State v. Johnson , 2012 Ohio 1344 ( 2012 )

[Cite as State v. Johnson, 2012-Ohio-1344.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96983
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LARRY JOHNSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-544379
BEFORE: Sweeney, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: March 29, 2012
ATTORNEY FOR APPELLANT
James R. Willis, Esq.
420 Lakeside Place
323 Lakeside Avenue, N.W.
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Patrick J. Lavelle, Esq.
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant Larry Johnson (“defendant”) appeals the court’s denial
of his motion to suppress evidence related to his convictions for several drug related
offenses. After reviewing the facts of the case and pertinent law, we affirm.
{¶2} On November 16, 2010, Cleveland police responded to a dispatch call
reporting shots fired at 3067 W. 47th Street. Several police vehicles arrived at the scene,
because the caller reported that the shots were fired from an AK47 assault rifle and that
someone was shot inside the house. Dispatch provided additional information over the
radio, such as defendant’s name as a possible suspect, the involvement of a brown
Oldsmobile, and the allegation that more assault rifles were in the house. Also, the
address was corrected to 3064 — rather than 3067 — W. 47th Street.
{¶3} Police officers surrounded the house, which is a duplex, and Det. John
Graves spoke with the woman who lives in the downstairs unit. She stated that defendant
had just run from a black vehicle to the upstairs unit where he lives. Police heard noises
and saw a light come on upstairs, although there was no answer when they knocked on the
door. Dispatch then broadcasted that the caller just reported that there was a dead body
and drugs in the house.
{¶4} Based on this information, the police forcibly entered the house to secure the
scene. Defendant and two other males were inside. No one was injured, and there was
no dead body. There was, however, a strong odor of marijuana. Asked by police,
defendant admitted smoking marijuana and stated that there was marijuana in the
bedroom. Det. Graves asked defendant if the police could search the house, and
defendant consented verbally and in writing. The search revealed marijuana, crack
cocaine, powder cocaine, drug manufacturing paraphernalia, and a gun in the house.
{¶5} On December 22, 2010, defendant was indicted for three counts of drug
trafficking, two counts of drug possession, possession of criminal tools, and having a
weapon while under disability. The indictment included major drug offender, juvenile,
and firearm specifications.
{¶6} The court held a suppression hearing and, on June 15, 2011, found that
probable cause and exigent circumstances existed to justify entry into the home, and the
warrantless search was valid because defendant voluntarily consented. The court then
denied defendant’s motion to suppress. On June 20, 2011, defendant pled no contest to
the indictment and the court sentenced him to 13 years in prison.
{¶7} Defendant appeals and raises three assignments of error for our review.
{¶8} I. “The court erred when it denied the appellant’s motion to suppress and
to exclude illegally seized evidence.”
Appellate review of a trial court’s ruling on a motion to suppress presents
mixed questions of law and fact. An appellate court is to accept the trial
court’s factual findings unless they are clearly erroneous. We are therefore
required to accept the factual determinations of a trial court if they are
supported by competent and credible evidence. The application of the law to
those facts, however, is subject to de novo review. State v. Polk, 8th Dist.
No. 84361, 2005-Ohio-774, ¶ 2.
{¶9} In the instant case, defendant summarizes his argument as follows:
[T]his warrantless search was illegal because there are absolutely no
objective facts here that support any claim there was any type of urgency
here, and for sure, there was no basis to show for any belief that shots had
even been fired, and even less for a belief an injured person was inside the
house.
{¶10} Defendant further argues that nothing dispatched over the radio was
“verified” or “corroborated” other than that defendant lived in the home in question, and
the “officers seemed to be motivated by an intent to arrest and search.”
{¶11} Warrantless searches are presumptively unconstitutional, subject to a
limited number of specific exceptions, which the state has the burden of proving. State v.
Kessler, 53 Ohio St.2d 204, 373 N.E.2d 1252 (1978). The Ohio Supreme Court has held
that a “warrantless police entry into a private residence is not unlawful if made upon
exigent circumstances * * *,” including when there is an emergency or urgent situation.
State v. Applegate, 68 Ohio St.3d 348, 349, 626 N.E.2d 942 (1994). The Ohio and
United States Supreme Courts have positively cited the eloquent explanation of exigency
found in Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir. 1963):
The need to protect or preserve life or avoid serious injury is justification for
what would be otherwise illegal absent an exigency or emergency. Fires or
dead bodies are reported to police by cranks where no fires or bodies are to
be found. Acting in response to reports of “dead bodies,” the police may find
the “bodies” to be common drunks, diabetics in shock, or distressed cardiac
patients. But the business of policemen and firemen is to act, not to speculate
or meditate on whether the report is correct. People could well die in
emergencies if police tried to act with the calm deliberation associated with
the judicial process. Even the apparently dead often are saved by swift police
response. A myriad of circumstances could fall within the terms “exigent
circumstances,” * * * e.g., smoke coming out a window or under a door, the
sound of gunfire in a house, threats from the inside to shoot through the door
at police, reasonable grounds to believe an injured or seriously ill person is
being held within. See, e.g., Applegate, supra; Mincey v. Arizona, 437 U.S.
385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
{¶12} In analyzing under the Fourth Amendment whether circumstances were
exigent, as well as the reasonableness of police action, “[t]he officer’s subjective
motivation is irrelevant.” Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S.Ct.
1943, 164 L.E.2d 650 (2006). In Stuart, the court held that the officers’ entry was
reasonable when they responded to complaints about a loud party in the middle of the
night, and upon arrival, heard loud noises and saw an altercation through the window of
the house. Id. at 406. “It therefore does not matter here — even if their subjective
motives could be so neatly unraveled — whether the officers entered the kitchen to arrest
respondents and gather evidence against them or to assist the injured and prevent further
violence.” Id. at 405.
{¶13} Given this law regarding the exigent circumstances exception to the rule
against warrantless searches, we find no merit to defendant’s argument that the dispatched
information was unverified. Additionally, defendant’s allegation regarding the police
officers’ motivation is not material to the analysis at hand. Rather, we analyze whether
exigent circumstances existed under the test this court set forth in State v. Greene, 8th
Dist. No. 51008 (Oct. 2, 1986), using the following factors:
(1) the gravity of the offense; (2) that the suspect is reasonably believed to
be armed; (3) probable cause that the suspect committed the crime; (4) a
strong reason to believe that the suspect is in the premises being entered; (5)
a likelihood that the suspect will escape if not swiftly apprehended; (6) that
the entry is made peaceably; and (7) the time of entry. The U.S. Supreme
Court in Welsh [v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d
732 (1984)] stressed that the gravity of the underlying offense is an
important factor to consider.
{¶14} In the instant case, the court considered the evidence presented at the
suppression hearing and found that the dispatch call was a “Code 1, which is the highest
priority call, for shots fired with an AK-47 semiautomatic rifle.” Det. Graves thought the
call serious enough to bring in the SWAT unit. The caller identified himself and his
phone number, remained available to the police, and provided “valuable information,”
including defendant’s name and address, and the suspicion that weapons, drugs, and an
injured or dead body would be found in the house. The downstairs tenant told the police
that she had just seen defendant running upstairs from a black vehicle, which “somewhat
matched the color of a brown vehicle that the caller had stated was on the scene.” The
neighbor also told Det. Graves that there was a lot of noise coming from the upstairs unit.
{¶15} The police also heard the noises coming from upstairs, and they “saw a
light go on in the back of the house which confirmed someone was there.” Police
knocked on the door, however, no one answered. According to Det. Graves, the police
were “concerned about whether there was a person who was injured, dying, or dead
upstairs.” The court stated that, although no bodies or weapons were found, “[t]hose
were the facts as the police believed them to be on the night of November 16th, 2010,
which came from a caller who they continued to have contact with.” The court
concluded that “entry was appropriate under the exigent circumstances exception to the
search warrant requirement.”
{¶16} In applying these facts to the Greene elements, we find that the suspected
offenses could have been as serious and violent as murder. The caller identified
defendant, stated that defendant was armed with an assault rifle and inside the house, and
provided information that someone was shot and possibly dead. The neighbor confirmed
defendant’s identity and that defendant was inside the house, and told police that she heard
a lot of noise coming from upstairs. Upon review we find reasonably perceived exigent
circumstances. See State v. Smith, 1st Dist. No. C-061032, 2007-Ohio-3786, ¶ 21
(finding exigent circumstances when the police “were responding to a report of shots
being fired and were trying to resolve the situation for the safety of all involved”).
{¶17} The court also concluded that, subsequent to the entry, defendant
voluntarily consented to a search of his home. On appeal, defendant concedes that he
signed a consent to search. However, he argues that the consent was “not validated by
the fact that Miranda warnings [were] given if they [were] preceded by an illegal arrest
and an illegal search.”
{¶18} According to Det. Graves, the police searched defendant’s bedroom after
he consented. Det. Graves testified that he spoke with defendant after the house was
secured. “I asked him about the smell of marijuana. He said that they had been
smoking marijuana, and there was marijuana in the house. At that point, I requested a
consent to search, and also had an officer get the consent to search [form], read it with
him, filled it out, and he signed it.”
{¶19} The Cleveland Police report of the incident, which was offered as an
exhibit by defendant, is consistent with Det. Graves’s testimony. Det. Graves wrote and
signed the report, which reads in pertinent part as follows:
After securing the premises all parties were advised of their Miranda rights.
The residence reeked of marijuana. * * * When asked about the marijuana
smell [defendant] told us there was marijuana in the bedroom. I then
reqested permission to conduct a consent search. [Defendant] granted us
verbal permission to conduct the consent search then I retrieved [the]
Consent to Search Form, [defendant] read and signed it.
{¶20} The report additionally states that, after defendant consented, police
recovered marijuana, crack cocaine, powder cocaine, drug manufacturing paraphernalia,
and a loaded gun.
{¶21} After the police seized the drugs, Det. Graves took defendant into the
bathroom and interviewed him. This interview was videotaped and shown at the
suppression hearing. Defendant acknowledged on the videotape that he had been advised
of his rights verbally and in writing.
{¶22} Defendant testified at the suppression hearing, however, that the officers
began searching his home before getting his consent. Specifically, defendant stated that
the police found marijuana in his dresser drawer, then told him to sign the consent form.
According to defendant, Det. Graves refused to let defendant read the form and told him
that if he did not sign it they would “bring in the dogs and tear the house up.” Asked to
explain why his testimony was inconsistent with what he stated on the videotape,
defendant testified that he was scared at the time of the incident.
{¶23} Upon review, we find that the court’s determination that exigent
circumstances existed and defendant consented to the search is supported by competent
and credible evidence. As such, the court did not err in denying defendant’s motion to
suppress, and his first assignment of error is overruled.
{¶24} Assignments of error two and three will be reviewed together, and they
state as follows:
{¶25} II. “The court erred and due process was offended when it denied the
motion for illegally seized property.”
{¶26} III. “The court erred when, without a factual basis it forfeited all
property seized from the accused.”
{¶27} Our review of the record shows that defendant did not file a “motion for
illegally seized property.” Defendant’s motion to suppress includes one sentence
regarding the seizure and/or forfeiture of property: “In addition, any and all
non-contraband property seized should be returned to the defendant.” The only other
reference to “property” in the record can be found in the transcript of the court’s June 15,
2011 ruling on defendant’s suppression motion, where the following colloquy took place:
DEFENSE COUNSEL: I might add also the motion to return the money
seized from the Defendant, the State has not offered any evidence or offered
any suggestion that he could be connected to any criminal enterprise so I feel
the Court ought to order that money returned.
THE STATE: Your Honor, I don’t believe that issue was ever brought to
light until just now.
{¶28} A sidebar took place, and when the court came back on the record, it
stated, “So based on all those findings I find your motion is not well taken * * * and it’s
denied * * *.” Defendant then pled no contest to the indictment, which included
forfeiture of three cell phones, money, and a gun. When a defendant pleads no contest,
the state must allege facts sufficient to support a felony offense, and the court must find
defendant guilty. State v. Bird, 81 Ohio St.3d 582, 584, 692 N.E.2d 1013 (1998). At
the plea hearing, the state alleged that defendant owned or possessed these items and used
them in the commission of felony drug trafficking.
{¶29} On appeal, under assignments of error two and three, defendant cites no
legal authority to support his arguments. Taking into consideration our finding that the
entry into and search of defendant’s home was proper, we find no legal basis supporting
defendant’s arguments regarding property seized and/or forfeited. Accordingly,
defendant’s second and third assignments of error are overruled.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR