State v. Sladeck , 132 Ohio App. 3d 86 ( 1998 )

The irony of this case is that Sladeck was convicted of a fourth-degree misdemeanor and fifth-degree felony as the result of a warrantless search of his home by police dispatched to capture burglars, who were never apprehended.

The majority acknowledges that the exigent-circumstances exception is a "specifically established and well-delineated exceptio[n]" to the warrant requirement. Katz v. United States. It permits a warrantless arrest for a felony in a home if both probable cause to arrest and exigent circumstances exist. Payton v. New York (1980), 445 U.S. 573,583-590, 100 S. Ct. 1371, 1378-1382, 63 L. Ed. 2d 639, 648-653; State v.Jenkins (1995), 104 Ohio App. 3d 265, 268, 661 N.E.2d 806, 808.

What the majority fails to emphasize is that an exigent circumstance is an emergency that prompts police to believe there is reasonable cause to enter a home without a warrant when a person in the home is in need of immediate aid or to prevent a situation threatening life or limb, or the immediate loss, removal, or destruction of evidence or contraband. Minceyv. Arizona (1978), 437 U.S. 385, 392-393, 98 S. Ct. 2408, 2413-2414,57 L. Ed. 2d 290, 299-301; Minnesota v. Olson (1990), 495 U.S. 91, 101,110 S. Ct. 1684, 1690, 109 L. Ed. 2d 85, 96. A search to obtain evidence, however, is not an exigent circumstance, as a "warrantless search must be `strictly circumscribed by the exigencies which justify its initiation'"State v. Applegate (1994), 68 Ohio St. 3d 348, 350, 626 N.E.2d 942, 944, quoting Terry v. Ohio (1968), 392 U.S. 1, 26, 88 S. Ct. 1868, 1882,20 L. Ed. 2d 889, 908-909; see Anderson's Ohio Criminal Practice and Procedure (3 Ed. 1997) 524, Section 54.702.

Here, the constitutional safeguard is significant because of the government's intrusion into a home. The state has the burden of establishing, by the totality of the circumstances, the exigency that supports a warrantless entry and search of a home. Welsh v. Wisconsin (1984), 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732,743-744, citing Payton v. New York, 445 U.S. at 586, 100 S.Ct. at 1380,63 L.Ed.2d at 650-651. In this case, I find that the state utterly failed to meet its burden to prove that an emergency existed when police entered Sladeck's single-floor ranch house. When police responded, they met the neighbor who had reported the burglary. He informed the officers that he had seen two juveniles attempting to break in through the back door and a basement window. He told them that Sladeck was not at home and that he did not know if the juveniles were inside. At this time, the five or six officers surrounded the home. They then called for the K-9 unit, which responded with a dog trained to locate human suspects and to search for drugs. They did not, however, make an effort to obtain a search warrant.

While they waited for the K-9 unit to arrive, police saw that a pane of glass in a basement window was partially pushed out. But they saw no movement or evidence to indicate that anyone was actually inside. When the dog arrived, it located a track away from the house, but the officers testified that they still believed that someone might be inside. After entering Sladeck's residence to determine if the juveniles were present, the dog detected the presence of contraband, which police discovered by opening a footlocker and a vanity. Ultimately, Sladeck returned home, and after obtaining his consent, the police reentered and seized marijuana and drug paraphernalia.

These facts fail to establish either that an emergency existed when the officers entered Sladeck's residence, or that, once inside, the officers found contraband in plain view. Although the response by police to the report of a burglary in progress triggered an emergency situation, the absence of any potential for injury to occupants was evident when they became aware that only the burglars could be inside. Except for the time that the officers arrived, the transcript does not specify relevant times or identify the potential concerns, apprehensions, or fears of the police for their own immediate safety. While aggravated burglary is an "offense of violence" as defined in R.C. 2901.01(A)(9)(a), the record is silent as to whether the officers believed or received information that any suspect might be armed. Accordingly, the evidence offered at the hearing on the motion to suppress does not satisfy any of the four exigent-circumstances criteria recognized in Minnesota v. Olson.

The balancing of interests required by law is fact specific and must be undertaken on a case-by-case basis. We expect police to respond to emergency situations, but "the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests," and the United States Supreme Court "has recognized only a few such emergency conditions." Welsh v. Wisconsin, 466 U.S. at 749-750,104 S.Ct. at 2097-2098, 80 L.Ed.2d at 743. Because the state failed to establish the existence of an emergency that would have allowed police to enter Sladeck's home without a warrant, his subsequent consent was, likewise, invalid under the "fruit of the poisonous tree" doctrine. Statev. Carter (1994), 69 Ohio St. 3d 57, 67, 630 N.E.2d 355, 363. The marijuana and drug paraphernalia seized by police should have been suppressed.