[Cite as State v. Bethel, 2011-Ohio-3020.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-AP-35
ROBERT BETHEL :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas Case No. 2010-CR-03-
0071
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: June 13, 2011
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
RYAN STYER 0069730 MATTHEW PETIT 0073919
Tuscarawas County Prosecutor 111 Second Street, N.W.
125 E. High Avenue Suite 302
New Philadelphia, Ohio 44663 Canton, Ohio 44702
MICHAEL J. ERNEST 0066627
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Bethel, 2011-Ohio-3020.]
Delaney, J.
{¶1} The State of Ohio appeals the trial court’s entry suppressing marijuana
found in the home of Defendant-Appellee Robert Bethel’s. We reverse.
{¶2} Appellee was indicted by the Tuscarawas County Grand Jury on one
count of Trafficking in Drugs, in violation of R.C. 2925.03(A)(2)(C)(3)(c) and one count
of Possession of Drugs in violation of R.C. 2925.11(A)(c)(3). These charges arose out
of a search of Bethel’s home in the afternoon of September 8, 2009. At approximately
2:00 p.m., Bethel called Community Mental Health (CMH) and was speaking to a
counselor. While Bethel was on the line, another individual from CMH called 911 and
reported to the dispatcher that they had a Robert Bethel on the line who was talking
about weapons and shooting someone. The caller stated he believed Bethel had
weapons in the house but did not know much more. The dispatcher then radioed the
Uhrichsville Police Department and stated to the officer that a Robert Bethel had guns in
the house, was threatening to commit suicide, hurt himself and others, but did not know
if people were in the house. The dispatcher also called medics and informed them the
officers would clear the residence before medics responded.
{¶3} Officer Jeremy Shaver of the Uhrichsville Police Department responded to
the scene along with Officer Sean Smith in order to determine the well being of Bethel
as well as any others who may be in the residence. As they approached the residence,
Bethel exited the home, on the phone. At that time, Officer Smith secured Bethel and
frisked him for weapons. The officers asked Bethel if there was anyone else in the
residence and Bethel said no.
Tuscarawas County, Case No. 10-AP-35 3
{¶4} Officer Shaver, along with Sergeant Todd Beeman from the Village of
Dennison who was called to assist the Uhrichsville police, then entered the home and
conducted a protective sweep through the residence to determine whether there were
any other people in the residence. Officer Shaver also stated that Appellee informed
them that there was a dog in the residence. The dog was barking loudly when the
officers entered the home.
{¶5} When Officer Shaver walked into the home, the first thing he observed
was a coffee table and an end table on which the officer observed marijuana that
appeared to be packaged for sale along with other drug paraphernalia. Officer Shaver
stated that there were baggies with what appeared to be marijuana in them and plastic
medicine bottles with “roaches” in them.
{¶6} Officer Shaver continued his protective sweep of the home and did not
locate another person in the residence, but the officers did locate the dog which they
restrained. They then had Bethel walk back into the house to show them where he kept
the house keys so they could secure the residence while Bethel was transported to jail
so that personnel from the CMH could meet with him and assess him.
{¶7} Sergeant Beeman was dispatched on a call of a “homicidal/suicidal” male.
He went to Bethel’s home and met Officer Shaver there. He went through the house
and observed the same drugs and paraphernalia on the table. Beeman testified that he
did not touch anything inside the residence. He stated that he was also looking for
other people in the residence who may be in need of assistance or hurt.
Tuscarawas County, Case No. 10-AP-35 4
{¶8} Officer Smith stated that according to the dispatcher’s information, no one
was aware if there were any other people inside the residence. He did not enter the
residence, but stayed outside with Bethel.
{¶9} Appellee filed a motion to suppress, arguing that there were not exigent
circumstances supporting a warrantless search of his residence. The trial court ruled in
Appellee’s favor, finding that the warrantless search of Appellee’s residence was not
based on sufficient exigent circumstances allowing the search, pursuant to United
States v. Barone (1964), 33 F.2d 543,545; Mincey v. Arizona (1978), 437 U.S. 385,
State v. Burgess (Nov. 4, 1999), 5th Dist. No. 99-CA-0035.
{¶10} The State of Ohio appeals and raises one Assignment of Error:
{¶11} “I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S
MOTION TO SUPPRESS EVIDENCE.”
I.
{¶12} In its sole assignment of error, Appellant, State of Ohio, asserts that the
trial court erred when it suppressed evidence resulting from the defendant’s encounter
with a law enforcement officer outside of his home that resulted in the discovery of
illegal drugs inside his residence.
{¶13} Appellate review of a trial court’s decision to grant a motion to suppress
involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328,
713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of
fact and, as such, is in the best position to resolve questions of fact and to evaluate
witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A
reviewing court is bound to accept the trial court’s findings of fact if they are supported
Tuscarawas County, Case No. 10-AP-35 5
by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d 142, 675
N.E.2d 1268. Accepting these facts as true, the appellate court must independently
determine as a matter of law, without deference to the trial court’s conclusion, whether
the trial court’s decision meets the applicable legal standard. State v. Williams (1993),
86 Ohio App.3d 37, 619 N.E.2d 1141.
{¶14} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See State v.
Fanning (1982), 1 Ohio St.3d 19, 1 Ohio B. 57, 437 N.E.2d 583; and State v. Klein
(1991), 73 Ohio App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that
the trial court failed to apply the appropriate test or correct law to the findings of fact. In
that case, an appellate court can reverse the trial court for committing an error of law.
See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an
appellant may argue the trial court has incorrectly decided the ultimate or final issues
raised in a motion to suppress. When reviewing this type of claim, an appellate court
must independently determine, without deference to the trial court’s conclusion, whether
the facts meet the appropriate legal standard in any given case. State v. Curry (1994),
95 Ohio App.3d 623, 620 N.E.2d 906.
{¶15} The Fourth Amendment of the Constitution of the United States
guarantees each citizen a right to be free from unreasonable governmental intrusions.
Specifically, it states:
Tuscarawas County, Case No. 10-AP-35 6
{¶16} “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.”
{¶17} “The Fourth Amendment's prohibition against unreasonable searches and
seizures has always been interpreted to prevent a search that is not limited to the
particularly described ‘place to be searched, and the persons or things to be seized,’
U.S. Const., Amend. IV, even if the search is made pursuant to a warrant and based
upon probable cause.” Florida v. Royer (1983), 460 U.S. 491, 499, 103 S.Ct. 1319.
{¶18} The predicate for permitting seizures on suspicion short of probable cause
“is that law enforcement interests warrant a limited intrusion on the personal security of
the suspect. The scope of the intrusion permitted will vary to some extent with the
particular facts and circumstances of each case. This much, however, is clear: an
investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop. Similarly, the investigative methods employed should
be the least intrusive means reasonably available to verify or dispel the officer's
suspicion in a short period of time.” Id., at 500, citing, e.g., United States v. Brignoni-
Ponce, 422 U.S., at 881-882, 95 S.Ct., at 2580-2581; Adams v. Williams, 407 U.S., at
146, 92 S.Ct., at 1923.
{¶19} It is the State's burden to demonstrate that the seizure it seeks to justify
was sufficiently limited in scope and duration to satisfy the conditions of an investigative
seizure.
Tuscarawas County, Case No. 10-AP-35 7
{¶20} The permissibility of certain law enforcement practices is judged by
balancing the intrusion on the individual’s Fourth Amendment interests against the
promotion of legitimate government interests. See Delaware v. Proust (1979), 440 U.S.
648, 653-654, 99 S.Ct. 1391, 59 L.Ed.2d 660. Thus the question becomes whether the
State’s interest in sweeping a residence upon responding to a dispatch for possible
suicide and possible weapons is sufficient to warrant this intrusion and whether the
search policy in question is “reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry v. Ohio (1968), 392 U.S. 1, 20, 88
S.Ct. 1868, 20 L.Ed.2d 889.
{¶21} We find that the instant search was justified when tested by both criteria
from Terry. The government has a legitimate interest in conducting a search of a
residence when they are called to that residence as a result of the occupant calling a
mental health hotline and claiming that he is suicidal and has access to weapons, and
that such an interest is more than sufficient to justify this search.
{¶22} An exception to the warrant requirement of the Fourth Amendment
involves exigent circumstances. Exigent circumstances is synonymous with an
emergency, whether it be actual or ongoing. Mincey v. Arizona (1978), 437 U.S. 385, 98
S.Ct. 2408, 57 L.Ed.2d 290. In State v. Hyde (1971), 26 Ohio App.2d 32, 34, 268
N.E.2d 820, the Ninth District Court of Appeals explained the following:
{¶23} ‘The right of the police to enter and investigate in an emergency without
accompanying intent to either search or arrest is inherent in the very nature of their
duties as peace officers. * * *.’ United States v. Barone (C.C.A.2), 330 F.2d 543, at 545.
Tuscarawas County, Case No. 10-AP-35 8
{¶24} “Breaking into a home by force is not illegal if it is reasonable in the
circumstances.’ ‘The need to protect or preserve life or avoid serious injury is
justification for what would be otherwise illegal absent exigency or emergency.” State v.
Burgess (Nov. 4, 1999), 5th Dist No. 99-CA-0035, quoting Wayne v. United States
(D.C.Cir.), 318 F.2d 205, at 212. See also, State v. Oliver, 91 Ohio App.3d 607, 632
N.E.2d 1382.
{¶25} In the treatise, “Ohio Arrest, Search and Seizure” (1999 Ed.), Professor
Lewis Katz discussed the scope of an emergency search at 185-286, Section 10.5, as
follows:
{¶26} “Exigent circumstances create justification for limited warrantless
searches. The duration of the intrusion and the scope of the search are governed by the
constitutional command of reasonableness, which will be evaluated in terms of the
emergency. Once the emergency conditions have been alleviated, further intrusion must
be sanctioned by a warrant. Any other interpretation of the emergency exception would
create another general exception that would swallow the Fourth Amendment principle
that warrantless intrusions are per se unreasonable. Furthermore, searches that extend
beyond the scope of the actual emergency lead to an inference that the emergency is
serving as a pretext to conduct a warrantless search.” (Footnotes omitted.)
{¶27} The trial court did not make specific findings of fact. Consequently, we
can afford no deference to the trial court’s findings of fact because there were none.
But the trial court indicated that it had reviewed the motion, the testimony and the
arguments of counsel. We shall, therefore, directly examine the record to determine
whether there is sufficient evidence of exigent circumstances.
Tuscarawas County, Case No. 10-AP-35 9
{¶28} In this case, Officer Shaver testified that upon walking into the house
looking for any additional occupants, he observed on the table right as he walked in, the
drugs and paraphernalia. He continued to walk through the house for other people
given the dispatch that Appellee was suicidal or homicidal and had access to weapons
in the house.
{¶29} Because the drugs and paraphernalia were observed during the walk
through of the emergency search for other occupants, we find the discovery of the drugs
in plain view was before the emergency condition was alleviated. The discovery of the
drugs was contemporaneous with the emergency search. See State v. Burgess, supra.
{¶30} We have reviewed the transcript of the suppression hearing, including the
dispatch records, and we are satisfied the police officers acted reasonably based upon
the information in their possession. The officers had reasonable cause to believe that
Bethel was considering suicide and harming others, and the entrance into the home
was necessary to protect others possibly in the residence, was reasonably related to
those circumstances and necessary to verify Bethel’s reports to CMH. Although there
was no indication upon arrival that Bethel had actually harmed himself or others, the
officers acted within their discretion that entry into the home was necessary to secure
the safety of themselves, the paramedics, and other people possibly inside the home.
{¶31} While we realize that suicide is not a crime, Bethel could have been
considered dangerous because police had been told he had weapons and wished to
harm others. Police have a right and duty to respond to emergency situations. Thacker
v. City of Columbus, 328 F.3d 244, 253 (6th Cir. 2003). Entering the home dispelled the
uncertainty as to whether anyone was inside the home that might be in danger or pose
Tuscarawas County, Case No. 10-AP-35 10
a danger to police officers or medics. While this case presents a close question, we find
exigent circumstances exist here.
{¶32} For the foregoing reasons, we reverse the decision of the Tuscarawas
County Court of Common Pleas and remand for proceedings consistent with this
Opinion.
By: Delaney, J.
Hoffman, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
[Cite as State v. Bethel, 2011-Ohio-3020.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
ROBERT BETHEL :
:
Defendant-Appellee : Case No. 10-AP-35
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas is reversed and remanded
for proceedings consistent with this Opinion. Costs assessed to Appellee.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JULIE A. EDWARDS
State v. Bethel
Combined Opinion