State v. McLemore

[Cite as State v. McLemore, 197 Ohio App.3d 726, 2012-Ohio-521.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO, :

Appellant, : C.A. CASE NO. 24804

v. : T.C. CASE NO. 11CR1551

MCLEMORE, :

Appellee. :

.........

OPINION

Rendered on the 10th day of February, 2012.

.........

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Michele D.
Phipps, Assistant Prosecuting Attorney, for appellant.

Frank A. Malocu, for appellee.

.........

GRADY, Presiding Judge.

{¶ 1} This appeal is brought by the state pursuant to R.C. 2945.67 and Crim.R. 12(K)

from a judgment of the trial court that granted defendant, Tyler McLemore’s, motion to

suppress the evidence.

{¶ 2} In reviewing a trial court’s decision on a motion to suppress, an appellate court

must accept the trial court’s findings of fact if they are supported by competent, credible
 2

evidence in the record. Accepting those facts as true, the court of appeals then independently

determines, as a matter of law without deference to the trial court’s conclusion, whether those

facts satisfy the applicable legal standard. State v. Satterwhite, 123 Ohio App.3d 322, 704

N.E.2d 259 (2nd Dist.1997).

{¶ 3} The facts found by the trial court in this case are as follows:

On April 30, 2011 at about 10:15 pm Amy Hisle called the

Dayton Police Department. Ms. Hisle reported a domestic dispute

between her and the defendant, Tyler R. McLemore. She indicated that

she and McLemore were at 5939 Woodmore Drive in the City of

Dayton, Montgomery County, Ohio.

On April 30, 2011 Officer Thomas Schloss was on duty as a

street patrol officer for the City of Dayton Police Department. Officer

Schloss was assigned at that time to the First District and he worked the

11pm-7am shift. At that time, Officer Schloss had nine years of

experience with the Dayton Police Department.

There was a Dayton Police Department dispatch at

approximately 11:20 pm advising Officer Schloss of the

boyfriend/girlfriend dispute at 5939 Woodmore Drive. Officer Schloss

and his partner Officer Kinstle responded to the dispatch. As they were

proceeding to Woodmore Drive they received another dispatch that

indicated the complaining witness, Amy Hisle, was located at an address

on Leonhard Street in the Old North Dayton neighborhood. Officers

Schloss and Kinstle went to the Leonhard Street address to talk to Amy
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Hisle.

At 1903 Leonhard Street the Officers met with Amy Hisle. Hisle

indicated to them that she had been in an argument with defendant and

that the defendant had put a gun to her head. The officers learned that

defendant had utilized a handgun and a rifle. It was also indicated that

Amy Hisle and defendant are the parents of a child in common.

Amy Hisle did provide the Police Officers with defendant’s cell

phone number. She did not tell the Officer that anyone other than

Defendant was at 5939 Woodmore Drive, although she did indicate that

the residence belonged to Defendant’s parents.

After talking with Ms. Hisle, Officers Schloss and Kinstle

proceeded to Woodmore Drive. Upon arrival at 5939 Woodmore Drive

the officers were joined by two other Dayton Police Officers. All the

Officers were very concerned with defendant’s possession of a firearm

or firearms. So, the Officers spread out around the house.

Officer Kinstle, utilizing information he received from Amy

Hisle, placed a cellular telephone call to defendant. Defendant answered

the call and spoke with Officer Kinstle. Shortly after the conversation,

defendant exited the residence and was taken into custody by the Police.

Defendant was secured, but momentarily remained outside. He was

relatively cooperative and did not act in an excited or agitated manner at

that time.

One of the Officers stayed with defendant while the other three
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Officers entered the residence. The Officers were in the residence for

purposes of a “protective sweep.” They asserted that they were

concerned about a potential that others may be in the residence. These

other individuals could potentially be injured, or could pose a threat to

them (Officers) as they detained defendant and took him away. There

was no testimony that the Officers had received information about other

individuals being in the house. There was no testimony that they asked

defendant if anyone else was in the house and he indicated that there

was. There is no indication that they saw anyone moving around in the

house or heard any noise before defendant came out or while they were

securing him. There was no evidence that they knocked on the door and

called out loudly seeking a response from anyone inside.

The Officers conducted a search of the house looking for other

human beings. They did not make an extensive search such as looking in

drawers, but they did look in corners and closets to see if any other

people were there. No one was found in the house.

While the officers were in the house they did see an open box of

shotgun shells on a chair in the house. They saw the gun cabinet and

noticed that one firearm was missing.

After completing the “protective sweep” of the house one of the

Officers, Officer Schloss, advised the defendant of his Miranda Rights.

The defendant was secured in the back of a marked police cruiser. The

defendant acknowledged he understood his rights and agreed to talk to
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the Officer. The conversation was normal in tone. Defendant did not

exhibit any outward indications of being under the influence of alcohol

or drugs.

Defendant was informed of his right not have a search made of

the house without a search warrant and his right to refuse to consent to a

search. After being so advised, defendant asked to call his mother.

Defendant talked to his mother by cell phone about the police request to

search the house. After talking to his mother, defendant consented to the

search of the premises. Defendant said he would sign the Consent to

Search Form memorializing his decision to consent to the search.

After receiving defendant’s permission, the Officers engaged in a

comprehensive search of 5939 Woodmore Drive. They found a firearm

under a cushion for a chair or couch.

{¶ 4} Defendant was indicted on one count of felonious assault, R.C. 2903.11(A)(2),

one count of kidnapping, R.C. 2905.01(A)(3), and two counts of domestic violence, R.C.

2919.25(A). Defendant filed a motion to suppress all evidence obtained by police, including a

gun, ammunition, and defendant’s statements to police.

{¶ 5} Following a hearing held on August 29, 2011, at which only Dayton Police

Officer Thomas Schloss testified, the trial court granted defendant’s motion to suppress on

August 31, 2011. The court concluded that police lacked a reasonable suspicion that an

emergency situation existed in this case, when someone inside the residence was in need of

immediate aid or when another person who remained inside the residence after defendant’s

arrest posed a danger to the officers or others, that would justify a warrantless emergency entry
 6

into and a protective sweep of defendant’s residence. Accordingly, the court held that the

physical evidence seen by officers during the protective sweep and defendant’s subsequent

statements about those items, which were later seized following defendant’s consent to search,

were the fruit of an illegal warrantless entry and search of defendant’s home that violated

defendant’s Fourth Amendment rights, and therefore those items were inadmissible and must

be suppressed.

{¶ 6} The state timely appealed to this court from the trial court’s decision granting

defendant’s motion to suppress the evidence.

FIRST ASSIGNMENT OF ERROR

{¶ 7} “The trial court improperly sustained McLemore’s motion to suppress, holding

that the police violated the Fourth Amendment when they conducted a ‘protective sweep’ of

McLemore’s residence.”

{¶ 8} The state relies on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d

276 (1990), to argue that the trial court erred when it found the protective sweep was illegal.

The state argues that on the facts of this case, police had reasonable grounds to suspect that

following defendant’s arrest, other persons who were armed and posed a threat to the safety of

the officers or others might still be in the residence.

{¶ 9} Warrantless searches and seizures are per se unreasonable under the Fourth

Amendment, subject to only a few well-established exceptions. Katz v. United States, 389 U.S.

347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Cosby, 177 Ohio App.3d 670,

2008-Ohio-3862, 895 N.E.2d 868, ¶ 16 (2nd Dist.). One of those exceptions is the rule

regarding “protective sweeps” announced in Buie, a corollary of the exigent- or

emergency-circumstances exception. See also State v. Sharpe, 174 Ohio App.3d 498,
 7

2008-Ohio-267, 882 N.E.2d 960 (2nd Dist.). Police bear a heavy burden when attempting to

demonstrate an urgent need that might justify warrantless searches. Welsh v. Wisconsin, 466

U.S. 740, 749-750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). In Sharpe, ¶ 32-37, we discussed

Buie as follows:

In Maryland v. Buie, 494 U.S. 325, two men, one of whom wore

a red running suit, committed an armed robbery of a pizza restaurant.

That same day, police obtained arrest warrants for two suspects, Jerome

Buie and Lloyd Allen. Buie's house was placed under surveillance. Two

days later, believing that Buie was inside his home, police entered to

arrest him. In an attempt to find Buie, one of the officers first secured

access to the basement and then twice shouted out into the basement,

ordering anyone down there to come out. A male voice called back in

reply. Eventually, a pair of hands was seen at the bottom of the stairwell,

and Buie came up the stairs and was arrested. Thereafter, another officer

entered the basement “in case someone else” was down there. When he

did, the officer found a red running suit in plain view, connecting Buie to

the armed robbery.

Buie moved to suppress evidence of the red running suit police

had seized. A Maryland court of appeals held that the trial court erred

when it denied Buie's motion. On review, the Supreme Court reversed

the state court, holding that the warrantless entry into Buie's basement

was not unreasonable.

The Supreme Court emphasized that per Payton v. New York
 8

(1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, the warrant for

his arrest authorized police to enter Buie's residence in order to find and

arrest him, and to search the premises for him until he was found.

However, that authority terminated when Buie was arrested. The court

rejected Buie's argument that probable cause was required for police to

then enter the basement as they did. Drawing an analogy to Terry v. Ohio

(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Michigan v.

Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, which

likewise rejected a probable-cause standard when there is a “need for

law enforcement officers to protect themselves [against] violence in

situations where they may lack probable cause for an arrest,” Terry, 392

U.S. at 24, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court in Buie

found a similar “interest of the officers in taking steps to assure

themselves that the house in which a suspect is being, or has just been,

arrested, is not harboring other persons who are dangerous and who

would unexpectedly launch an attack.” 494 U.S. at 333, 110 S.Ct. 1093,

108 L.Ed.2d 276.

The Supreme Court also pointed out in Buie that in contrast to the

investigative detentions in Terry and Long, “[a] protective sweep * * *

occurs as an adjunct to the serious step of taking a person into custody

for the purpose of prosecuting him for a crime,” id., being thus

comparable to a search incident to an arrest. Further, “an in-home arrest

puts the officer at the disadvantage of being on his adversary's ‘turf.’” Id.
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Nevertheless, returning to the requirements for a search in Terry and

Long, the Supreme Court wrote:

“We agree with the State, as did the court below, that a warrant

was not required. We also hold that as an incident to the arrest the

officers could, as a precautionary matter and without probable cause or

reasonable suspicion, look in closets and other spaces immediately

adjoining the place of arrest from which an attack could be immediately

launched. Beyond that, however, we hold that there must be articulable

facts which, taken together with the rational inferences from those facts,

would warrant a reasonably prudent officer in believing that the area to

be swept harbors an individual posing a danger to those on the arrest

scene. This is no more and no less than was required in Terry and Long,

and as in those cases, we think this balance is the proper one.” 494 U.S.

at 334.

By adopting the “reasonable and articulable suspicion” standard

of Terry and Long, the Supreme Court in Buie imposed a circumstantial

predicate on the authority conferred on law enforcement officers to

conduct a protective sweep of a defendant's residence following his

arrest. There must be articulable facts from which police reasonably

suspect that the premises in which the defendant is arrested harbors

another person or persons who may launch an attack on the officers who

are there. Absent that basis to act, a protective sweep is an unreasonable

search for purposes of the Fourth Amendment, and any incriminating
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evidence it produces must be suppressed. Buie, 494 U.S. at 327.

{¶ 10} We further stated in Sharpe at ¶ 44, 46:

The protective-sweep exception established in Buie is grounded on the

“interest of the officers in taking steps to assure themselves that the

house in which a suspect is being, or has just been, arrested is not

harboring other persons who are dangerous and who could unexpectedly

launch an attack.” 494 U.S. at 333. Once arrested, the subject poses no

risk. The fact that a gun or other weapon is on the premises could give

other persons an instrument to use in such an attack. But the gun or other

weapon poses no danger to officers absent a person or persons who

might use it to launch an attack.

* * *

The protective-sweep exception to the warrant requirement in

Buie and Lyons requires some positive indication that another person or

persons remain in the residential premises where a subject is arrested and

that they pose a threat to the safety of officers or others. Lacking that

indication, there is not a need to act sufficient to avoid the requirement of

a prior warrant if the house is to be searched after a defendant's arrest

there. Mere suspicion that a weapon remains inside is insufficient.

Likewise, not knowing whether anyone else is there is an insufficient

pretext because the need for protection necessarily implies that another

person or persons are there. Faced with such doubts, and absent any

reason to believe that other persons may be inside, officers must obtain a
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warrant before they conduct a search of a defendant's house after a

defendant's arrest there.

{¶ 11} No perpetrators other than defendant were implicated in the domestic-violence

incident for which defendant was arrested. When defendant came out of the residence at 5939

Woodmore Drive and was taken into custody by police, there was no suggestion either that

another person or persons remained inside that residence or that the person posed a threat to the

safety of the officers or others. Officers had no reason to believe that the victim of the

domestic-violence offense, Amy Hisle, remained inside, because the officers had previously

interviewed Hisle at another location and knew she was safe. Officers did not receive any

information from Amy Hisle that any other persons were inside the residence. To the contrary,

Hisle told police that defendant was watching the house for his parents who were out of town.

{¶ 12} Upon arrival, four police officers surrounded the house, and they did not see

anyone or hear any voices coming from inside the home. The officers never asked defendant if

anyone else was inside the home, and they did not knock on the door or call out to inquire about

any other person’s presence. After defendant exited the home and was taken into police custody

outside the home, he no longer had access to any weapons or evidence inside the residence and

posed no threat to the officers or anyone else.

{¶ 13} The state argues that because nearly two hours had passed between the victim’s

initial call to police and the officers’ arrival at 5939 Woodmore Drive, police had no idea who

might have entered the residence during that time. Not knowing whether anyone else was inside

the residence is an insufficient pretext for a protective sweep to learn whether anyone is, in fact,

inside. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960. Furthermore, mere

suspicion that a weapon remains inside is insufficient. Id. The weapon itself posed no threat,
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absent someone who might use it. Faced with such doubts, and absent any reason to believe

that other persons may be inside, officers must obtain a warrant before they conduct a search of

defendant’s home after his arrest there. Id.

{¶ 14} We agree that on this record, the officers lacked a reasonable, articulable

suspicion that following defendant’s arrest, other persons who might pose a danger to the

officers remained inside the residence. The protective-sweep exception to the Fourth

Amendment’s warrant requirement has not been established. Therefore, the warrantless

protective sweep of this residence conducted by police violated defendant’s Fourth

Amendment rights.

{¶ 15} To the extent that the state also relies upon the exigent- or

emergency-circumstances exception to the Fourth Amendment’s warrant requirement, we

stated in Sharpe, at ¶ 48, that the exception

justifies a warrantless entry in a variety of situations, including when

entry into a building is necessary to protect or preserve life, to prevent

physical harm to persons or property, or to prevent the concealment or

destruction of evidence, or when someone inside poses a danger to the

police officer's safety. Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct.

2408, 57 L.Ed.2d 290; United States v. McConney (C.A.9, 1984), 728

F.2d 1195; State v. Price (1999), 134 Ohio App.3d 464, 731 N.E.2d 280;

State v. Applegate (1994), 68 Ohio St.3d 348, 626 N.E.2d 942; State v.

Overholser (July 25, 1997), Clark App. No. 96CA0073, 1997 WL

451473; State v. Sladeck (1998), 132 Ohio App.3d 86, 724 N.E.2d 488.

{¶ 16} Police had no reasonable basis to suspect that anyone in need of their aid was
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inside the residence after defendant came outside and was arrested by police. Police knew that

the sole victim was not at that location and was safe. That they did not know whether anyone

else was inside is insufficient to justify their entry. Sharpe. Their concern that another person

might be inside who needed aid is wholly speculative on these facts and presented no

emergency justifying their warrantless entry into the residence. Id. For the same reasons we

concluded that the protective-sweep exception has not been established in this case, neither has

the exigent- or emergency-circumstances exception been established. The warrantless

protective-sweep search of this residence by police violated defendant’s Fourth Amendment

rights.

{¶ 17} The state’s first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 18} “The trial court improperly suppressed McLemore’s statements and the

evidence recovered during the search of the residence after McLemore signed the consent to

search as fruit of the poisonous tree.”

{¶ 19} The trial court suppressed evidence of defendant’s statement in response to

police questioning that the shotgun police subsequently seized was under the cushions of a

couch. The court reasoned that because officers gained the knowledge that prompted their

questions from their observation during the protective sweep that a rifle or shotgun was missing

from a gun cabinet, defendant’s statement derived from the illegal protective sweep and must

be suppressed as fruit of the poisonous tree.

{¶ 20} The derivative-evidence rule, or fruit-of-the-poisonous-tree doctrine as it is

widely known, requires suppression of evidence that was seized in a seemingly lawful manner
 14

but about which police learned because of a prior constitutional violation such as an illegal

search or seizure. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939);

Sharpe; State v. Myers, 119 Ohio App.3d 376, 695 N.E.2d 327 (2nd Dist.1997). The

exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal

search or seizure, but also evidence that is subsequently discovered and derivative of that prior

illegality. Id.; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

{¶ 21} The state argues that the trial court erred when it suppressed defendant’s

statement that the shotgun was under the cushions of a couch on a finding that the statement was

the product of the illegal protective sweep and therefore barred by the derivative-evidence rule.

The state points out that because defendant was under arrest for domestic violence when he

made the statement in response to police questioning, defendant’s statement was therefore not

evidence derivative of the protective sweep.

{¶ 22} The state’s argument relies on the independent-source exception to the

derivative-evidence rule. The exception provides that if knowledge of the derivative evidence is

gained from an independent source, rather than from the government’s own illegality, the

derivative evidence may be used. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40

S.Ct. 182, 64 L.Ed.319 (1920).

{¶ 23} When defendant made the incriminating statement concerning the location of

the shotgun, he was under arrest on a charge of domestic violence and had been Mirandized.

Prior to their arrival at defendant’s place of residence, where the domestic-violence offense

occurred, police had interviewed the complainant, Amy Hisle. The trial court found that in

interviewing Hisle, officers “learned that defendant had utilized a handgun and a rifle.” Hisle’s

statement was a source of knowledge for the question police asked defendant that was
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independent of the illegal protective sweep. Therefore, defendant’s statement made in

response to that question is not subject to suppression under the derivative-evidence rule.

{¶ 24} The state further argues that the second, subsequent warrantless entry into

defendant’s residence made by the officers, and their seizure of the shotgun, was authorized by

the consent to search given by defendant, and suppression of that evidence is therefore not

required by the prior illegal warrantless search.

Consent is not an exception to the warrant requirement fashioned

out of exigent circumstances, but a decision by a citizen not to assert

Fourth Amendment rights. At issue are: (1) the test of voluntariness,

(2) whether the individual consenting may place limitations upon the

search, and (3) who is authorized to consent. The burden of proving

consent is on the prosecution. Whether a consent to a search is

voluntary or the product of duress or coercion is a question of fact to be

determined from the totality of the circumstances. The state must show

by clear and convincing evidence that the consent was freely and

voluntarily given which is more than a mere preponderance but less a

certainty than is required to prove guilt beyond a reasonable doubt.

Consent may be oral or written. A written consent is strong evidence of

a defendant’s willingness to allow a search.

Katz, Ohio Arrest, Search and Seizure, Section 19:1 (2008).

{¶ 25} The record does not indicate that defendant was not authorized to consent to the

search officers performed when they entered his residence and seized the shotgun or that in

doing so officers exceeded any limits the consent imposed. The question, then, is whether
 16

defendant’s consent was voluntarily given.

{¶ 26} In State v. LaPrairie, Greene No. 2010CA0009, 2011-Ohio-2184, we wrote:

We have held that even when a consent is not the product of

some more specific coercion or duress, and therefore was voluntary in

the usual sense, evidence seized in a search performed after the consent

was given remains subject to suppression when it was tainted by the fact

of a prior illegal entry upon the premises that were searched. Dayton v.

Lowe (Dec. 31, 1997), Montgomery App. No. 16458. “The question is

whether the consent was ‘sufficiently an act of free will to purge the

primary taint of the unlawful invasion.’” State v. McGuire, Montgomery

App. No. 24106, 2010–Ohio–6105, ¶ 22, quoting State v. Cooper,

Montgomery App. No. 20845, 2005–Ohio–5781, ¶ 28. “‘[S]uppression

is required of any items seized during the search of the house, unless the

taint of the initial entry has been dissipated before the consents to search

were given’; dissipation of the taint resulting from the illegal entry

‘ordinarily involves some showing that there was some significant

intervening time, space, or event.’” United States v. Buchanan (C.A.6,

1990), 904 F.2d 349, 356, quoting United States v. Vasquez (C.A.2,

1980), 638 F.2d 507–527–529, cert. denied, 450 U.S. 970, 101 S.Ct.

1490, 67 L.Ed.2d 620 (1981).

{¶ 27} Defendant was under arrest when he signed the consent form, but the fact of

arrest does not necessarily render consent involuntary. The question becomes whether the

duress present in a particular case exceeds the normal duress inherent in any arrest. State v.
 17

Simmons, 61 Ohio App.3d 514, 573 N.E.2d 165 (9th Dist. 1989).

{¶ 28} Officer Schloss testified that after defendant said that the shotgun was under the

couch cushions, he presented defendant with a consent-to-search form, which he read aloud to

defendant. The form states that the signor has “been informed of my constitutional right not to

have a search made of the premises.” Defendant said that he understood the form but had some

initial reservations because the house belonged to his parents, who were out of town, and he

was house-sitting. Defendant asked to first speak with his mother by cell phone and did so for

approximately five to seven minutes. After concluding the conversation, defendant said he

was ready to sign, and did sign, the consent form.

{¶ 29} The trial court’s findings of fact are wholly consistent with the testimony of

Officer Schloss. The court concluded: “Based on all the evidence, the court concludes that the

defendant knowingly and voluntarily * * * granted permission to search the residence.” The

court nevertheless suppressed the evidence officers seized in the course of the consensual

search, finding that the prior and illegal protective sweep required suppression of that evidence

under the fruit-of-the-poisonous-tree doctrine.

{¶ 30} The fruit-of-the-poisonous-tree doctrine, or derivative-evidence rule, applies

when a Fourth Amendment or other constitutional violation has occurred. The trial court

correctly found that the protective sweep presented a Fourth Amendment violation. However,

the court also found that defendant’s subsequent consent was voluntary. That voluntary consent

was a decision by defendant to not assert his Fourth Amendment rights with respect to the

search and seizure to which he consented. Having done so, defendant waived his right to invoke

Crim.R. 12(C)(3) to ask the court to suppress the evidence seized in the course of the

consensual search on a claim that the evidence the officers seized was tainted by the prior
 18

protective sweep and the violation of defendant’s Fourth Amendment rights that sweep

involved.

{¶ 31} The second assignment of error is sustained. The trial court’s order suppressing

evidence of defendant’s statement and the shotgun police seized is reversed. The case is

remanded to the trial court for further proceedings consistent with this opinion.

Judgment reversed

and cause reversed.

DONOVAN and HALL, JJ., concur.