This appeal is brought by defendant-appellant, David Kesler, from the judgment of the Court of Common Pleas of Shelby County, overruling, in part, appellant's motion to suppress evidence.
At approximately 8:30 p.m. on May 3, 1990, Deputy Jed Fullenkamp and Deputy Mark Henman responded to a disturbance call at an apartment complex in Shelby County. At the direction of a neighbor, the two officers approached appellant's apartment to investigate. As Deputy Henman came up the front steps to the doorway, only a screen door stood between the deputies and appellant. Appellant was sitting on a couch about fifteen feet from the door with a dish on the top of his knees and his hands on top of the dish. Appellant then noticed the officers and put a substance in a coffee table drawer. Deputy Henman said that what he saw was "[w]hat I believed was marijuana." Deputies Henman and Fullenkamp immediately entered the apartment to arrest appellant for possession of marijuana.
Once inside, the officers saw two guns with shells on a chair near appellant. Deputy Henman removed the guns to the kitchen, a safe distance from appellant's reach. After refusing to move from the couch, appellant was forcibly made to stand for a weapons patdown. A scuffle ensued, and both appellant and his wife were subsequently arrested and removed from the apartment.
During the arrest, additional police officers arrived and commenced a thorough search of the remaining rooms in the apartment. Police seized the marijuana from the coffee table drawer and the guns from the kitchen. While searching the bedrooms, police found other items, including evidence of drug cultivation and a police radio.
Appellant was indicted for trafficking in marijuana, in violation of R.C. 2925.03(A)(3), receiving stolen property, in violation of R.C. 2913.51, and having weapons while under a disability, in violation of R.C. 2923.13. Each count constituted a felony of the fourth degree.
On September 14, 1990, appellant filed a motion to suppress all evidence gathered as a result of the May arrest. Appellant argued that the police lacked probable cause to enter the apartment and unlawfully arrested appellant in violation of theFourth and Fourteenth Amendment of the United States Constitution and Section 14, Article I of the Ohio Constitution.
The trial judge sustained the motion to suppress evidence gathered from the bedrooms but overruled the motion as to the marijuana and guns found in plain *Page 100 view near appellant. Subsequently, appellant pled no contest to the amended charge of weapons under disability, pursuant to R.C.2923.13, and was sentenced to one year of imprisonment and a $500 fine.
Appellant now appeals the trial court's judgment, asserting one assignment of error:
ASSIGNMENT OF ERROR "The trial court erred, to the substantial prejudice of the defendant-appellant, in overruling his motion to suppress, thus violating his rights under the United States and Ohio Constitutions."
The success of appellant's suppression argument rests on the determination that the initial entrance into appellant's home was unlawful. If the initial entrance was unlawful, the evidence seized as the fruits of the illegal search must be suppressed. Therefore, the issue to be determined is whether Deputies Fullenkamp and Henman could properly enter appellant's apartment without a warrant.
The Fourth Amendment states:
"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."
In Payton v. New York (1980), 445 U.S. 573, 100 S. Ct. 1371,63 L. Ed. 2d 639, the United States Supreme Court held that absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. Additionally, in Horton v. California (1990), 496 U.S. 128, 136,110 S. Ct. 2301, 2307, 110 L. Ed. 2d 112, 122, the Supreme Court pointed out that an officer's discovery of an object in plain view does not exempt the officer from complying with the Fourth Amendment. The officer must have a "lawful right of access" to the discovered object. Id. at 137, 110 S.Ct. at 2307, 110 L.Ed.2d at 123. The object, therefore, must be seized pursuant to a warrant or the seizure must be under circumstances that excuse the failure to get the warrant. Id. at 138, 110 S.Ct. at 2308,110 L.Ed.2d at 123. Moreover, the burden is upon those seeking to justify a nonconsensual search without a warrant to show that it is properly done. McDonald v. United States (1948), 335 U.S. 451,69 S. Ct. 191, 93 L. Ed. 153.
With specific regard to the government's interest in making an arrest for a minor offense, the presumption that a warrantless entry of a home is unreasonable *Page 101 "is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Welsh v.Wisconsin (1984), 466 U.S. 740, 750, 104 S. Ct. 2091, 2098,80 L. Ed. 2d 732, 743. In that case, the officers entered a home without a warrant to arrest an individual for drunk driving.Id. at 743, 104 S.Ct. at 2094, 80 L.Ed.2d at 739.
More recently, the First District Court of Appeals, inState v. Robinson (1995), 103 Ohio App. 3d 490, 659 N.E.2d 1292, upheld the trial court's suppression of evidence seized by officers upon a warrantless entry into the defendant's home. The police had been investigating complaints regarding activity at the defendant's residence. Two officers went to the residence, and while in the hallway to his apartment, they noticed the odor of burning marijuana. One of the officers knocked at the door and the defendant opened the door. When the defendant saw the officers, he attempted to close it, and a struggle ensued. During this struggle, the officers heard the defendant shout repeatedly, "Get rid of the shit * * *. Police," and saw another individual running from room to room. Id. at 493,659 N.E.2d at 1294. Officers eventually forced the door open and saw a package of marijuana in the defendant's shoe, which had come off during the struggle. The court found that the officers did not violate the Fourth Amendment in attaining their initial vantage point. However, the court held that the progress into the home was unjustified because R.C. 2935.26 limits the power of a law enforcement officer to make an arrest for a minor misdemeanor offense, authorizing only the issuance of a citation. The court also found that any exigent circumstance premised upon the imminent destruction of evidence of a minor misdemeanor, drug abuse offense was insufficient to overcome the presumption of unreasonableness that attached to the warrantless entry into the home.
Similarly, in State v. Jenkins (1995), 104 Ohio App. 3d 265,661 N.E.2d 806, an appellate court ruled that the trial court erred in overruling defendant's motion to suppress evidence gained in a warrantless entry and search of defendant's home. Officers had received information that defendant was selling marijuana, and the caller stated that he had smelled the odor of burning marijuana coming from defendant's apartment. The caller also gave the police the license numbers of people currently in the apartment. Upon investigation, the police discovered that the numbers were registered to individuals known to have been convicted of drug offenses. The caller also indicated that he heard one of the occupants state an intention to "weigh this up." Id. at 267, 661 N.E.2d at 807.
As a result, the police in Jenkins went to the apartment to talk to defendant concerning the allegations and knocked on the door. Defendant peeked through a window and spoke to the officer, who identified himself and asked if he could enter. Defendant refused entry. After observing defendant take some steps, the *Page 102 officer sensed that defendant was running from the door to destroy drugs. Thus, the officer kicked in the door and found defendant flushing marijuana down the toilet. The court stated that it was not until after the officer knocked on the door and was refused entry that he suspected defendant was running to destroy evidence and that exigent circumstances, if any, arose. Consequently, the court found that the circumstances were the direct result of the officer's actions. The court, therefore, held that the warrantless entry of a home by the law enforcement officers, even based upon probable cause, could not be justified if the exigent circumstances were of the officers' own making.
In the instant case, at approximately 8:30 p.m. on May 3, 1990, the officers were dispatched on a call concerning a disturbance at South Vandemark apartments. Deputy Fullenkamp and Deputy Henman responded and attempted to find the correct address; however, they ended up at an address different from the one to which they were dispatched. They were eventually directed towards appellant's apartment, where they were told there had been an earlier disturbance. No disturbance was apparent at that time.
As they arrived at appellant's apartment, the main solid door was open and only a screen door stood between the deputies and appellant. The deputies saw appellant sitting on the couch in his living room with a dish on the top of his knees and his hands on top of the dish. Deputy Fullenkamp stated that he was unable to see anything on the plate. Deputy Henman said that what he saw was "[w]hat I believed was marijuana." He did not state how he was able to identify marijuana looking fifteen feet away through appellant's screen door. He testified that he could identify marijuana but "can't tell you much about grams" and didn't know what constituted bulk amount. We do not know how a neutral and detached judicial officer would have ruled on the probable cause issue based upon these circumstances. More than likely, from fifteen feet away, the officer had only a reasonable suspicion, amounting to less than probable cause, to believe the substance was marijuana.
Furthermore, there was testimony that none of the substance identified as marijuana was in the process of being destroyed and there was no reason why the officers could not have secured the premises and obtained a search warrant to search at a later time. Deputy Henman testified, when asked why he didn't first knock on the door and make further inquiry:
"I believe at that time, sir, that there was a plain view violation at that time and that's the reason I based my entry on."
In other words, the officers, believing what they saw to be marijuana, without giving any further thought to the requirements of the Fourth Amendment and without knocking or announcing, grabbed the door and walked inside appellant's *Page 103 apartment. There was no pending danger of injury to anyone, there was no immediate danger of destruction of contraband, and there was no evidence of flight. Thus, there was no compelling reason to justify the failure of law enforcement officers to place the matter before a detached and neutral judicial officer who could properly assess whether the officers had probable cause to obtain a valid warrant prior to entering appellant's home and searching and arresting him for what amounted to a minor misdemeanor offense.
Thus, after carefully weighing the critical safeguard of individual privacy set forth in the Fourth Amendment against the need for effective law enforcement tools, there is no question in the instant case that the constitutional privacy considerations must prevail. In other words, we do not think that the facts of this case are sufficient to justify the warrantless intrusion into appellant's home.
We find, therefore, that the assignment of error is well taken and the motion to suppress should have been granted. The judgment of conviction is reversed, and the cause is remanded for further proceedings in accordance with this opinion.
Judgment reversedand cause remanded.
THOMAS F. BRYANT, J., concurs.
EVANS, J., dissents.