn test. Officer Combs has experience that includes investigating more than one hundred DUIs.

{¶ 6} The defendant generally wears glasses, but was not wearing them at the time the field sobriety tests were conducted. Officer Combs verified that there were no problems with the defendant's pupils prior to conducting the HGN test and ascertained that the defendant was not on any medications. Officer Combs did not remember conducting a vertical gaze nystagmus test ("VGN") in conjunction with the HGN. On the HGN, Officer Combs found a total of five out of six clues to be present. On the one-leg-stand test, Officer Combs observed a total of three to four clues out of a possible four clues. On the walk-and-turn test, the defendant exhibited five clues out of a possible eight clues. As a result of the field sobriety tests, the officers concluded that the defendant was under the influence, and Officer Lutson handcuffed him. The defendant now seeks to have his case dismissed, or alternatively seeks to have evidence of the field sobriety tests and inculpatory statements suppressed.

CONCLUSIONS OF LAW

{¶ 7} The defendant first challenges the warrantless entry onto his property and the subsequent entry into his home. Above all else, the Fourth Amendment to the United States Constitution was intended to protect citizens from unreasonable searches and seizures within the privacy of their own homes. The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States Dist. Court for E. Dist. of Michigan, S. Div. (1972), 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752. Warrantless entries of residences are presumptively unreasonable, subject to only a few established, well-delineated exceptions. Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639. The curtilage of a residence is also afforded protection under the Fourth Amendment. State v. Karle (2001), 144 Ohio App.3d 125, 759 N.E.2d 815. When a trespass by officers does not fall within the curtilage, there is no violation of a constitutional magnitude. State v. Payne (1995), 104 Ohio App.3d 364, 662 N.E.2d 60. The curtilage is defined as the area "so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection." Id., quoting United States v. Dunn (1987), 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326. A court should consider the following in determining whether a particular area falls within the curtilage: "[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 uses to which the area is put; and [4] the steps taken by the home's resident[s] to protect the area from observation by people passing by." Id. Using these criteria, the court in State v. Carter (Wadsworth M.C.1993), 63 Ohio Misc.2d 84, 619 N.E.2d 1228, found that the defendant's car, which was parked in his driveway, was not located within the curtilage. The court noted that the driveway was not within any sort of enclosure, and no measures had been taken to protect the driveway from the observation of people passing by.

{¶ 8} Police officers are privileged to enter onto the property of others in the proper exercise of their duties. State v. Israel (Sept. 26, 1997), Hamilton App. No. C-961006, 1997 WL 598396; State v. Chapman (1994), 97 Ohio App.3d 687, 647 N.E.2d 504; State v. Huff (June 10, 1999), Highland App. No. 98CA23, 1999 WL 402222. 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 and 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. 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 another entrance and notify the occupants of their presence.

{¶ 9} In the case sub judice, the defendant claims that the officers illegally entered upon his premises. The court, however, notes that the officers were legitimately fulfilling their duties at the time that they entered onto the defendant's property, i.e., they were investigating the facts of an accident which had occurred approximately ninety minutes prior to their arrival at the defendant's home. The police were making a good-faith attempt to verify Duderstadt's account of the evening's events. When the officers did not receive any response to their knock at the front door, Officer Lutson was entitled to go around the defendant's home to see if, in fact, the defendant was home and amenable to questioning. Once Officer Lutson saw the defendant's uncovered window, he used this means to notify the defendant of his presence, not for the purposes of a search. The only evidence obtained as a result of the officer's initial entry onto the property, prior to entering the defendant's home, was evidence as to the description and condition of the vehicle parked in the defendant's driveway. For the reasons as...