State v. Davis

[Cite as State v. Davis, 2022-Ohio-1875.]

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

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29243
:
v. : Trial Court Case No. 2021-CR-662
:
DARRYLL B. DAVIS, II : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 3rd day of June, 2022.

...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

ANGELINA N. JACKSON, Atty. Reg. No. 0077937, Assistant Public Defender, 117 South
Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant

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

WELBAUM, J.
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{¶ 1} Defendant-appellant, Darryll B. Davis, II, appeals from his conviction in the

Montgomery County Court of Common Pleas after he pled no contest to one count of

having weapons while under disability. In support of his appeal, Davis argues that the

trial court erred by failing to suppress evidence and statements that were obtained by

police officers who entered his hotel room and asked if he had any weapons. For the

reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On March 4, 2021, a Montgomery County grand jury returned an indictment

charging Davis with one count of having weapons while under disability in violation of

R.C. 2923.13(A)(2), a felony of the third degree. The charge arose after three Huber

Heights police officers entered Davis’s hotel room to execute a warrant for Davis’s arrest

for an aggravated burglary in Columbus, Ohio. After entering the hotel room, one of the

officers asked Davis if he had a gun, and Davis, who had a prior felony conviction of

violence, responded affirmatively. The same officer then asked Davis where the gun

was located, and Davis advised that the gun was in the drawer of a nearby nightstand.

The officers thereafter recovered the gun from the nightstand and arrested Davis on the

warrant for aggravated burglary.

{¶ 3} Following his arrest, Davis was indicted for the aforementioned charge of

having weapons while under disability. Davis pled not guilty to the charge and filed a

motion to suppress all evidence and statements that were obtained as a result of the
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officers questioning him and searching his hotel room. On April 30, 2021, the trial court

held a hearing on Davis’s motion to suppress. Officer Scott Short of the Huber Heights

Police Department was the only witness to testify at the hearing. The only other

evidence admitted at the hearing was video footage from a body camera worn by Officer

Short and a copy of Officer Short’s Miranda card. See State’s Exhibit Nos. 1 and 2. The

following is a summary of the testimony and evidence presented at the hearing.

{¶ 4} On February 25, 2021, Officer Short was conducting an unrelated

investigation at a hotel known as the Baymont Inn in Huber Heights, Ohio. As part of

that investigation, Officer Short was running license plates in the hotel’s parking lot. In

doing so, Officer Short discovered that the registered owner of a silver Chevy SUV—

Davis—had a warrant for his arrest out of Columbus, Ohio, for aggravated burglary.

After discovering the warrant, Officer Short called for backup assistance. Officer Short

then entered the hotel, confirmed that Davis was a registered guest, and obtained Davis’s

hotel room number. Once he had this information, Officer Short waited for the backup

officers to arrive at the hotel.

{¶ 5} Officers Champ and Diltz of the Huber Heights Police Department arrived at

the hotel a few minutes later. Officer Diltz arrived with an additional rifle for safety

purposes. When Officer Short saw the rifle, he asked Officer Diltz if he had received

additional information about the warrant from someone in Columbus. Officer Diltz

responded affirmatively and advised that his contact in Columbus had told him that the

warrant was issued on January 21, 2021, for a first-degree felony burglary that involved

either physical harm or a firearm.
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{¶ 6} After discussing the warrant, the three officers made their way to Davis’s

hotel room. Once there, Officer Short told the other officers: “Remember, we need to

clear the bathroom.” Officer Short then knocked on the door and asked the occupant if

he was “Darryll.” Davis did not open the door but confirmed his identity as Darryll.

Officer Short then said: “Hey, it’s Huber Heights Police can you open up the door?” To

this, Davis said: “Can you come to the peep hole so I can see who you are?” Officer

Short responded: “I’m not going to stand in front of the doorway, you’ll have to trust us

that it’s Huber Heights Police.” Davis then said: “Alright give me a second to get some

clothes on.” Officer Short, however, told Davis: “Just go ahead and open the door we’ll

get that taken care of later.” Davis then opened the door wearing only a pair of boxer or

gym shorts.

{¶ 7} When Davis opened the door, the body camera video shows that he was

standing about three feet inside the hotel room, close to the end of the open door. Davis

was unclothed but actively pulling up his shorts. Officer Short asked to see Davis’s

hands and asked if anyone else was in the room. Davis said no. Officer Short then

asked Davis to “step on back” and to “have a seat” and informed Davis that he would

explain why he and the other officers were there. After Davis sat on the bed, Officer

Short said: “We just want to make sure no one else is in the room, OK? That’s all.”

{¶ 8} While Davis was sitting on the bed, Officer Short proceeded to explain why

the officers were there. Specifically, Officer Short told Davis that he had been running

license plates and that he had come across a warrant for Davis’s arrest. Davis said that

he knew he had a warrant and proceeded to explain his situation to the officers. As Davis
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was speaking, Officer Short advised dispatch on his radio that he was in the room with

Davis and asked for confirmation of the arrest warrant.

{¶ 9} Officer Short explained to Davis that once the arrest warrant was confirmed,

he would be taken to jail. As a result, Officer Short asked Davis if there was anyone

Davis could call that lived near the hotel so that his belongings could be retrieved from

the hotel room. In response, Davis said that his sister lived nearby and that he could call

her. Davis then stood up from the bed and said: “You all came up here because you ran

my tags?” Officer Short responded affirmatively and once again explained that he was

running license plates when he discovered that Davis had a warrant for aggravated

burglary.

{¶ 10} During that conversation, Davis, who was still standing, reached for his cell

phone on the bed. Officer Short then said: “If you would, I don’t care if you use your

phone, but if you don’t mind having a seat for me. You don’t have anything any guns

any knives anything around here?” Davis did not immediately respond to Officer Short’s

question. Officer Short then said: “Darryll? You got a gun nearby?” Davis responded:

“Yup.”

{¶ 11} Following Davis’s response, Officer Short ordered Davis to turn around and

Officer Champ proceeded to handcuff Davis. While Davis was being handcuffed, Officer

Short asked Davis where the gun was located. Davis responded and indicated that the

gun was in the nightstand drawer. Officer Short then retrieved the gun from the

nightstand drawer, removed the gun’s magazine, and ejected a single round. Officer

Diltz then asked Davis if he had ever been convicted of a felony of violence and Davis
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responded affirmatively.

{¶ 12} After securing Davis’s gun, Officer Short grabbed a pair of Davis’s pants

from a nearby chair and searched the pockets before helping Davis put on the pants.

Officer Champ then buttoned Davis’s pants while Officer Short grabbed a shirt for Davis

to wear. Officer Short inspected the shirt and then put the shirt over Davis’s head and

shoulders. After Davis was dressed, Officer Short permitted Davis to use his cell phone

to call his sister and his children while the officers awaited confirmation of the arrest

warrant.

{¶ 13} A few minutes later, Officer Short notified Davis that the arrest warrant had

been confirmed and that Davis was being arrested on the warrant. Officer Short then

read Davis his Miranda rights, which Davis indicated he understood. Once Davis

confirmed that he understood his Miranda rights, Officer Short asked Davis if he was

willing to speak with him about the gun found in the nightstand. Davis indicated that he

was willing to talk about the gun and stated that his friend had left the gun in his vehicle

many years ago after being arrested at a bar. Davis explained that he had simply kept

the gun and brought it with him to Dayton. Davis also told Officer Short that he had been

convicted for murder in Georgia 15 years ago.

{¶ 14} Following that conversation, Officer Short let Davis contact another family

member on his cell phone. After Davis was finished talking on the phone, Officer Champ

helped Davis put on his shoes. Davis’s sister arrived shortly thereafter to collect Davis’s

belongings. Officer Short spoke with Davis’s sister and obtained her identification

information while Officer Champ placed Davis in a police cruiser so that Davis could be
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transported to jail.

{¶ 15} After the foregoing information was presented at the suppression hearing,

the trial court ordered the parties to file simultaneous briefs that addressed the issues

presented by the evidence. Davis filed a brief arguing two specific issues in support of

his motion to suppress. Those issues where: (1) that the officers’ entry into his hotel

room was an unlawful, warrantless entry because the officers had not confirmed the arrest

warrant before entering; and (2) that the officers conducted a custodial interrogation in

violation of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

for which the public safety exception did not apply.

{¶ 16} On July 15, 2021, the trial court announced that it was overruling Davis’s

motion to suppress and stated its reasoning for that decision on the record. The trial

court thereafter issued a written decision and entry overruling Davis’s motion. In

reaching its decision, the trial court concluded that even though the arrest warrant had

not been confirmed by the Columbus Police Department prior to the officers entering

Davis’s hotel room, the officers had taken “necessary precautions” to ensure that there

was an active arrest warrant tied to Davis. The trial court held that under Payton v. New

York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the officers were

constitutionally permitted to enter Davis’s hotel room in order to execute the arrest

warrant. The trial court also concluded that the public safety exception to the Miranda

rule announced in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550

(1984), applied to Officer Short’s pre-Miranda questioning about whether Davis had a

weapon nearby and the location of the weapon.
 -8-

{¶ 17} After the trial court overruled Davis’s motion to suppress, Davis pled no

contest to having weapons while under disability. The trial court accepted Davis’s no

contest plea and found him guilty as charged. The trial court then sentenced Davis to

community control sanctions for a period not to exceed five years. Davis now appeals

from his conviction, raising a single assignment of error for review.

Assignment of Error

{¶ 18} Under his sole assignment of error, Davis contends that the trial court erred

by overruling his motion to suppress. Specifically, Davis argues that the trial court should

have suppressed the gun and the statements made during the hotel room encounter

because the arresting officers: (1) entered the hotel room without knowing whether there

was a valid warrant for his arrest; (2) conducted a custodial interrogation in the hotel room

without advising him of his Miranda rights; and (3) conducted a warrantless search of the

hotel room nightstand. We will address each of these claims separately below.

Standard of Review

{¶ 19} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the

trial court’s findings of fact if they are supported by competent, credible evidence. * * *
 -9-

Accepting these facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.” (Citations omitted.) Id.

Entry into Hotel Room

{¶ 20} For his first argument, Davis contends that the officers’ entry into his hotel

room violated his Fourth Amendment rights because the officers did not know whether

there was a valid warrant for his arrest at the time they entered his room. Davis claims

that the officers did not know there was a valid warrant because they had not yet

confirmed the warrant with the Columbus Police Department. According to Davis, this

necessitated the suppression of the gun and the statements made in the hotel room. We

disagree.

{¶ 21} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). “It is a ‘basic principle of Fourth Amendment law’

that searches and seizures inside a home without a warrant are presumptively

unreasonable.” Payton, 445 U.S. 573 at 586, 100 S.Ct. 1371, 63 L.Ed.2d 639, quoting

Coolidge v. New Hampshire, 403 U.S. 443, 477-478, 91 S.Ct. 2022, 29 L.Ed.2d 564

(1971). Therefore, “[t]he Fourth Amendment generally prohibits police from making a

warrantless, nonconsensual entry into a suspect’s home to make a felony arrest.” State

v. Cooks, 2d Dist. Clark No. 2016-CA-40, 2017-Ohio-218, ¶ 10, citing Payton at 588-589.

{¶ 22} “[A] person subject to an arrest warrant[, however,] does not enjoy the full
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panoply of privacy rights that other individuals enjoy.” State v. Gardner, 135 Ohio St.3d

99, 2012-Ohio-5683, 984 N.E.2d 1025, ¶ 22. “ ‘[A]n arrest warrant founded on probable

cause implicitly carries with it the limited authority to enter a dwelling in which the suspect

lives when there is reason to believe the suspect is within.’ ” State v. Martin, 151 Ohio

St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 78, quoting Payton at 603. Therefore,

“ ‘an arrest warrant is sufficient to enter a person’s residence to effectuate the warrant if

the police have reason to believe that the suspect lives in the home and is in fact at the

home at the time the arrest warrant is executed.’ ” Cooks at ¶ 10, quoting State v.

Zerucha, 11th Dist. Ashtabula No. 2015-A-0031, 2016-Ohio-1300, ¶ 13. (Other citation

omitted.) In applying this principle it is “presuppose[d] that the police knew that there

was a warrant for the individual’s arrest when entering a home to make an arrest.”

Gardner at ¶ 22.

{¶ 23} “ ‘The protections against warrantless intrusions into the home * * * apply

with equal force to a properly rented hotel room during the rental period.’ ” State v.

Chavez, 2d Dist. Montgomery No. 27840, 2018-Ohio-4351, ¶ 21, quoting United States

v. Junkman, N.D. Iowa No. CR96-4033, 1997 WL 33559171, *3 (June 24, 1997), citing

United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.1986) and United States v. Wicks,

995 F.2d 964, 969 (10th Cir.1993). Accord Hoffa v. United States, 385 U.S. 293, 301,

87 S.Ct. 408, 17 L.Ed.2d 374 (1966), citing United States v. Jeffers, 342 U.S. 48, 72 S.Ct.

93, 96 L.Ed. 59 (1951) (“[a] hotel room can clearly be the object of Fourth Amendment

protection as much as a home or an office”). Therefore, if the person named in the arrest

warrant is a tenant taking up residence in the hotel room, officers are permitted to enter
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the room to effectuate the arrest warrant if they have a reasonable belief that the person

named in the arrest warrant is a tenant and present inside the room. Chavez at ¶ 23,

citing Payton at 603.

{¶ 24} Based on the testimony and evidence presented at the suppression

hearing, the trial court found that there was an active warrant for Davis’s arrest with

respect to an aggravated burglary in Columbus, Ohio. The trial court also found that the

arresting officers were aware of the warrant before they entered the hotel room to arrest

Davis. Although the trial court found that the officers did not confirm the warrant with the

Columbus Police Department before entering Davis’s hotel room, the trial court

determined that the officers had taken “necessary precautions” to ensure that there was

an arrest warrant tied to Davis before they entered the room. The trial court further found

that the officers verified with the hotel clerk that Davis was the individual who had rented

the hotel room in question, and that the officers confirmed that Davis was inside the hotel

room by knocking on the door and having Davis identify himself. Based on these

findings, the trial court held that the officers’ entry into the hotel room was constitutionally

permissible.

{¶ 25} Upon review, we find that the trial court’s factual findings were supported by

competent, credible evidence. The testimony of Officer Short and the body camera

video footage admitted into evidence established that Officer Short ran Davis’s license

plate and discovered that Davis had an active warrant for his arrest out of Columbus.

The body camera video footage also established that Officer Short had a conversation

with the other two responding officers—Officers Champ and Diltz—about Davis’s arrest
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warrant before they contacted Davis in his hotel room. During that conversation, Officer

Short asked if Officer Diltz had contacted “somebody from Columbus.” 1 Officer Diltz

responded affirmatively and indicated that the contact person from Columbus had advised

him that a first-degree felony arrest warrant for a burglary had been issued for Davis just

one month earlier on January 21, 2021, and that the burglary in question involved either

physical harm or a firearm. Although none of the officers expressly described Officer

Diltz’s contact person as a law enforcement officer, the trial court nevertheless made a

finding to that effect. Given the level of detail the contact person provided Officer Diltz

about the warrant, we find that said finding was supported by competent, credible

evidence.

{¶ 26} The trial court’s finding that the warrant was not confirmed by the Columbus

Police Department before the officers entered Davis’s hotel room was also supported by

competent, credible evidence. However, under the specific circumstances of this case,

we do not find that the lack of confirmation amounted to a Fourth Amendment violation,

because the officers had already determined that an active arrest warrant existed when

Officer Short ran Davis’s license plate and when Officer Diltz spoke to a Columbus officer

regarding the warrant. Moreover, during his testimony, Officer Short explained that “we

have to make sure we speak with the individual and have them secured before we confirm

a warrant.” Suppression Trans. (Apr. 30, 2021), p. 20. Therefore, the fact that the

officers had not yet confirmed the warrant with the Columbus Police Department did not

1 Officer Short also testified that “Officer Diltz had made a phone call to an acquaintance
of his who worked for Columbus” and that said acquaintance “had some familiarity with
the case[.]” Suppression Trans. (Apr. 30, 2021), p. 11.
 -13-

mean that the officers were unaware of a valid arrest warrant at the time they entered

Davis’s hotel room. Davis’s claim otherwise lacks merit.

{¶ 27} As an alternative argument, Davis contends that if the officers were indeed

aware of a valid arrest warrant, the officers should have arrested him on the warrant

immediately when he answered the door to his hotel room as opposed to coming inside

the room and waiting to have the warrant confirmed. According to Davis, the officers’

entry into his hotel room was unnecessary and unjustified.

{¶ 28} In support of his argument, Davis cites to this court’s decision in State v.

Cooper, 2d Dist. Montgomery No. 20845, 2005-Ohio-5781. In Cooper, a detective and

nine other law enforcement officers arrived at Cooper’s residence with the intent to arrest

Cooper on an outstanding warrant for driving under the influence and to question him

about a department store robbery. Id. at ¶ 4. The following chain of events occurred

during Cooper’s arrest:

The officers surrounded [Cooper’s] house, and [the detective]

knocked on the front door with his gun drawn. When Cooper opened the

door appearing sleepy and shirtless, [the detective] identified himself as a

police detective. He then explained that he had a warrant for Cooper’s

arrest and that Cooper also was a suspect in the robbery of an Elder–

Beerman store. Cooper responded by allowing himself to be handcuffed.

When he handcuffed Cooper, [the detective] was standing on the front

porch, and Cooper was standing either on the porch or in the doorway.

After taking Cooper into custody, [the detective] and the other officers put
 -14-

their weapons away and “stepped inside the house.” [The detective] then

placed Cooper on a couch. On a chair across from the couch, [the

detective] observed a blue jacket. It appeared to be the same jacket [the

detective] previously had observed being worn by the perpetrator when

viewing a surveillance videotape of the robbery.

Id.

{¶ 29} Although the detective in Cooper had an arrest warrant, this court held that

the officers’ entry into Cooper’s home violated the Fourth Amendment because “the arrest

was ‘effected’ when [the detective] handcuffed Cooper while standing on the front porch.”

Id. at ¶ 17. In so holding, we found that the detective “never offered any justification for

his warrantless entry into the home after handcuffing Cooper without incident while

standing on the front porch.” Id. at ¶ 16. This court also found that “[n]othing in the

record indicate[d] that [Cooper] subsequently invited the officers into the home or that he

asked to retrieve a shirt prior to be taken to the Dayton Safety Building.” Id. at ¶ 17.

“Instead, [the detective] and the other officers simply ‘stepped into’ the residence

uninvited to talk to Cooper about the Elder-Beerman robbery.” Id.

{¶ 30} In deciding Cooper, this court relied on United States v. Albrektsen, 151

F.3d 951, 953-954 (9th Cir.1998), for the proposition “that officers may not enter a

dwelling to arrest a defendant who is capable of being seized at the door.” Cooper at

¶ 17. In Albrektsen, an officer had an arrest warrant for a defendant who was residing

in a motel room. Albrektsen at 952. The officer knocked on the defendant’s motel-room

door and the defendant answered and immediately admitted his identity to the officer in
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the doorway. Id. Instead of arresting the defendant right then and there, the officer

walked into the defendant’s motel room without permission and asked the defendant if he

could conduct a search. Id. at 952-953. After the defendant consented to the search,

the officer arrested the defendant, searched the motel room, and discovered criminal

evidence therein. Id. at 953.

{¶ 31} Under this set of facts, the Ninth Circuit Court of Appeals determined that

the officer could have arrested the defendant in the doorway and that it was unnecessary

to arrest the defendant inside the motel room. Id. at 953-954. In so holding, the court

stressed that under the United States Supreme Court’s decision in Payton, an arrest

warrant carries a limited authority for officers to enter a dwelling in which the suspect

lives, and that the limited authority applies when there is reason to believe the suspect is

within the dwelling. Id. at 953. Because it was unnecessary for the officer to arrest the

defendant in “the depths of the room” the court in Albrektsen held that entering the motel

room was an invasion of the defendant’s privacy that was not authorized by the

constitution. Id. at 954.

{¶ 32} Based on Cooper and Albrektsen, Davis claims that even if there was a

valid warrant for his arrest, the officers’ entry into his hotel room to execute the warrant

was not constitutionally permissible because the officers could have arrested him in the

hallway when he answered the door. Cooper and Albrektsen, however, are

distinguishable from this case, because unlike in Cooper and Albrektsen, it was

reasonable for the officers to enter Davis’s hotel room.

{¶ 33} “The touchstone of our analysis under the Fourth Amendment is always ‘the
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reasonableness in all the circumstances of the particular governmental invasion of a

citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct.

330, 54 L.Ed.2d 331 (1977), quoting Terry, 392 U.S. 1 at 19, 88 S.Ct. 1868, 20 L.Ed.2d

889. “ ‘The test of reasonableness under the Fourth Amendment is not capable of

precise definition or mechanical application.’ ” State v. Cremeans, 160 Ohio App.3d 1,

2005-Ohio-928, 825 N.E.2d 1124, ¶ 14 (2d Dist.), quoting Bell v. Wolfish, 441 U.S. 520,

559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “ ‘In each case it requires a balancing of the

need for the particular search against the invasion of personal rights that the search

entails.’ ” Id. “ ‘Courts must consider the scope of the particular intrusion, the manner

in which it is conducted, the justification for initiating it, and the place in which it is

conducted.’ ” Id. “An action is ‘reasonable’ under the Fourth Amendment, regardless

of an individual officer’s state of mind, “as long as the circumstances, viewed objectively,

justify [the] action.’ ” (Emphasis sic.) Brigham City v. Stuart, 547 U.S. 398, 404, 126

S.Ct. 1943, 164 L.Ed.2d 650 (2006), quoting Scott v. United States, 436 U.S. 128, 138,

98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).

{¶ 34} In Cooper, it was not reasonable for the detective to enter the defendant’s

dwelling because the officer had already executed the arrest warrant by arresting the

defendant on his front porch. In Albrektsen, it was not reasonable for the officer to

conduct the arrest of the defendant inside the defendant’s motel room because there was

simply no reason for the officer to enter the room once the defendant answered the door

and identified himself. In the instant case, however, it was reasonable for the officers to

enter Davis’s hotel room because Davis was only in his shorts at the time he answered
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the door and because the encounter occurred during the winter month of February.

Under these circumstances, even if the officers had done as Davis suggested and

arrested him in the hallway, the officers still would have had to enter the hotel room in

order to check for the presence of other persons and to get some clothes and shoes for

Davis to wear to jail. The body camera video shows that much of the time spent in the

hotel room was dedicated to helping Davis make arrangements with his sister to retrieve

his belongings after the arrest rather than taking actions in furtherance of evidence

collection.

{¶ 35} Taking this into consideration, it was reasonable for the officers to simply

discuss the arrest warrant with Davis inside the hotel room and to arrest him there as

opposed to arresting him closer to the doorway and then moving him to the hallway while

Davis was only partially clothed. Going inside the hotel room also served the additional

purpose of ensuring that no one else was in the room who could have harmed the officers

while they were in the process of arresting Davis.

{¶ 36} In so holding, we note that Officer Short’s order for Davis to open the door

before getting dressed was also reasonable since Davis did not immediately answer the

door and since Davis asked the officers to stand by the peephole, as such conduct

presented a possible safety concern. Getting Davis to open the door as soon as possible

prevented Davis from having time to attempt an escape or to retrieve any kind of weapon

or object that could have harmed the officers. Therefore, the fact that Officer Short

ordered Davis to open the door before getting dressed does not alter our reasonableness

determination.
 -18-

{¶ 37} Although the officers could have arrested Davis earlier and closer to the

doorway, and then could have led Davis to the hallway partially clothed, the decision not

to do so was reasonable for all the aforementioned reasons. Accordingly, we conclude

that the officers’ entry into Davis’s hotel room for purposes of executing his arrest warrant

did not offend constitutional provisions and thus did not warrant the suppression of

Davis’s gun or his statements. Davis’s claim otherwise lacks merit.

Questioning in Hotel Room

{¶ 38} For his second argument, Davis contends that the trial court should have

suppressed the statements he made to the officers regarding his gun and the gun itself

because the officers conducted a custodial interrogation without advising him of his

Miranda rights. Specifically, Davis contends that the trial court erroneously applied the

public safety exception to the Miranda rule. We disagree.

{¶ 39} “The Fifth Amendment to the United States Constitution provides that no

person shall be compelled to be a witness against himself. In order to ensure that this

right is protected, statements resulting from custodial interrogations are admissible only

after a showing that the police have followed the procedural safeguards described in

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).” State v.

Mogle, 2d Dist. Darke No. 2020-CA-2, 2021-Ohio-1741, ¶ 9. “The procedural

safeguards which emerged from the Miranda decision are the now-familiar warnings

which must be given to a suspect prior to a custodial interrogation.” State v. Bowshier,

2d Dist. Clark No. 2898, 1992 WL 288780, *3 (Oct. 16, 1992).
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{¶ 40} In Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550, the United States

Supreme Court established a “ ‘public safety’ exception to the requirement that Miranda

warnings be given before a suspect’s answers may be admitted into evidence[.]” Id. at

paragraph (a) of the syllabus. The public safety exception is a “narrow exception” to the

Miranda rule whereby “police officers can ask a suspect questions without first giving

Miranda warnings if they reasonably believe it is ‘necessary to secure their own safety or

the safety of the public.’ ” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12

N.E.3d 1112, ¶ 120, quoting Quarles at 659. In other words, “[t]he public safety

exception allows the police, under certain circumstances, to temporarily forgo advising a

suspect of his Miranda rights in order to ask questions necessary to securing their own

immediate safety or the public’s safety.” (Citation omitted.) State v. Strozier, 172 Ohio

App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 23 (2d Dist.).

{¶ 41} “ ‘In order to establish that the [public safety] exception is warranted in any

given case, the State must show that: (1) there was an objectively reasonable need to

protect the police or the public, (2) from an immediate danger, (3) associated with a

weapon, and that (4) the questions asked were related to that danger and reasonably

necessary to secure public safety.’ ” (Emphasis omitted.) Id. at ¶ 25, quoting State v.

Jergens, 2d Dist. Montgomery No. 13294, 1993 WL 333649, *2 (Sept. 3, 1993). The

“evaluation of the applicability of the [public safety] exception ‘takes into consideration a

number of factors, which may include the known history and characteristics of the

suspect, the known facts and circumstances of the alleged crime, and the facts and

circumstances confronted by the officer when he undertakes the arrest.’ ” State v.
 -20-

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 117, citing United States

v. Williams, 483 F.3d 425, 428 (6th Cir.2007).

{¶ 42} “This court has repeatedly applied the public safety exception to permit

police officers to question a suspect about the unknown location of a firearm[.]” State v.

Thompson-Shabazz, 2017-Ohio-7434, 96 N.E.3d 1146, ¶ 31 (2d Dist.), citing State v.

Brown, 2d Dist. Montgomery No. 26035, 2014-Ohio-3257. However, the exception is

limited. Jergens at *2. “It does not apply to all situations in which a suspect is believed

to have used a weapon in the commission of a crime and it does not permit officers to ask

questions which are not necessary to secure their safety or that of the public.” Id.

Accord Strozier at ¶ 25; Quarles at 658-59.

{¶ 43} In Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, the

Supreme Court of Ohio declined to apply the public safety exception to a defendant’s un-

Mirandized statements that were made in response to the police questioning the

defendant about whether he was armed at the time of his arrest. The evidence in

Maxwell established that seven officers entered a home to arrest the defendant for a

murder that involved a firearm. Id. at ¶17-20 and ¶ 110. After entering the home, the

officers searched the basement and first floor and found nothing. Id. at ¶ 110. The

officers then searched the home’s two bedrooms on the second floor and found the

defendant hiding in a crawl space. Id. at ¶ 111. Two of the officers pulled the defendant

from the crawl space, placed him face down on the bed, and handcuffed him. Id. As

the defendant was being handcuffed, one of the officers asked the defendant whether he

was armed. Id. The defendant responded by saying that “he did not have a gun
 -21-

anymore” and that he “had gotten rid of the gun that he once had.” Id.

{¶ 44} The defendant in Maxwell moved the trial court to have these statements

suppressed on grounds that the officers did not advise him of his Miranda rights before

questioning him. The trial court, however, applied the public safety exception to the

Miranda rule and declined to suppress the defendant’s statements. Id. at ¶ 112.

Following an appeal, the Supreme Court of Ohio determined that the public safety

exception did not apply because nothing suggested the defendant might gain access to

a weapon and inflict harm with it. Id. at ¶ 118-119. This is because “[w]hen [the

defendant] was questioned, the task force had secured the premises, performed a sweep

of the house, and determined that no one else was present.” Id. at ¶ 118. In addition,

the defendant “was handcuffed and surrounded by several task-force members.” Id.

Simply put, “[t]he house was under full control of the agents during the questioning.” Id.

Because there was no safety threat to the police officers or the public, the Supreme Court

of Ohio held that the public safety exception did not apply and that the defendant’s

statements regarding his firearm were improperly obtained in violation of Miranda. Id. at

¶ 118-122.

{¶ 45} Davis argues that the circumstances in Maxwell are analogous to the instant

case and prohibit the application of the public safety exception. Maxwell, however, is

distinguishable because, unlike this case, the defendant in Maxwell was handcuffed and

secured at the time he was asked about having any weapons. In this case, Officer Short

was going to permit Davis, who was not yet handcuffed, to get dressed and call his sister

on his cell phone so that she could come and pick up Davis’s belongings. It was not until
 -22-

Davis stood up from the bed and reached for his cell phone that Officer Short asked Davis

if he had any guns or knives in the hotel room.

{¶ 46} Officer Short testified that he asked Davis whether he had any guns or

knives for purposes of safety because the hotel room was a confined space and because

there was bedding on the bed and overnight bags in the room with unknown contents.

The trial court found, and the video evidence confirmed, that the hotel room was in fact a

confined space and that there was bedding strewn on the bed where Davis was reaching.

The video evidence also confirmed that there was an overnight bag in the corner of the

room with unknown contents.

{¶ 47} Because the officers merely conducted a brief protective sweep for

individuals in the hotel room, the officers had no way of knowing whether there was a

weapon accessible to Davis on the bed or elsewhere in the room. Fear of such potential

danger was objectively reasonable since the officers were going to let Davis have the

freedom of movement to call his sister and get dressed in a confined space. It was also

reasonable because the officers knew that Davis had an arrest warrant for a recent

burglary that possibly involved a gun. Therefore, we find that there was an objectively

reasonable need for Officer Short to ask Davis whether there were any weapons nearby

so that the officers could protect themselves from the potential, immediate danger of

Davis using a nearby weapon against them. Because Officer Short’s question to Davis

about whether he had any guns or knives was related to that legitimate concern for

danger, we find that the public safety exception applied and thus permitted that question

to be asked without giving Miranda warnings.
 -23-

{¶ 48} Davis, however, argues that once he was handcuffed by the officers he no

longer presented a risk of harm that justified further questioning about the location of the

gun. We again disagree.

{¶ 49} The public safety exception has long permitted questions to be posed to

defendants in handcuffs. United States v. Williams, 272 Fed.Appx. 473, 477 (6th

Cir.2008). For example, in Quarles, the defendant was chased in a supermarket and

placed in handcuffs before the arresting officer noticed that the defendant was wearing

an empty gun holster. Quarles, 467 U.S. 649 at 652, 104 S.Ct. 2626, 81 L.Ed.2d 550.

When the officer asked the defendant where the gun was, the handcuffed defendant

nodded in the direction of some empty cartons and responded that the “gun is over there.”

Id. In recognizing the public safety exception to Miranda, the United States Supreme

Court held that the defendant’s statement and the gun that was found were both

admissible. Id. at 659-60, 104 S.Ct. 2626. In so holding, the court found that “so long

as the gun was concealed somewhere in the supermarket, it posed more than one danger

to the public safety: an accomplice might make use of it, or a customer or employee might

later come upon it. Id. at paragraph (a) of the syllabus. This court has also recognized

that the public safety exception applies when “ ‘there is an overriding need to save a

human life or to rescue persons whose lives are in danger.’ ” Thompson-Shabazz, 2017-

Ohio-7434, 96 N.E.3d 1146, at ¶ 31, quoting State v. Luke, 5th Dist. Stark No. 2003 CA

00413, 2004-Ohio-6137, ¶ 12, citing Quarles.

{¶ 50} Similar to leaving a gun in a supermarket, leaving a gun in a hotel room

would have posed a danger to public safety and placed lives in danger. For example,
 -24-

Davis’s sister, who came to pick up Davis’s belongings could have hurt herself, the

officers, or someone else in the hotel if she had found and retrieved the gun. A hotel

room cleaner or subsequent guests or their children could have come upon the weapon

as well. Accordingly, the public safety exception applied to Officer Short’s question

about the location of the gun while Davis was being handcuffed. For all the foregoing

reasons, Davis’s claim that the public safety exception did not apply to Officer Short’s pre-

Miranda questions regarding the gun lacks merit.

Search of Hotel Room Nightstand

{¶ 51} For his last argument, Davis contends that his gun should be suppressed

as evidence because it was obtained via a warrantless search of the hotel room

nightstand in violation of his Fourth Amendment rights. Davis, however, did not

specifically raise this issue before the trial court.

{¶ 52} A motion to suppress must “state with particularity the grounds upon which

it is made.” Crim.R. 47; State v. Shindler, 70 Ohio St.3d 54, 56, 636 N.E.2d 319 (1994);

State v. Tyner, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶ 13. “The prosecutor

must know the grounds of the challenge in order to prepare his case, and the court must

know the grounds of the challenge in order to rule on evidentiary issues at the hearing

and properly dispose of the merits.” Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524

N.E.2d 889 (1988). “By requiring the defendant to state with particularity the legal and

factual issues to be resolved, the prosecutor and court are placed on notice of those

issues to be heard and decided by the court and, by omission, those issues which are
 -25-

otherwise being waived.” Shindler at 58. Therefore, “[t]he defendant must ‘raise the

grounds upon which the validity of the search or seizure is challenged in such a manner

as to give the prosecutor notice of the basis for the challenge.’ ” Columbus v. Ridley,

2015-Ohio-4968, 50 N.E.3d 934, ¶ 22 (10th Dist.), quoting Wallace at paragraph one of

the syllabus. The failure to do so results in the waiver of that issue on appeal. Id.; State

v. Geiger, 10th Dist. Franklin No. 15AP-1120, 2016-Ohio-7571, ¶ 8; State v. Luther, 2d

Dist. Montgomery No. 28908, 2021-Ohio-2697, ¶ 20.

{¶ 53} In this case, Davis’s motion to suppress did not specifically argue that the

officers’ warrantless search of the nightstand warranted the suppression of the gun

discovered therein. Davis’s initial motion to suppress generally stated that Davis was

moving to suppress “all evidence discovered as a result of * * * the * * * warrantless search

of his hotel room,” but no specific argument was ever articulated on that matter. Instead,

the motion focused on Davis’s being questioned in violation of Miranda.

{¶ 54} Davis’s post-hearing memorandum in support of his motion to suppress also

did not include an argument pertaining to the warrantless search of the nightstand.

Rather, the memorandum only raised two arguments: (1) that the officers’ entry into his

hotel room was an unlawful, warrantless entry because the officers had not yet confirmed

his arrest warrant; and (2) that the officers conducted a custodial interrogation in violation

of Miranda for which the public safety exception did not apply. Prior to announcing its

ruling, the trial court briefly recapped the two issues raised in Davis’s memorandum, and

Davis did not thereafter object or indicate that he was also arguing that the search of the

nightstand was unconstitutional. Accordingly, the trial court issued a decision that
 -26-

addressed only on the two issues raised in Davis’s post-hearing memorandum.

{¶ 55} Because Davis failed to argue that the warrantless search of the nightstand

was unlawful during the trial court proceedings, Davis has waived that issue for appeal.

“ ‘It is settled law that issues raised for the first time on appeal and not having been raised

in the trial court are not properly before this court and will not be addressed.’ ” Luther, 2d

Dist. Montgomery No. 28908, 2021-Ohio-2697, at ¶ 21, quoting State v. Schneider, 2d

Dist. Greene No. 1995-CA-18, 1995 WL 737910, *1 (Dec. 13, 1995).

{¶ 56} That said, even if Davis had challenged the search of the nightstand during

the trial court proceedings, the argument would have likely failed. We have already

decided that Officer Short’s questions and Davis’s answer concerning whether there were

any knives or guns in the hotel room were admissible under the public safety exception.

Since Davis informed the officers of the existence and location of a gun in the nearby

nightstand, it would have been unreasonable for the officers not to retrieve it. United

States v. Newsome, 475 F.3d 1221, 1226 (11th Cir.2018) (“It would defy common sense

to allow officers to question Newsome as to whether there was any threat and then

prevent them from neutralizing that threat. The gun was found as a direct result of

Newsome’s statement.”).

{¶ 57} Because all three of Davis’s suppression arguments fail, his sole

assignment of error is overruled.

Conclusion

{¶ 58} Having overruled Davis’s sole assignment of error, the judgment of the trial
 -27-

court is affirmed.

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

TUCKER, P.J., concurs.

DONOVAN, J., dissents:

{¶ 59} In my view, Albrektsen, 151 F.3d 951, and Cooper, 2d Dist. Montgomery

No. 20845, 2005-Ohio-5781, are controlling authority. Thus, the entry into Davis’s hotel

room was unlawful, and the Fourth Amendments of the Ohio and U.S. Constitutions

warrant reversal. Read together, Payton, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639,

and Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 1650, 68 L.Ed.2d 38 (1981)

permit a limited entry into a home or hotel room when necessary to locate and arrest the

suspect. This was not the factual scenario herein. Rather, this case was completely

analogous to Albrekston, where the court stated: “[The officer] knew that Albrekston was

not somewhere back in the room; he was standing right before [the officer] at the

threshold. * * * [T]he arrest of Albrekston with a warrant could have been effected at the

doorway of his motel room. It should have been, there was no need to do otherwise.”

Albrekson at 954.

{¶ 60} As noted by the Second Circuit Court of Appeals in United States v. Allen,

813 F.3d 76 (2d Cir.2016):
 -28-

“[W]hen it comes to the Fourth Amendment, the home2 is first among

equals.” Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409, 1414, 185

L.Ed.2d 495 (2013). At the Amendment's “very core stands the right of a

man to retreat into his home and there be free from unreasonable

governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511,

81 S.Ct. 679, 5 L.Ed.2d 734 (1961). In Payton v. New York, * * *, the

Supreme Court held that, in the absence of exigent circumstances, the

Amendment prohibits law enforcement officials from making a warrantless

and nonconsensual entry into a suspect's home to arrest him.

(Footnote added.) Id. at 77-78.

{¶ 61} The facts in Allen were as follows. Police officers proceeded to Allen’s

home, planning to arrest him for assault. Id. at 78. Hearing the officers’ knock on the

door, Allen stepped onto his second floor porch, and an officer asked him to come down

and talk to them. Id. at 79. Allen did so, and the officers subsequently advised him that

he “would need to come down to the police station to be processed for the assault. In

other words, he was under arrest.” Id. Allen, who was shoeless, asked if he could

retrieve his shoes and advise his daughter upstairs that he was leaving. Id. “The

officers advised Allen that he could not return upstairs unless they accompanied him,

2
“ ‘[T]he Fourth Amendment protection against unreasonable searches and seizures is
not limited to one's home, but also extends to such places as hotel or motel rooms.’ ”
United States v. Bautista, 362 F.3d 584, 589 (9th Cir.2004), quoting United States v.
Cormier, 220 F.3d 1103, 1108-1109 (9th Cir.2000). A registered hotel guest has a
reasonable expectation of privacy in his room under the Fourth Amendment. See, e.g.,
State v. Wright, 8th Dist. Cuyahoga No. 99531, 2013-Ohio-4473, ¶ 8; State v. Oliver,
2018-Ohio-3667, 112 N.E.3d 573 (8th Dist.).
 -29-

which they did.” Id. When the officers were inside, Allen was asked if he had anything

in his pockets, and he produced seven bags of marijuana. Id. Officers also found drug

paraphernalia in plain view. Id. Based upon their discoveries, the officers obtained a

search warrant, which lead to the recovery of a hand gun and drug paraphernalia. Id.

Allen was arrested “on the federal charge of being a felon in possession of a firearm.”

Id.

{¶ 62} The district court denied Allen’s subsequent motion to suppress, concluding

that “Allen submitted to the officer’s authority once he asked for permission to say

goodbye to his daughter and retrieve his shoes.” Id. at 80. Considering Payton, the

district court determined that “the ‘pivotal inquiry is whether law enforcement crossed the

threshold of the home in order to effectuate the arrest.’ ” Id. The court concluded that

Allen’s arrest did not violate the Fourth Amendment. Id.

{¶ 63} The Second Circuit, quoting Payton, noted “that ‘physical entry of the home

is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Id.

citing Payton at 585. The court noted that it “is therefore settled law that, at a minimum,

law enforcement officers violate Payton when, in the absence of exigent circumstances

or consent, they physically enter protected premises to effect a warrantless search or

arrest.” Id. at 81.

{¶ 64} Relying on United States v. Reed, 572 F.2d 412, 423 (2d Cir.1978), the

Second Circuit concluded as follows:

We believe that a careful reading of Reed establishes a precedent,

binding on this panel, that when officers approach the door of a residence,
 -30-

announce their presence, and place the occupant under arrest when he or

she, remaining inside the premises, opens the door in response to the police

request, the arrest occurs inside the home, and therefore requires a

warrant. * * *

Id. at 85.

{¶ 65} The following was significant to the Second Circuit:

There is no dispute in this case that Allen was arrested while still in

his home. The government does not contend that Allen was free to refuse

the officers' command that he would have to come to the police station with

them, or that a “reasonable person” would have felt free to do so. See

United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d

497 (1980).3 The government does not and could not contend that Allen

made a consensual decision to accept a police invitation to discuss matters

with them at another location. From the point at which the officers told

Allen that he would need to come down to the police station to be processed

for the assault, they had asserted control over his person. Allen

reasonably believed that he needed the officers' permission to return

upstairs to get his shoes and to say goodbye to his daughter, and the

officers confirmed that belief, advising him that he could go upstairs only if

he was accompanied by one or more officers. The result of the “across the

3
“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in
view of all the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” Mendenhall at 554.
 -31-

threshold” arrest was exactly the same as if the officers had entered the

apartment and arrested Allen inside, save that the intrusion into the

apartment's interior followed rather than preceded the announcement that

Allen was under arrest.

By advising Allen that he was under arrest, and taking control of his

further movements, the officers asserted their power over him inside his

home. That they did so is evident if we consider what would have

happened if Allen, after being told in effect that he was under arrest, had

simply closed the door and retreated deeper into his home. It is

inconceivable that the officers would at that point have shrugged their

shoulders and turned away. An arrested person is, and should

be, arrested: When the police are authorized to take a person into custody,

and undertake to do so, they must have the authority to make the arrest

effective if the suspect refuses to comply.

(Footnote added; emphasis sic.) Id. at 86.

{¶ 66} It was also significant to the Court that in the absence of exigent

circumstances, “the availability of telephonic warrants, the ability of officers to surveil the

home until a warrant is obtained, and power to make a warrantless arrest if the suspect

emerges from his home into the street * * * should permit effective arrests in virtually all

cases.” Id. at 87. The court concluded that, pursuant to Payton, “the Fourth

Amendment protections, which are at their zenith in the home, are adequately protected.”

Id. at 89.
 -32-

{¶ 67} Furthermore, as this Court has previously noted:

Miranda warnings are required only “when an individual is taken into

custody or otherwise deprived of his freedom in any significant way and is

subjected to questioning.” Miranda v. Arizona (1966), 384 U.S. 436, 478,

86 S.Ct. 1602, 16 L.Ed.2d 694. Questioning alone does not trigger the

requirement; the subject must also be in custody. State v. Biros (1997), 78

Ohio St.3d 426, 678 N.E.2d 891. Custody does not exist when a

reasonable person in the suspect's position would not [sic] have felt free to

end the interrogation and leave. United States v. Mendenhall (1980), 446

U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.

“Only a custodial interrogation triggers the need for a Miranda rights

warning.” Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82

L.Ed.2d 317. Custodial interrogation is defined as “questioning initiated by

law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.”

Miranda, supra.

State v. Goodspeed, 2d Dist. Montgomery No. 19979, 2004-Ohio-1819, ¶ 21-22.

{¶ 68} At the time three armed police officers entered Davis’s hotel room they

possessed neither an arrest warrant nor a search warrant. In fact, the solitary officer,

Scott Short, who testified at the suppression hearing regarding entry into Davis’s hotel

room, stated that he had not confirmed the warrant prior to going into the hotel. Tr. at p.

10. On cross examination, the following exchange occurred:
 -33-

Q. Why is it that you do not confirm warrants before you confront

individuals?

A. That’s - - we have to make sure we speak with the individual and have

them secured before we confirm a warrant.

Q. Well, you secure them and then you do whatever you do to confirm it.

What would happen if there wasn’t a legitimate warrant?

Q. You confront the individual - -

A. Uh-huh.

Q. - - and you run through - - you try to confirm it and you can’t confirm it,

they say, no, that’s - - there’s - - we have no warrant or something to that

effect. What happens then?

A. Then we let them go.

Q. * * * Why wouldn’t you confirm it before you have the confrontation

because officer safety kicks in once you confront somebody that had [a]

warrant, doesn’t it - - doesn’t it?

A. There’s always an officer safety issue when we talk to somebody, but

we wouldn’t confirm a warrant unless we met with that person.

Q. Okay.

A. Because why would we confirm a warrant if we’re not talking to

anybody?

Tr. at p. 20.

{¶ 69} I re-emphasize, even if there had been a confirmed warrant, the mere
 -34-

existence of an arrest warrant does not authorize entry into a defendant’s home (or hotel

room) where there is no necessity to enter because the defendant can be arrested at the

threshold. See Albrektsen, 151 F.3d at 955. Here, Davis opened his door in response

to the officers’ command to do so and remained just inside his hotel room, where Fourth

Amendment protections clearly extended. Rather than asking him to step outside of the

room into the hallway, the armed officers, one of whom carried a rifle, effectively arrested

Davis by means of their entry into the room and subsequent control of his further

movements, all without a search warrant or confirmed arrest warrant. In the course of

this “across the threshold arrest,” the officers lacked the authority to make the arrest

effective if Davis had refused to comply with them. Davis, like the defendant in Allen,

was clearly not free to decline to speak to the officers. Under these circumstances, and

since Davis was in custody, he was entitled to Miranda warnings at the start of the

encounter.

{¶ 70} As to Davis’s state of dress and the fact that it was February, he had pulled

on gym shorts, and there is certainly no seasonal or attire exception to Fourth Amendment

protections. The arrest could have been readily effectuated in the enclosed hotel hallway

or entryway to Davis’s room. Thereafter, the bathroom could have been cleared as there

was no suggestion any other occupants/guests were in the hotel room.

{¶ 71} Furthermore, the trial court’s reliance on Chavez, 2d Dist. Montgomery No.

27840, 2018-Ohio-4351, was erroneous as Chavez, along with his co-defendant,

Ramirez, refused for 20 to 30 minutes to open the hotel room door upon command when

the officers possessed a valid warrant for a third individual, Cardenas. The officers had
 -35-

a reasonable belief that Cardenas was inside the room and thus were allowed to enter

the room to locate and effectuate Cardenas’s arrest. The nature of the warrant, the smell

of marijuana, and the observation of a man matching Cardenas’s description gave

Sergeant Chiles reasonable belief that Cardenas was hiding inside the room.

{¶ 72} Notably, Chavez and Ramirez were arrested in the hallway after being

ordered out of the room. After they exited the hotel room and told the officers that they

were not Cardenas, the officers were not able to see certain areas of the hotel room where

Cardenas could have been hiding. Significantly, Chavez consented, saying, “go look for

yourself.” Further, upon entering, Sergeant Chiles was met with resistance when trying

to open the bathroom door. Thus the officers had a reasonable belief that someone

posing a danger to the officers was inside the bathroom. Chavez is obviously

distinguishable from this case in multiple respects.

{¶ 73} Lastly, the trial court’s factual finding that an officer had spoken to a

“detective” before the hotel room was breached is also erroneous. There was no

mention of a detective in either the oral testimony or the video until after the gun was

recovered; then Officer Diltz stated, “Their detectives in Columbus, their task force needs

to be notified. * * * She sent me the phone number.” Video at 20:42.

{¶ 74} Accordingly, I would reverse, finding a violation of the Fourth Amendment

under the Ohio and U.S. Constitutions. I would also find a Fifth Amendment violation.

Davis should have been Mirandized as he clearly was deprived of his liberty in a

significant fashion. Furthermore Davis’s motion to suppress adequately raised all

pertinent issues and the concept of waiver does not apply to the illegal search of the
 -36-

nightstand.

Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Angelina N. Jackson
Hon. Mary E. Montgomery