State v. Sheppard
| Decision Date | 01 June 2001 |
| Docket Number | No. C-990894 and C-990895.,C-990894 and C-990895. |
| Parties | The STATE of Ohio, Appellee, v. SHEPPARD, Appellant. |
| Court | Ohio Court of Appeals |
Michael K. Allen, Hamilton County Prosecuting Attorney, and Phillip R. Cummings, Assistant Prosecuting Attorney, for appellee.
Hastings & Hastings and Robert R. Hastings, Jr., for appellant.
Defendant-appellant, Kenneth Sheppard, appeals his convictions for assaulting a police officer in violation of R.C. 2903.13(A) and for possession of cocaine in violation of R.C. 2925.11(A). In his two assignments of error, he contends that the trial court erred in overruling his separate motions to suppress his identification, evidence obtained as the result of an illegal entry into his residence, and in-custody statements, and that his convictions were contrary to law and against the manifest weight of the evidence. Because the trial court erred in overruling his
motions to suppress evidence and his in-custody statements, we reverse his convictions and remand the case for further proceedings.
Cincinnati police officer Timothy Bley was on bicycle patrol near Republic Street when he saw two men conducting what he believed to be a drug transaction. After approaching and questioning the two men, Bley noticed that one of them had a plastic bag in his hand. He asked about the bag's contents. The man opened it, and Bley saw what appeared to be crack cocaine. When Bley told the man that he was under arrest, the man pulled Bley off the bicycle and ran way.
Bley chased the man to a park off Republic Street. When Bley caught him, the two began to wrestle on the ground. The man punched Bley in the mouth and attempted to grab his gun. As they continued to struggle near a fence, some individuals on the other side pulled the man under the fence and away from Bley. Bley watched him flee into an apartment building on Republic Street.
The following day, Bley and several other police officers returned to the area, looking for the man who had assaulted Bley. As Bley and another officer questioned people in the neighborhood, an unidentified individual told them that they could find the man they were looking for in a third-floor apartment in a building on Republic Street.
The officers went to the apartment without a warrant, knocked on the door, and announced that they were police officers. They heard sounds of scuffling inside, but no one answered the door. Bley and another officer climbed onto the building's fire escape and peered through a window of the apartment. Bley recognized the individual he saw in the apartment, later identified as Sheppard, as the man who had assaulted him the day before.
When Sheppard saw the officers on the fire escape, he ran into a back bedroom and closed the door. Bley and the other officer opened the window and climbed into the apartment. They opened the front door for their fellow officers. Then, they approached the back bedroom with their weapons drawn and arrested Sheppard.
After the police officers advised Sheppard of his Miranda rights, a police investigator questioned him at the scene. Sheppard was cooperative and stated that he was the person who had been involved in the chase by police the day before. He stated that he did not intend to hurt Officer Bley and that he had run because he was afraid. He apologized to the investigator for hurting Bley. The investigator told him that he should apologize directly to Bley. Subsequently, when Sheppard was being escorted out of the building, he saw Bley and told him that he was sorry and that he had not intended to hurt him.
In his first assignment of error, Sheppard contends that the trial court erred in overruling his motions to suppress evidence, identification, and statements obtained as the result of his warrantless arrest. He argues that the police intrusion into his private residence without a warrant violated his Fourth Amendment rights.
In reviewing the trial court's decision on a motion to suppress, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172, 1174; State v. Neu (Mar. 3, 2000), Hamilton App. No. C-990552, unreported, 2000 WL 238098. But our review of the trial court's findings and conclusions regarding the warrantless arrest of Sheppard involves an additional step. After reviewing the trial court's findings of historical fact for clear error, Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920-921; State v. Duncan (1998), 130 Ohio App.3d 77, 83, 719 N.E.2d 608, 612-613, and accepting those properly supported facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether, from the standpoint of an objectively reasonable police officer, the facts gave rise to probable cause and exigent circumstances. Id. at 696, 116 S.Ct. at 1661-1662, 134 L.Ed.2d at 918-919; State v. Deters (1998), 128 Ohio App.3d 329, 333-334, 714 N.E.2d 972, 975.
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 (1972), 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764. Searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York (1980), 445 U.S. 573, 586-587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 650-651; State v. Jenkins (1995), 104 Ohio App.3d 265, 268, 661 N.E.2d 806, 808. Consequently, the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest. Payton, supra, at 576, 100 S.Ct. at 1374-1375, 63 L.Ed.2d at 644-645; State v. Bowe (1988), 52 Ohio App.3d 112, 113, 557 N.E.2d 139, 141.
But one exception to the warrant requirement permits warrantless felony arrests inside the home if both probable cause and exigent circumstances exist. Welsh v. Wisconsin (1984), 466 U.S. 740, 750, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743-744; Payton, supra, at 583-590, 100 S.Ct. at 1378-1382, 63 L.Ed.2d at 648-652; Jenkins, supra, at 268, 661 N.E.2d at 808. "An exigent circumstance is an emergency that prompts police to believe there is reasonable cause to enter a home without a warrant when a person in the home is in need of immediate aid or to prevent a situation threatening life or limb, or the immediate
loss, removal, or destruction of evidence or contraband." State v. Sladeck (1998), 132 Ohio App.3d 86, 90, 724 N.E.2d 488, 491 (Gorman, J., dissenting), citing Mincey v. Arizona (1978), 437 U.S. 385, 392-393, 98 S.Ct. 2408, 2413-2414, 57 L.Ed.2d 290, 299-301. The scope of this exception must be strictly circumscribed by the exigencies that justify the entry, and "the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh, supra, at 749-750, 104 S.Ct. at 2097, 80 L.Ed.2d at 742; Blanchester v. Hester (1992), 81 Ohio App.3d 815, 818, 612 N.E.2d 412, 414.
The officers in this case maintained that their warrantless intrusion into the apartment was justified because it was not Sheppard's apartment. But it is undisputed that he was an invited guest of the tenant, that he stayed there on a regular basis, and that his belongings were there. Accordingly, he had a legitimate expectation of privacy in the apartment, and he was entitled to claim the protection of the Fourth Amendment. See Minnesota v. Olson (1990), 495 U.S. 91, 95-99, 110 S.Ct. 1684, 1687-1690, 109 L.Ed.2d 85, 92-95.
Upon being directed to the apartment in which Sheppard was present and receiving no answer upon knocking, the police officers went onto the fire escape. They testified, without contradiction, that the landlord of the apartment building had given them express permission to patrol the common areas of the building in an effort to stop the neighborhood drug activity. Because the officers had a right to be on the fire escape when they looked into the apartment and saw Sheppard in plain view, no Fourth Amendment concerns were implicated at that time. Horton v. California (1990), 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112, 121, fn. 5; Texas v. Brown (1983), 460 U.S. 730, 739-740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502.
Further, when Bley recognized Sheppard, from his observations on the previous day, as the individual who had possessed cocaine and who had assaulted him, he had facts and circumstances within his knowledge sufficient to warrant a prudent individual in believing that Sheppard had committed a criminal offense. Consequently, he had probable cause to arrest Sheppard. See Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145; State v. Heston (1972), 29 Ohio St.2d 152, 155-156, 58 O.O.2d 349, 350-352, 280 N.E.2d 376, 377; Deters, supra, at 333, 714 N.E.2d at 974.
The state contends that because Sheppard ran into the back bedroom of the apartment as soon as he saw the police officers on the fire escape, the officers reasonably feared that he could have been destroying evidence, retrieving a weapon, or finding a means of escape. Therefore, the state reasons, there were exigent circumstances to justify the officers' entry into the residence without a warrant. But this court specifically held in Jenkins, supra, that "a warrantless
entry of a home by law enforcement authorities, even upon probable cause, cannot be justified by exigent circumstances of their own making." Jenkins, supra, at 271, 661 N.E.2d at 810. Accord State v. Davis (1999), 133 Ohio App.3d 114, 119-120, 726 N.E.2d 1092, 1096; State v. Sims (1998), 127 Ohio App.3d 603, 612, 713 N.E.2d 513, 519; N. Royalton v. Bramante (Apr. 29, 1999),...
To continue reading
Request your trial