State v. Kesler , 111 Ohio App. 3d 98 ( 1996 )

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.

Unlike the majority, I believe the facts as testified to in this case show that probable cause and exigent circumstances existed at the time the officers entered appellant's apartment, and, therefore, I respectfully dissent.

At the hearing on the motion to suppress, Deputy Henman testified that he and Deputy Fullenkamp were lawfully investigating a disturbance call at the time they came to appellant's door. Deputy Henman stated he could see appellant through the screen door sitting with a plate and plastic bag of marijuana on his knees, rolling a marijuana cigarette. After making eye contact with the officers, appellant quickly shoved the contraband into the drawer of the coffee table. The possession of marijuana being a crime, I believe the officers had probable cause to arrest.

Furthermore, the exigency of the situation in this case is apparent since appellant had obviously become aware of the officers presence when he attempted to conceal his illegal activity. Had the officers tried to secure a warrant at this point, appellant, in the meantime, surely would have destroyed all evidence of his crime. Therefore, I find the existence of probable cause and exigent circumstances sanctioned the officers warrantless entry and arrest of appellant in his home.

The situation in which Deputy Henman found himself, standing on appellant's steps, viewing an illegal substance, invokes the plain view doctrine. The warrantless seizure of items in plain view does not violate the Fourth Amendment if it is shown that "(1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities." State v.Williams (1978), 55 Ohio St. 2d 82, 9 O.O.3d 81, 377 N.E.2d 1013, paragraph one of the syllabus.

In this case, both the marijuana and the weapons were in the plain view of the officers and subject to warrantless seizure. As the officers lawfully stood at appellant's doorway, Deputy Henman testified, he saw the marijuana in plain view, and later, after lawfully entering the house to arrest appellant, the officers observed the guns in plain view in a chair near appellant. Both discoveries were inadvertent. Furthermore, marijuana, by the very fact that it is contraband, subjecting its possessor to criminal liability, is inherently incriminating. The illegal nature of appellant's act was immediately known to the officers when they proceeded into the house. As for the incriminating nature of the weapons, the record is unclear at what point the officers learned that appellant was under a disability. It is the duty of appellant to demonstrate on the record the error in the trial court. Since the record does not disclose when the officers became aware of appellant's disability and thus would have been aware of the illegal nature of the guns, I am unable to find error on the part of the trial court in refusing to suppress this evidence.

Appellant argues that because of the small amount of marijuana actually seized by police, appellant's possession constituted a minor misdemeanor, subjecting appellant only to a citation and not an arrest. Therefore, appellant contends, and the majority agrees, the officers were not justified in entering appellant's home. Appellant cites Middleburg Hts. v. Theiss (1985), 28 Ohio App. 3d 1, 28 OBR 9, 501 N.E.2d 1226, and implies that since the offense was only a minor misdemeanor, the officers were unjustified in entering the home without a warrant.

I am not persuaded by this argument. The fact that the amount appellant possessed did not, in the end, measure over one hundred grams and subjected appellant only to a fine is twenty-twenty hindsight. An officer confronted with a person possessing an illegal substance must make split-second decisions and cannot, nor should the officer be required to, make scientifically accurate determinations concerning weight in grams before proceeding to arrest the offender. The final charge levied against a defendant should not be dispositive of whether probable cause existed to warrant the initial arrest. Rather, I agree with the sentiments of the trial judge in this case, who aptly stated:

"The Court does not feel that the officer, when confronted with seeing an individual in possession of an alleged illegal substance must also be required to make the determination at that point in time whether the amount of the illegal substance would constitute a minor misdemeanor or for that matter a felony. The important question is whether the officers had sufficient justification, based on their observation to enter the premise, to make an inquiry and if necessary to arrest the Defendant."

Furthermore, while the Middleburg case cited by appellant involved illegal intrusion by police officers into a home to make an arrest for disorderly conduct, the finding in that case was not based on the fact that the crime was merely a misdemeanor. Rather, the analysis used by the court was consistent with the requirements set out in Payton. InMiddleburg, and in the cases cited therein, the courts found no exigent circumstances existed to excuse the warrant requirement. As I have already concluded, exigent circumstances did exist in this case.

Because of important factual differences, the cases cited by the majority are also distinguishable. In State v. Robinson (1995), 103 Ohio App. 3d 490, 659 N.E.2d 1292, plainclothes police officers pushed their way into the defendant's apartment simply because they smelled marijuana, which without more, is only probable cause of a minor misdemeanor of possession. This is different from the instant case, in which the illegal substance was in the plain view of officers and it was unclear whether the offense would constitute a minor misdemeanor or something more serious. Furthermore, the court in Robinson failed to find exigent circumstances in cases involving the destruction of evidence of minor offenses; however, in the instant case, at the time the officers entered the apartment, it could not be said with any certainty that the destruction would only involve evidence of a minor misdemeanor. Again, hindsight in this case confirms that the gram weight of the contraband warranted only a citation and not an arrest, yet these facts may not have been readily apparent from the officer's brief view of the contraband. Appellant's furtive movement to conceal the marijuana after he realized police officers were watching him created exigent circumstances, in that had the officers left the apartment to get a warrant, the evidence would have been destroyed.

In State v. Jenkins (1995), 104 Ohio App. 3d 265,661 N.E.2d 806, the officer's probable cause to make a warrantless entry was even more tenuous than that in Robinson and equally distinguishable from the present case. In Jenkins, the officer approached the defendant's apartment door after gathering information from an informant concerning the alleged use and sale of drugs at that address. The officer knocked on the door and identified himself as a police officer, but the defendant refused to let him in. The officer stated he believed the defendant had something to hide, as he saw the defendant running away from the door inside the apartment. Suspecting that the defendant was going to destroy drugs, the officer kicked in the door. The court found this entrance to violate the Fourth Amendment. However, unlike this entrance, the officers in the present case entered only after witnessing a crime in plain view, as detailed previously.

Moreover, assuming the officer in Jenkins had adequate probable cause, the Jenkins court found that no exigent circumstances existed to justify a warrantless entry, because the officer could have attempted to secure a warrant based on the information supplied by the informant. Instead, by attempting to get consent to enter the apartment without a warrant, the officer alarmed the defendant and created the exigent situation he later used to try justify his warrantless entry. In the present case, Deputies Henman and Fullenkamp did not create the exigent situation. They were on a routine disturbance call and had no reason to know they would stumble upon a crime in progress. Unlike Jenkins, prior to viewing the illegal substance in appellant's possession, there existed no probable cause for the officers to use as a basis for a warrant in this case.

I find the instant case analogous to State v. Taylor (1978),61 Ohio App. 2d 209, 15 O.O.3d 323, 401 N.E.2d 459. InTaylor, two police officers standing on an apartment walkway witnessed two men through an apartment window inspecting a bagged brown substance the officers suspected to be marijuana. After knocking on the apartment door, the officers saw the furtive movements of the men inside the apartment as they gathered the bags of marijuana and moved to exit through the back door. One defendant was apprehended outside the residence while police entered the back door of the apartment to arrest the other defendant and seize the marijuana found in plain view. The court in Taylor held that the arresting officers were justified in entering the house to arrest the second defendant and in seizing any contraband in plain view. Furthermore, the court found that the seizure of the evidence was proper as incident to the lawful arrests.

For the foregoing reasons, I depart from the analysis and conclusion of the majority and find that there was probable cause and exigent circumstance to justify the warrantless entry and seizure of marijuana and weapons in this case.