State v. Hommes

• Decision Date: 27 December 2021
• Docket Number: 2020-A-0001
• Citation: 2021 Ohio 4568
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO Plaintiff-Appellant, v. NICOLE L. HOMMES, Defendant-Appellee.

2021-Ohio-4568

STATE OF OHIO Plaintiff-Appellant, v. NICOLE L. HOMMES, Defendant-Appellee.

No. 2020-A-0001

Court of Appeals of Ohio, Eleventh District, Ashtabula

December 27, 2021

Criminal Appeal from the Court of Common Pleas Trial Court No. 2019 CR 00371

Colleen M. O'Toole, Ashtabula County Prosecutor, and Shelly M. Pratt, Assistant Prosecutor (For Plaintiff-Appellant).

Casey P. O'Brien, Ibold & O'Brien, (For Defendant-Appellee).

OPINION

THOMAS R. WRIGHT, J.

{¶1} The state of Ohio appeals the trial court's judgment granting Nicole L. Hommes' motion to suppress evidence seized from her residence without a warrant. The judgment is reversed.

{¶2} In February 2019, the Ashtabula Fire Department responded to a fire at Hommes' residence. Multiple children safely exited the home. Captain Stephen Chase, a certified fire investigator, searched the house to determine the origin and cause of the fire. Hommes was not present when the fire ignited and did not return until after the fire had been suppressed and the captain was conducting his investigation.

{¶3} Based on items discovered in and seized from the home, Hommes was indicted on charges of aggravated trafficking in drugs aggravated possession of drugs, possessing criminal tools, illegal use or possession of drug paraphernalia, and endangering children. She filed a motion to suppress all evidence seized from her residence by the fire and police departments, alleging they had violated her constitutional rights. The following testimony was elicited at the hearing.

{¶4} Captain Chase testified that he was called to the fire around 6:30 a.m. He arrived within "twenty minutes, maybe," but could not enter the residence for another 30 to 45 minutes due to active suppression of the fire. When asked whether suppression efforts were still ongoing when he finally did enter, Captain Chase testified as follows:

Yes. Normally when we, when the fire crews put out a fire, as long as the investigator's available, they will extinguish the fire the majority of the way. And then they want to accomplish what's called overhaul, where they rip things apart and they make sure the fire's out. Make sure there's nothing smoldering that's gonna reignite. Typically, and in this case, they hold off on that process until I've had a chance to investigate, because that process involves throwing a bunch of stuff out the window, moving a bunch of stuff. It disturbs evidence and makes my job more difficult. So typically they wait. In this case they did wait.

Captain Chase further explained that "overhaul" is a "subset of suppression":

So when we have a fire, we go there, we extinguish the fire by whatever means necessary. We put out the main body of the fire. That typically requires large volumes of water. * * * We try to put that fire out as fast as possible to save lives, protect property, so on and so forth. * * * There's still void spaces in houses, there's still debris there that could have embers underneath that are still burning, that are still capable of reigniting as they sit there and smolder. Putting that out, and the disassembly of whatever we have to to complete that extinguishment is what we call overhaul. It is the responsibility of the suppression crew.

{¶5} When extinguishing the fire, the suppression crew had breached a locked interior door to a room described as an office. In that room, Captain Chase observed two computers connected to webcams pointed at the back door of the home, ammunition, airsoft pistols, and an open safe on the floor that appeared to contain illegal drugs and paraphernalia. It was reported that a handgun had also been seized from that room by the fire suppression crew and turned over to a police officer. Captain Chase seized the two computers, which were then locked in evidence at the fire department. Captain Chase testified that he has "had a number of trainings dealing with evidence collection," but that it is "outside the scope of my training as a fire investigator to collect [drugs] as evidence"; "nor am I trained to collect weapons." He contacted the Ashtabula Police Department and requested an officer to respond. At this time, the captain testified, he had not yet searched the entire house nor determined the cause and origin of the fire. Captain Chase testified that Officer Thomas Perry, a patrolman at the time, "was there quickly," within "five minutes, ten minutes."

{¶6} Patrolman Perry testified that he arrived around 9:25 a.m. in response to the call from Captain Chase and that he did not know why he was called to the scene until he arrived. When asked if there were any fire trucks on scene when he arrived, Patrolmen Perry testified, "I don't recall if there were or not." Captain Chase showed him the ammunition and the safe; advised that he did not know, but it was his suspicion, that the safe contained illegal drugs; and indicated he did not know at that point in time whether it was pertinent to his investigation as to the cause of the fire. Neither Captain Chase nor Patrolman Perry took pictures of the safe or its contents.

{¶7} Patrolman Perry secured the items and placed them in evidence. He suspected the substance was methamphetamine, which was later confirmed by a presumptive test at the police station. The officer also collected two boxes of 9mm ammunition from the office. A warrant was not obtained for the seizure of evidence. Patrolman Perry testified, as pertains to the items he collected, as follows:

Q. And what did you do then, as it pertained to these items [Captain Chase] found?

A. I went into the area that he was checking and securing, and in plain view in the safe sitting in the safe - the door of the safe was open - I located the items he was speaking of. [Emphasis added.]

Q. And what were those items?

A. Three bags of crystalline substance that I suspected to be methamphetamine, and two digital scales.

Q. And what did you do with those items?

A. I secured those items and placed them in evidence. * * *

Q. Okay. Was anything else taken from this room and logged into evidence with APD in this case?

A. I logged in two boxes of 9mm ammunition, and another scale. * * *

Q. The ammo, is that something you collected at the same time that you had collected the drugs?

A. Yes.

Q. And where did you collect those from?

A. Same room, in plain site [sic], sitting on like a desk or shelf.

Q. Okay. Did you go into any other rooms in that house?

A. I did not.

Q. Did you rifle through that office space after Capt. Chase showed you the drugs and the ammo?

A. I did not.

A. You just collected it and left?

Q. Right. * * * The house wasn't safe.

{¶8} After clearing the office, Captain Chase continued his investigation in the living room and, finally, in the bedroom, which he determined was the origin of the fire.

{¶9} The fire department's report was presented by defense counsel during cross-examination. It indicates that Captain Chase arrived on scene around 7:12 a.m., the fire chief was already on scene, and they both cleared the scene around 9:30 a.m. The fire suppression units were released from the scene one at a time between approximately 8:45 a.m. and 9:07 a.m. Although the fire suppression was complete, Captain Chase was still conducting his investigation:

[Defense Counsel]: And L1, Ladder One, it was the first one that was cleared, was it not?

Capt. Chase: If that's what the report says. To be honest, when the crews were getting released I was inside investigating the fire. The fire chief was releasing crews. * * *

* * *

[Defense Counsel]: And at 9:07 I think there's a note that indicates all units were cleared except for FI-1 [previously identified as Captain Chase] who's on scene conducting investigation.

Capt. Chase: Yes. * * * That is in the narrative.

[Defense Counsel]: And that 9:07 timeline, that kind of lines up with your recollection of your investigation?

Capt. Chase: Yeah, as best I can remember. * * *

{¶10} The trial court granted Hommes' motion to suppress the evidence that was seized by the police department. The court found that Captain Chase was authorized to enter the residence without a warrant to conduct an immediate investigation into the origin and cause of the fire; he was lawfully present, and the suspected illegal drugs and paraphernalia were in plain view; and, recognizing it was not his job to collect evidence of that nature, it was appropriate to report his observations to the police department. The court concluded, however, that "[t]he facts in this case do not present exigent circumstances or any other basis that would trigger an exception to the Fourth Amendment requirement for a search warrant," and therefore the police department was required to "take the information received from the firefighters to an impartial Magistrate for a determination of whether there is probable cause to issue a warrant for a search of the residence."

{¶11} The state of Ohio noticed this appeal, advancing one assignment of error:

{¶12} "The Trial Court erred in granting Appellee's Motion to Suppress."

{¶13} Appellate courts review rulings on a motion to suppress under a mixed standard of review. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "[T]he trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." Id. We must accept the trial court's findings of fact if they are supported by competent, credible evidence, and then independently decide whether those facts satisfy the applicable legal standards without deference to the trial court's decision. Id.

{¶14} In reaching its decision, the trial court relied solely on this court's opinion in State v. Sutcliffe, 11th Dist. Portage No....