State v. Hunter

[Cite as State v. Hunter, 2011-Ohio-6321.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
: Appellate Case No. 24350
Plaintiff-Appellee :
: Trial Court Case No. 09-CR-4069/2
v. :
:
STEFOUN D. HUNTER : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........

OPINION
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Rendered on the 9 day of December, 2011.

...........

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building,
P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

ENRIQUE G. RIVERA-CEREZO, Atty. Reg. #0085053, Post Office Box 734, Dayton,
Ohio 45419
Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Stefoun D. Hunter appeals from his three

convictions for Having Weapons Under Disability, a third-degree felony, in violation of

R.C. 2923.13(A)(3); three convictions for Possession of Cocaine, one fourth- and two
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fifth-degree felonies, in violation of R.C. 2925.11(A); one conviction for Possession

of Heroin, a fifth-degree felony, in violation of R.C. 2925.11(A); and one conviction for

Possession of Marijuana, a fifth-degree felony, in violation of R.C. 2925.11(C)(3)(c).

The jury also found Hunter guilty of firearm specifications with respect to each drug

conviction; the firearm specifications were all merged for sentencing purposes.

Hunter was sentenced to four years in prison.

{¶ 2} Hunter contends that the trial court erred when it denied his motion to

suppress evidence obtained during the initial search of the residence.

{¶ 3} We conclude that the police officers lawfully entered the residence

without a warrant, based upon anonymous 9-1-1 reports that a person was being

held captive in the residence, corroborated by the occupants of the residence

ignoring the responding police officers’ repeated attempts to gain their attention and,

after finally answering the door, immediately attempting to close the door.

{¶ 4} But we also conclude that the trial court’s finding that weapons found in

the home were found in plain view during a lawful search for persons is predicated

upon a mistake of fact that we cannot find to have been harmless. The trial court

found that the weapons were found under a bed where a victim might have been; in

fact, the weapons were found between the bed’s box springs and mattress.

Accordingly, Hunter’s convictions for Having Weapons Under a Disability and his

conviction for firearm specifications with respect to his other convictions are

Reversed; his convictions for Possession of Cocaine, Heroin, and Marijuana are

Affirmed; and this cause is Remanded for re-determination of the suppression motion

with respect to the weapons. If the trial court should again deny the motion to
 3

suppress, it may re-enter the judgment of conviction with respect to the weapons

offenses.

I

{¶ 5} In early December 2009, a caller reported hearing six gunshots

immediately followed by three men running into 5150 Northcutt Place in north

Dayton, Ohio. The call was placed to the Montgomery County Sheriff’s Office 9-1-1

Dispatch Center. The call was received from a cell phone that was either not

activated or out of minutes; consequently, there was no way to trace the call. The

caller refused to give a name. The call was received at 6:51 p.m.

{¶ 6} Four minutes later, Deputy Sheriff Walt Steele and his partner, Deputy

Sheriff Kyle Biryani, were dispatched and arrived at the scene at 7:00 p.m. Deputy

Sheriff Anthony Hutson, Herb Thornton, and Fred Zollers were also dispatched as

back-up.

{¶ 7} Deputy Hutson and his reserve partner were the first on the scene.

When they arrived, the front door was closed and there was a light on inside the

residence. Deputy Hutson positioned his partner at the front door as he went to the

rear door because that is where the three men had supposedly run into the

residence. Deputy Hutson knocked at the rear door between fifteen and twenty

times. Individuals inside the residence, instead of answering the door, responded by

turning up the volume on either a television or radio. Deputy Hutson continued to

knock on the rear door. Shortly thereafter, Deputy Thornton joined him.

{¶ 8} Then, at 7:11 p.m., another 9-1-1 call from a deactivated or

depleted-minutes phone came into the Montgomery County Sheriff’s 9-1-1 Dispatch
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Center. There was no indication given to the Dispatch Officer that it was the same

person who made the initial report. The caller identified himself as “Shawn Parker”

and gave a personal cell-phone number, but explained that it was “not in service.”

Parker stated that he had received a text message from his son that the individuals

inside the residence had tried to rob him and that he was being held against his will

in a closet upstairs, where he could see the police officers. After this information

was relayed to officers at the scene, Deputy Hutson noticed someone looking out a

window, rapidly pulling their head back inside the window, and abruptly closing the

window. Deputy Hutson continued to knock at the rear door, louder in order to

overpower the increased volume of either the television or radio. Meanwhile, Deputy

Zollers began to evacuate the surrounding residences.

{¶ 9} At about 7:30 p.m., a man opened the rear door. Deputy Hutson, with

his weapon drawn, began to explain why he was knocking; before he could complete

his explanation, the man abruptly began to close the door. Deputies Hutson and

Thornton forced their way into the apartment. Deputy Thornton began securing the

man who answered the door. Deputy Hutson continued into the residence and

found six men sitting on a coach and another man in the stairwell. Other deputies

also entered the residence and secured both the man in the stairwell and another

man from upstairs. No hostages or firearms were found in the initial search, but

marijuana and a flak jacket were found in plain view in the residence. During a

second search, a sergeant found a shotgun rifle and several hand guns between a

mattress and a box spring while searching for the reported captive underneath a bed.

{¶ 10} A search warrant was then obtained, leading to the discovery of
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additional evidence.

{¶ 11} Hunter was arrested and charged by indictment with three Possession

of Cocaine offenses, one Possession of Heroin offense, one Possession of

Marijuana offense, and three Having Weapons Under a Disability offenses. The

drug charges all included firearm specifications.

{¶ 12} Hunter moved to suppress the evidence obtained from the residence,

contending that it was obtained as the result of an unlawful search and seizure.

Following a hearing, his motion was denied.

{¶ 13} Following a jury trial, Hunter was convicted of all charges and

specifications, and was sentenced accordingly. From his conviction and sentence,

Hunter appeals.

II

{¶ 14} Hunter’s sole assignment of error is as follows:

{¶ 15} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT WHEN IT IMPROPERLY DENIED THE DEFENDANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF THE RIGHTS CONFERRED

BY ARTICLE I, SECTION XIV OF THE OHIO CONSTITUTION AND THE FOURTH

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.”

A – The Warrantless Entry Into the Residence

{¶ 16} Fourth Amendment searches without a warrant are per se

unreasonable and illegal in the absence of an exception to the warrant requirement.

Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L. Ed.2d 576;

State v. Cosby (2008), 177 Ohio App.3d 670, 2008-Ohio-3862. The Supreme Court
 6

of Ohio has recognized seven exceptions including the “presence of exigent

circumstances.” State v. Price (1999), 134 Ohio App. 3d 464, 467. An exigent

circumstance exists when it is necessary to protect or preserve life, or to prevent loss

of evidence, or a danger to officer safety exists. State v. Sharpe (2008), 174 Ohio

App.3d 498, 2008-Ohio-267. An officer must present a reasonable, articulable basis

along with rational inferences generally associated with probable cause in order to

qualify for the emergency exception. State v. White (2008), 175 Ohio App.3d 302,

2008-Ohio-657; See State v. Applegate (1994), 68 Ohio St.3d 348, 350. Absent

these exigent circumstances, officers are barred from entering one’s home to

perform a search. Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.

Ed.2d 639. “At a suppression hearing, the state bears the burden of proving that a

warrantles search or seizure meets Fourth Amendment standards of

reasonableness.” Maumee v. Weisner (1999), 87 Ohio St.3d 295, 297.

{¶ 17} We agree with Hunter that the Dispatch Center received two

anonymously made phone calls. These two calls provided separate and distinct

information regarding one address and the occupants of the residence. The State’s

witness at the suppression hearing testified that there was no way to determine

whether these two calls were from the same individual.

{¶ 18} A hang-up 9-1-1 call creates a circumstance where a reasonable

investigation can be made. State v. Hodge, Montgomery App. No. 23694,

2011-Ohio-633. But a police officer does not have probable cause to engage in a

search based solely on an anonymous tip. Burchett, supra at ¶ 22.

{¶ 19} Of course, merely knocking at a residence door does not violate the
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Fourth Amendment after receiving any sort of tip. State v. Harris (2003),

Montgomery App. No. 19479, 2003-Ohio-2519, ¶ 12. Nor does failure to volunteer

that the person knocking is a police officer render that conduct unreasonable or

unlawful. State v. Barber, Montgomery App. No. 19107, 2002-Ohio-3278, p. 3.

{¶ 20} An anonymous tip cannot support probable cause for a stop without

corroboration. Alabama v. White (1990), 496 U.S. 325, 329, 110 S.Ct. 2412, 110

L.Ed.2d 301. However, the corroboration must demonstrate the assertion of

illegality and not just the identity of the person. Florida v. J.L. (2000), 529 U.S. 266,

272, 120 S.Ct. 1375, 146 L.Ed.2d 254. In other words, Deputies Hutson and

Thornton needed to base their entry on reasonable and articulable suspicion of the

totality of circumstances to corroborate the two anonymous calls. This includes the

actions by those inside the residence along with the two anonymous tips. See State

v. Russell (2004), 2004-Ohio-1700, ¶ 2, ¶ 18 (finding that reasonable suspicion was

created based upon an anonymous tip, the police officer’s observations of the

defendant, and the furtive movements of the front seat passenger after a police order

to show his hands); In Re D.W. (2001), 141 Ohio App.3d 409 (reversing the denial of

a motion to suppress because police officers failed to corroborate an anonymous call

reporting that several individuals in a general area at a reasonable time of the day

were armed).

{¶ 21} The crucial issue in this appeal is whether, in order to support a

warrantless entry into a residence, corroboration is required for an anonymous tip

reporting circumstances in which a victim is likely to be in physical peril and, if so,

how much corroboration is required.
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{¶ 22} The trial court cited Wayne v. United States, 318 F.2d 205, 212 (D.C.

Cir. 1963), cert. denied, 375 U.S. 860 (1963), an opinion of then-Judge Warren Earl

Burger, for the proposition that the need to protect or preserve life or avoid serious

injury is justification for what would be otherwise illegal absent an exigency or

emergency. The problem with reliance on this opinion is Judge Burger's admission,

at 318 F.2d 209, that in this he is speaking only for himself. One judge dissented,

and the other judge concurred on an unrelated basis.

{¶ 23} Similarly, the State relies upon State v. White, 175 Ohio App.3d 302,

2008-Ohio-657, for the proposition that probable cause is not needed in an

emergency situation, but only a reasonable belief, approaching probable cause, that

it is necessary to investigate an emergency threatening life and limb. But like Judge

Burger in Wayne v. United States, Judge Clair Dickinson in State v. White was

speaking only for himself as to this proposition. Judge Lynn Slaby, concurring,

opined that there was probable cause for entry into a residence in that case. Judge

Donna Carr, in a one-sentence concurring opinion, observed that both parties had

agreed that there was probable cause (the dispute was about whether there were

exigent circumstances), so there was no need to address a lesser standard.

{¶ 24} 3 LaFave Search and Seizure, §6.6(a), at 453, n.12, cites several

cases involving anonymous reports implicating a person in peril resulting in a

warrantless entry into a residence. United States v. Holloway, 290 F.3d 1331, 1338
th
(11 Cir., 2002) holds that an anonymous tip need not be corroborated for a

warrantless search of a residence where the information provided “involved a serious

threat to human life.” In State v. Boggess, 115 Wis. 2d 443, 340 N.W.2d 516
 9

(1983), an anonymous phone call reporting battered children was held to be

sufficient for a warrantless entry in a home where the caller had provided details,

even though the details were not corroborated (for the most part) at the time of entry.

{¶ 25} On the other hand, in Kerman v. City of New York, 261 F.3d 229 (2nd

Cir., 2001), an anonymous caller gave the name and telephone number of a man she

said was at a given residence, who she said was mentally ill, off his medication,

acting crazy, and “possibly” had a gun. The court held that: “Based on the absence

of evidence in the record to corroborate the 911 call and the protections afforded to

private dwellings under the Fourth Amendment, we find that the officers’ warrantless

entry into [the plaintiff’s] apartment violated the Fourth Amendment.” (This was a

civil suit against the police and the city by the person whose rights were allegedly

violated.)

{¶ 26} These cases involve balancing the compelling interests of the State in

the protection of potential victims from death or serious bodily injury, versus the

compelling interest of residents in the sanctity of their home. In reaching the

conclusion that an uncorroborated anonymous tip that an individual was carrying a

firearm was insufficient to justify a stop-and frisk, the Supreme Court noted:

“Firearms are dangerous, and extraordinary dangers sometimes justify unusual

precautions.” Florida v. J.L., supra, 529 U.S. 272. Interestingly, the Supreme Court

further noted: “The facts of this case do not require us to speculate about the

circumstances under which the danger alleged in an anonymous tip might be so

great as to justify a search even without a showing of reliability. We do not say, for

example, that a report of a person carrying a bomb need bear the indicia of reliability
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we demand for a report of a person carrying a firearm before the police can

constitutionally conduct a frisk.” Id., 529 U.S. 273-274. This suggests to us that a

court needs to weigh the right of persons to be secure from unreasonable searches

and seizures (and specifically to enjoy privacy in a residence) against the needs of

the police to protect potential victims from death or bodily harm.

{¶ 27} In State v. Wilson, Clinton App. No. CA2006-03-008, 2007-Ohio-353, ¶

29, a broken screen in a fairly dilapidated residence that an experienced police

officer took to be evidence of forced entry was deemed to be sufficient corroboration

of an anonymous report of a burglary to justify a warrantless entry.

{¶ 28} In State v. Tucker, Clark App. No. 2009 CA 82, 2010-Ohio-3920, there

was a report of an armed burglary at a trailer at a trailer park. The opinion does not

specify whether the report was anonymous. On the arrival of the police on the

scene, they noticed that an adjacent trailer had its rear screen and inner doors open.

There was no response to their hails. They went in. We upheld the warrantless

entry. If this was an anonymous report, there was very little corroboration, but we

deemed it sufficient.

{¶ 29} We conclude that when an anonymous tip includes a report that a

victim is in physical peril, some corroboration is required to justify a warrantless entry

into a residence, but not much corroboration.

{¶ 30} In the case before us, when Deputy Hutson arrived at the residence, he

observed the front door locked and lights on. When Deputy Hutson knocked at the

rear door, it was actively ignored by the occupants of the residence. After knocking

for approximately eleven minutes and stopping to receive the second dispatch call,
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Deputy Hutson noticed someone in the window upstairs from his position

investigating whether or not he had left and abruptly shut the window upon being

noticed. After another fifteen to twenty minutes of knocking, someone opened the

door, but immediately began trying to close the door upon realizing that it was a law

enforcement officer at the door. Those circumstances supported a reasonable

inference that the occupants of the residence were involved in a criminal activity that

they did not want a police officer to see or overhear. Therefore, the circumstances

provided some corroboration, even if slight, of the information received from the

anonymous caller or callers that the occupants had just fired their weapons and had

just robbed someone and were holding him captive. That would lead a reasonable

police officer to believe that a person was in imminent danger of physical harm, an

exigent circumstance justifying a warrantless search of the residence.

B – The Discovery and Seizure of the Firearms

{¶ 31} The Plain View Doctrine is another exception to the requirement for a

search warrant. See Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.C.t

2022, 29 L.Ed.2d 564. The Supreme Court of Ohio has stated that: “ * * * , in order

to qualify under the plain view exception, it must be shown that (1) the initial intrusion

which afforded the authorities the plain view was lawful; (2) the discovery of the

evidence was inadvertent; and (3) the incriminating nature of the evidence was

immediately apparent.” State v. Williams (1978), 55 Ohio St.2d 82, 85.

{¶ 32} In the case before us, we have determined in Part II – A, above, that

the entry into the residence was lawful. Hunter does not argue that the incriminating
 12

nature of the evidence found under the mattress – three firearms – was not

immediately apparent. What we must determine, therefore, is whether the discovery

of the weapons was inadvertent.

{¶ 33} The search conducted in this case is known as a “protective sweep,”

defined by the United States Supreme Court as “a quick and limited search of

premises, incident to an arrest and conducted to protect the safety of police officers

and others. It is narrowly confined to a cursory visual inspection of those places in

which a person might be hiding.” Maryland v. Buie (1990), 494 U.S. 325, 327, 110

S.Ct. 1093, 108 L.Ed.2d 276. As we have noted, “There must be articulable facts

from which police reasonably suspect that the premises in which defendant is

arrested harbors another person or persons who may launch an attack on the

officers who are there. ” State v. Young (2011), 2011-Ohio-4875, ¶ 19, quoting from

State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, ¶ 37

{¶ 34} The inadvertency requirement of the Plain View Doctrine, as the

Supreme Court of Ohio has stated, is “intended to guard against planned,

warrantless seizures.” State v. Halczyszak (1986), 25 Ohio St.3d 301, 303. In

other words, officers are banned from “maneuvering themselves within plain view of

the object they want.” Id., at 303, quoting from Coolidge v. New Hampshire, supra,

at 403 U.S. 470, fn. 26.

{¶ 35} A weapon has been ruled in “plain view” when the outline of a hand gun

was seen by an officer in the back pocket of a defendant. See State v. Suber

(1997), 118 Ohio App.3d 771, 780, citing State v. Kistler (November 6, 1986),

Franklin App. Nos. 86AP-289 and 86AP-301. A weapon has also been ruled in
 13

plain view when, upon entering and searching under exigent circumstances similar to

those pertaining in this case, an officer found a weapon partially covered at the foot

of a bed. State v. Wyatt, Summit App. No. 22070, 2004-Ohio-6546. In State v.

Spradlin, 187 Ohio App.3d 767, 2010-Ohio-2140, officers found a large bag of

marijuana in a bedroom, under a bed, and in a shopping bag. The officers had

stated they had been looking for additional occupants of a basement, but after lifting

a bed skirt to investigate if anyone was hiding under the bed noticed a shopping bag

– with the open end facing directly towards the searching officer – containing several

gallon-sized freezer bags of marijuana. In that instance, the defendant claimed the

marijuana was found outside the scope of the lawful search. We found no merit in

this argument, because the trial court found the officer’s version of events more

credible than defendants and, according to them, the evidence was found

inadvertently.

{¶ 36} In the case before us, the only evidence provided during the

suppression hearing regarding the circumstances under which the weapons in

question were found was conflicting evidence. The evidence was that the guns

were found during a secondary search which looked in closets and under beds for

the reported captive victim of a robbery. Deputy Hutson testified that his supervisor

informed him that, “when attempting to check under a bed,” he had “found a shotgun

rifle and a couple pistols between the mattress and the box spring.” (Tr. 30).

Detective Reed also testified that a sergeant had located “numerous firearms that

were located in an upstairs bedroom, located in an area where a person could be

hidden.” (Tr. 53).
 14

{¶ 37} From this evidence, the trial court found that the firearms were found

under the bed in the bedroom, while the police officers were looking under the bed

for a possible captive victim:

{¶ 38} "Upstairs, while looking underneath the bed by lifting the mattress and

box springs up from the bed frame, an officer observed firearms."

{¶ 39} "Here, Defendant Cooper [a co-defendant – both of their suppression

motions were heard and decided jointly] argues that the bed in the residence was so

low to the ground that it was unreasonable and impermissible for the police to look

under it. [This argument is rejected.] Once the officer lifted the bed, the firearms

could be seized pursuant to the plain view doctrine. [Citation omitted.]"

{¶ 40} We conclude that the evidence in the record of the suppression

hearing, even when viewed in a light most favorable to the State, is too sparse to

support the trial court’s finding that the firearms were found under a bed. Detective

Reed did testify that firearms were found in an area where a person could be hidden,

but it appears that this was by report, not within his personal knowledge, and the

conclusion that the firearms were found in an area where a person could be hidden

does not affirmatively establish where the firearms were found. The only reasonable

conclusion that we can draw from the sparse evidence at the suppression hearing

was that the firearms were found between the mattress and the box springs.

{¶ 41} We conclude, therefore, that the trial court erred when it found that the

firearms were found under a bed. We cannot determine that this error is harmless.

Since we conclude that the trial court should have found, based on the evidence at

the suppression hearing, that the weapons were found between the mattress and the
 15

box springs, it remained for the trial court to find whether their discovery in that

location was inadvertent. That conclusion is suggested, but not commanded, by

Deputy Hutson’s testimony that the firearms were found in that location “when

attempting to check under a bed.”

{¶ 42} Because we conclude that the trial court committed an error that we

cannot determine to have been harmless, in its decision denying the motion to

suppress the evidence of the firearms, we will reverse the convictions that depend

upon that evidence, and remand this cause for further proceedings on that aspect of

the suppression motion.

{¶ 43} Hunter’s sole assignment of error is sustained in part, and overruled in

part.

III

{¶ 44} Hunter’s sole assignment of error having been sustained in part, and

overruled in part, his convictions and sentence for Possession of Cocaine,

Possession of Heroin, and Possession of Marijuana, without the firearm

specifications, are Affirmed; his firearm specifications and his convictions for Having

Weapons Under a Disability are Reversed; and this cause is Remanded for further

proceedings consistent with this opinion. Should the trial court, on remand, deny the

motion to suppress the evidence of the firearms, it may re-enter a judgment of

conviction and sentence on the Having Weapons Under a Disability offenses and the

firearm specifications to the drug offenses.

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FROELICH, J., concurs.
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DONOVAN, J., concurs in judgment only.

Copies mailed to:

Mathias H. Heck
Johnna M. Shia
Enrique G. Rivera-Cerezo
Hon. Mary L. Wiseman