State v. Andrews , 177 Ohio App. 3d 593 ( 2008 )

{¶ 48} Contrary to the majority's opinion, the case before us is not an example of overreaching police officers violating a citizen's aspirations for freedom from arbitrary government intrusion. On the contrary, the police were summoned to Lake on the Woods Trail because of a citizen's complaint about an "enormous" underage drinking party. Upon arrival, the police found evidence that the complaint was justified and observed crimes being committed in Andrews's home. The officers entered the home to make arrests and to stop the illegal activity from continuing. Because the officers' conduct was reasonable in light of the surrounding circumstances, I respectfully dissent and would uphold the trial court's denial of Andrews's motion to suppress.

{¶ 49} The majority seeks to justify its legal conclusions by relying upon its particular characterization of the evidence, despite this court's limited mandate to "review the trial court's findings of fact only for clear error and give due weight to inferences the trial judge drew from the facts."State v. Hummel, 154 Ohio App.3d 123, 2003-Ohio-4602,796 N.E.2d 558, at ¶ 11.

{¶ 50} The majority states that the officers were responding to a "noise violation" that had ceased by the time they arrived ("the nuisance had abated, and the yard was quiet and abandoned").

{¶ 51} The officers' suppression-hearing testimony did not refer to "noise," but rather, to an "enormous juvenile party" involving the consumption of alcohol. It is worth noting that underage drinking is a crime, rather than a nuisance.

{¶ 52} The first officers to respond, in whose "zone" Lake on the Woods Trail is located, did not find the scene "quiet and abandoned." They encountered two young men standing in the roadway. After giving chase, the initial officers apprehended one of the suspects, whom they determined to be a juvenile who had been consuming alcohol. These initial officers took the suspect to the station and were not available to assist the other arriving officers.

{¶ 53} When Sergeant Buckingham and Officer Kallay arrived, there were no longer any juveniles outside. As noted by the majority, the officers found abundant evidence of a juvenile drinking party: beer cans strewn along the road and driveway; cars with high school graffiti; and an unattended, actively burning bonfire surrounded by chairs and more beer cans.

{¶ 54} Nor had the drinking party ceased. Officer Kallay testified that she observed about 20 juveniles in Andrews's basement drinking from bottles and red plastic cups. Officer Kallay also observed a "beer bong" used for the rapid consumption of alcohol.

{¶ 55} The majority cites State v. Huff (June 10, 1999), 4th Dist. No. 98 CA 23, 1999 WL 402222, an "almost apposite case," for the proposition that the "hot pursuit" exception to the warrant requirement does not apply when the suspects are already in the house.

{¶ 56} Huff is completely inapposite to this case. In Huff the police responded to a dispatch reporting possible domestic violence. Upon their arrival, they found no evidence of domestic violence at the suspected residence. The officers then noticed a group of young people sitting inside the house next door, drinking beer and playing cards. The officers then entered the neighboring home and conducted sobriety tests. Id.

{¶ 57} In Huff the officers were responding to a report of domestic violence when they incidentally noticed evidence of underage consumption at another location. In the present case, the officers were responding to a report of an underage drinking party and found evidence of an underage drinking party. In Huff there was no evidence that the juveniles had been drinking outside the residence and had fled inside at the approach of the police. In the present case, there was considerable evidence that the juveniles had been consuming alcohol outside and had quickly fled inside upon the approach of police. Contrary to the majority's position, the juveniles in the present case were not "already in the dwelling." They had fled into the dwelling to avoid the police.

{¶ 58} Accordingly, the officers were justified in effecting an entry into Andrews's home, based upon the doctrine of hot pursuit. See Middletown v. Flinchum,95 Ohio St.3d 43, 44, 2002-Ohio-1625, 765 N.E.2d 330 ("a suspect may not avoid arrest simply by outrunning pursuing officers and finding refuge in her home"); State v. Stuber,150 Ohio App.3d 200, 2002-Ohio-6309, 779 N.E.2d 1090, at ¶ 12 (deputies were engaged in hot pursuit of the suspect when the suspect fled from his driveway into his house upon sight of the deputies). In these circumstances, it does not matter that Sergeant Buckingham and Officer Kallay were not the first officers to respond on the scene or that they did not actually view the flight into Andrews's home. Police action had been initiated prior to the retreat into the home. Warden v. Hayden (1967),387 U.S. 294, 297-298, 87 S.Ct. 1642, 18 L.Ed.2d 782 (officers justified in entering a home in which they had been advised, by dispatch, that a robber had fled); State v. Simpson, 5th Dist. No. 07-CA-0002, 2008-Ohio-632, 2008 WL 434984, at ¶ 7 and 15 (officers entered defendant's trailer after defendant fled the scene of an accident at which the officers were not present).

{¶ 59} A further significant distinction between the present case and Huff is that in Huff, the officers entered the residence based solely on their observations from outside the residence. Although they knocked on the door before entering, they entered without speaking with anyone or obtaining further evidence that a crime was being committed. In the present case, the officers conducted further investigation before entering the premises. The results of this investigation confirmed their observations and provided further justification for their entry into the residence.

{¶ 60} Sergeant Buckingham knocked on the door, and Andrews answered and identified herself. Sergeant Buckingham advised Andrews that they were investigating a report of underage drinking. Andrews denied that there were juveniles drinking at her residence and told him that he could not enter her home. Sergeant Buckingham then asked for identification and advised her that he would be contacting the owners of the vehicles parked at her residence. Andrews, without speaking, "immediately closed and locked the door."

{¶ 61} The majority presumes that Andrews did so in order to retrieve her identification. Sergeant Buckingham understood Andrews's actions differently and attempted to have dispatch contact her by telephone and have her return to the door. Sergeant Buckingham also knocked on the door. About ten minutes passed before Andrews opened the door again. During this time, the lights in the basement were turned off, and the officers were no longer able to view what was going on in the house. After the lights went out, Sergeant Buckingham testified that he was concerned both for the juveniles' safety and for the destruction of evidence.

{¶ 62} The majority states that "[a]t this point, the party was under control"; no juveniles were passed out or vomiting; and aluminum beer cans are not easily destroyed. However, the officers were no longer able to monitor or control what was going on in Andrews's residence. If one of the juveniles did pass out or begin vomiting, or if they continued drinking, or if they were trying to conceal evidence, the officers could do nothing at this point without gaining entry into the home. It is not reasonable or prudent to allow this sort of situation to continue longer than is necessary. Sergeant Buckingham testified that it would have taken several hours to obtain a warrant and described the effect that alcohol can have on the juveniles' judgment. The fact that no juveniles had, as yet, tried to escape the residence and drive away does not mean that this was not a possibility. Officer Kallay expressly testified that she was concerned about juveniles trying to drive away.

{¶ 63} As to the destruction of evidence, the trial court properly noted that the "breath and blood alcohol content of the juveniles who had consumed alcohol would have dissipated over time." This is the best evidence to support the charges of underage consumption of alcohol, as well as contributing to the delinquency of a minor. The police could have recovered beer cans after obtaining a warrant, but would have faced the problem of linking those beer cans to consumption by minors, as opposed to Andrews or other adults. In any event, these are not the type of deliberations that police officers should be required to make when faced with the situation in which the safety and welfare of minors are at stake.

{¶ 64} Finally, when Andrews did open the door again to produce identification, the officers had probable cause to effect her immediate arrest for contributing to the delinquency of a minor and obstruction of justice. The officers had observed minors drinking in her home. Andrews had denied what the officers had seen, refused to speak with officers, refused to allow the officers to enter her home, and demonstrated that she would not be cooperating with their investigation.

{¶ 65} In United States v. Santana (1976), 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300, police officers observed a suspect "standing in the doorway" of her home as they approached. Id. at 40, 96 S.Ct. 2406. The suspect retreated into the vestibule of the house, and the police entered through the open door and arrested her therein. Id.

{¶ 66} The Supreme Court held that there was no violation of the Fourth Amendment. "While it may be true that under the common law of property the threshold of one's dwelling is `private,' as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting theFourth Amendment [the suspect] was in a `public' place. She was not in an area where she had any expectation of privacy. `What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.'Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507,19 L.Ed.2d 576 (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445,68 L.Ed. 898 (1924)." Id. at 42, 96 S.Ct. 2406.

{¶ 67} Similarly in the present case, when Andrews exposed herself to the officers' view, speech, hearing, and touch, the officers were entitled to enter the home and effect her arrest, which they did.

{¶ 68} The majority concludes by observing that when the government becomes the lawbreaker, "it breeds contempt for the law." In the present case, the government did not break the law but acted prudently and reasonably for the safety and welfare of the juveniles involved, as well as for the community. Censuring police officers for properly doing their duty creates a real danger to the rule of law.