I agree with principal opinion's conclusion that the law enforcement officers failed to comply with the R.C. 2935.12 "knock and announce" requirement. I write separately to further explain my position on this issue.

R.C. 2935.12 sets forth Ohio's knock and announce procedures. The statute prohibits law enforcement officers from forcibly entering the premises unless certain requirements are met. The statute provides, in relevant part:

(A) When making an arrest * * *, the peace officer, law enforcement officer, or other authorized individual * * * making the arrest * * * may break down an outer or inner door or window of a dwelling house or other building, if, after notice of his intention to make the arrest, he is refused admittance * * *.

Thus, pursuant to R.C. 2935.12, law enforcement officers may not forcibly enter premises unless: (1) the officers first give notice of their intention to execute an arrest; and (2) the officers are refused admittance.

A refusal to admit may be actual or constructive. SeeState v. Valentine (1991), 74 Ohio App.3d 110, 113,598 N.E.2d 82, 84; State v. DeFiore (1979), 64 Ohio App.2d 115,411 N.E.2d 837. Officers are constructively refused admittance when the occupant of the premises fails to respond to the officers within a reasonable period of time.¹ See United States v. Moore (C.A. 10, 1996), 91 F.3d 96, 98; People v. Riddle (Ill.App. 1994), 258 Ill. App.3d 253, 630 N.E.2d 141. Once a reasonable period of time has elapsed and the officers are thus constructively refused admittance, the officers may use force to enter the premises. If, however, law enforcement officers fail to wait until a reasonable period of time has elapsed prior to using force, the officers' actions violate the knock and announce statute.

I note, however, that an officer's failure to comply with the knock and announce statute does not necessarily invalidate the ensuing arrest or search. The otherwise invalid entry may nevertheless be upheld if exigent circumstances exist that excuse the officer's noncompliance with the statute. SeeRichards, supra; Wilson, supra; Valentine,74 Ohio App.3d at 114, 598 N.E.2d at 85; DeFiore, 64 Ohio App.2d at 117,411 N.E.2d at 838; State v. Roper (1985), 27 Ohio App.3d 212, 213,500 N.E.2d 353, 354. As the court stated in Wilson, the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interest." Wilson,514 U.S. at 934, 115 S.Ct. at 1918, 131 L.Ed.2d 976.

Countervailing law enforcement interests (exigent circumstances) may include an officer's fear for his physical safety or an officer's reasonable belief that "evidence would likely be destroyed if advance notice were given."Id., 514 U.S. at 936, 115 S.Ct. at 1919, 131 L.Ed.2d 976. If such countervailing law enforcement interests are present, the officers may dispense with the knock and announce procedures.Id., 514 U.S. at 934, 115 S.Ct. at 1918, 131 L.Ed.2d 976. InGaston v. Toledo (1995), 106 Ohio App.3d 66, 75,665 N.E.2d 264, 270, the court wrote:

"It is well settled law that where officers hold a reasonable belief that they are in danger of bodily harm or that suspects are trying to escape or destroy evidence, compliance with the knock-and-announce principle is excused. See, e.g. Furry, 31 Ohio App.2d at 113, 60 O.O.2d at 199, 286 N.E.2d at 305."

In determining whether a law enforcement officer's failure to comply with the knock and announce procedures is justified, theRichards court formulated the following "case-by-case" standard:

"In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence."

Id., ___ U.S. ___, 117 S.Ct. at 1421, 137 L.Ed.2d 615; see, also, Ker v. California (1963), 374 U.S. 23, 83 S.Ct. 1623,10 L.Ed.2d 726 (Brennan, J., dissenting); Valentine, 74 Ohio App. 3 d at 114, 598 N.E.2d at 84-85.

Many cases provide that the mere presence of a weapon is generally insufficient to justify an officer's fear for his safety. Rather, the officer must relate facts establishing that "the suspect was armed and likely to use a weapon or become violent." United States v. Bates (C.A.6, 1996), 84 F.3d 790,795; see, also, United States v. Nabors (C.A.6, 1990),901 F.2d 1351, 1354, certiorari denied (1990), 498 U.S. 871,111 S.Ct. 192, 112 L.Ed.2d 154; United States v. Spinelli (C.A.2, 1988),848 F.2d 26, 30. As the court stated in Bates, 84 F.3d at 795:

"Evidence that firearms are within a residence, by itself, is not sufficient to create an exigency to officers when executing a warrant. * * * However, threats to an officer's safety, a criminal record reflecting violent tendencies, or a verified reputation of a suspect's violent nature can be enough to provide law enforcement officers with justification to forego the necessity of knocking and announcing their presence."

(citations omitted); see, also, Thompson v. Mahre (C.A.9, 1997)110 F.3d 716 (suspect was a violent "career criminal"); UnitedStates v. Hudson (C.A.9, 1996), 100 F.3d 1409 ("mild" exigent circumstances when suspect possesses firearm); United States v.Stowe (C.A.7, 1996), 100 F.3d 494 (suspect had a prior criminal record); United States v. Reed (C.A.9, 1994), 15 F.3d 928 (exigent circumstances when officers knew suspect had a criminal record and suspected that suspect might be armed);United States v. Kennedy (C.A.4, 1994), 32 F.3d 876 (suspect had criminal record); United States v. Bonner (D.C. Cir. 1989),874 F.2d 822, 826 (possibility of danger to officers one of "the most common and compelling" circumstances that establishes exigency); United States v. McConney (9 C.A., 1984),728 F.2d 1195, certiorari denied (1984), 469 U.S. 824, 105 S.Ct. 101,83 L.Ed.2d 46, certiorari denied (1991), 502 U.S. 840,112 S.Ct. 130, 116 L.Ed.2d 97 (suspect had prior violent felony conviction).

Professor LaFave discusses this topic in his treatise at 3 LaFave, Search and Seizure (3 Ed. 1996), Section 6.2(d) page 291 as follows:

"Similarly, when entry without notice is undertaken to minimize the danger to the arresting officer, it is not enough that the person to be arrested is known to own some type of firearm. But it is sufficient that the officers have information tending to show that this person would actually be armed with the weapon, or that he 'had previously expressed his willingness to use firearms against the police.' Likewise, entry without notice is justified when the police are seeking two men who had previously killed three policemen. This is not because of any blanket rule that all persons wanted for the crime of murder could reasonably be expected to offer forcible resistance, but rather because of the nature and circumstances of the particular homicides. Entry without notice is also justified when it will serve to prevent harm to some other person, but once again this risk must be established by the circumstances of the individual case."²

The possibility that a suspect may destroy evidence of a crime may also create an exigent circumstance. The officers must establish, however, that "they had 'a reasonable belief that the loss or destruction of evidence (was] imminent.' "Bates, 84 F.3d at 796 (quoting United States v. Radka (C.A.6, 1990), 904 F.2d 357, 362).

"The mere possibility or suspicion that a party is likely to dispose of evidence when faced with the execution of a search warrant is not sufficient to create an exigency. * * * Nor is the generalized and often recognized fear that destruction of evidence is an inherent possibility during the execution of a warrant adequate grounds to find exigent circumstances, * * * although this is more likely to be accepted when the drugs are in easily disposable quantities."

Bates, 84 F.3d at 796; see, also Thompson, supra (suspect was believed to be in possession of easily disposable narcotic);Kennedy, supra (suspect had easily disposable narcotics inside premises); United States v. Garcia (C.A.1, 1993), 983 F.2d 1160 (easily disposed of contraband); Bonner, supra (possibility of destruction of evidence one of "the most common and compelling" circumstances that establishes exigency).

In the case sub judice, the parties limited the suppression issue to the officers' alleged failure to comply with the R.C.2935.12 knock and announce requirement. During the suppression hearing, Deputy Bettencourt testified: (1) that Carol Brown informed officers that she wished to file a domestic violence complaint against appellant stemming from an incident that occurred earlier that evening; (2) that Brown had already left the residence; (3) that Brown informed the officers that appellant would be found asleep at the residence; and (4) that the back door would be unlocked. Deputy Bettencourt further testified that he and the other officers did not "knock and announce" prior to entering appellant's residence because: (1) appellant owned a 9mm handgun; and (2) the sheriff's department's protocol in domestic violence situations encouraged entry into the residence in that manner.³

After my review of the evidence adduced at the suppression hearing, I must conclude that insufficient evidence exists to establish a threat to the officers' safety that would permit entry into appellant's residence absent compliance with the R.C. 2935.12 knock and announce requirement. Although Deputy Bettencourt testified that appellant had a handgun in the residence, I found no additional evidence establishing threats to the officers' safety. In particular, I found no evidence indicating that appellant: (1) had a criminal record reflecting a violent nature; (2) had a reputation for violence; or (3) had ever expressed of demonstrated a willingness to use a firearm against police officers. Further, the underlying domestic violence offence did not appear to involve the handgun.

Thus, the fact that a weapon may be located in a suspect's residence does not, standing alone, excuse an officer's compliance with the statute. Many citizens own weapons and present no threat to law enforcement officers' safety. If, however, a particular suspect does possess a weapon and does constitute a threat to an officer's safety, the officer's compliance with the statute's requirements will be excused. Unfortunately, in the case at bar insufficient evidence exists to establish a valid threat to the officers' safety.

Accordingly, based upon the foregoing reasons I concur with the judgment rendered in the principal opinion.

In most cases, courts have held that thirty seconds is a reasonable period of time to imply a constructive refusal. See,e.g., United States v. Schenk (8 C.A. 1993), 983 F.2d 876, 879;United States v. Ramos (9 C.A., 1991), 923 F.2d 1346, 1355-56;People v. Songer (Ill.App. 1992), 594 N.E.2d 405, 410. But seeUnited States v. Knapp (C.A. 10, 1993), 1 F.3d 1026, 1031 (ten to twelve second interval sufficient to constitute constructive refusal).

"State v. Piller, 129 Ariz. 93, 628 P.2d 976 (App. 1981) (not sufficient that police knew that at some earlier time defendant had negotiated for the purchase of a handgun); People v.Bennetto 10 Cal.3d 695, 111 Cal.Rptr. 699, 517 P.2d 1163 (1974); United States v. DeParias, 805 F.2d 1447 (11th Cir. 1986) (bulletin said kidnapping-murder defendants armed and dangerous); United States v. Ramirez, 770 F.2d 1458 (9th Cir. 1985) (officer received teletype that defendants considered armed and extremely dangerous; they suspects in kidnapping-murder and knew FBI looking for them); United Statesv. Guyon, 717 F.2d 1536 (6th Cir. 1983) (defendant was an armed fugitive from justice); People v. Winters, 97 Ill.2d 151, 73 Ill.Dec. 439, 454 N.E.2d 299 (1983) (defendants within had committed armed robbery minutes before); Commonwealth v.Cundriff, 382 Mass. 137, 415 N.E.2d 172 (citations omitted); see, also, Thompson v. Mahre (C.A.9, 1997) 110 F.3d 716 (suspect was a violent "career criminal"); United States v.Hudson (C.A.9, 1996), 100 F.3d 1409 ("mild" exigent circumstances when suspect possesses firearm); United States v.Stowe (C.A.7, 1996), 100 F.3d 494 (suspect had a prior criminal record); United States v. Reed (C.A.9, 1994), 15 F.3d 928 (exigent circumstances when officers knew suspect had a criminal record and suspected that suspect might be armed);United States v. Kennedy (C.A.4, 1994), 32 F.3d 876 (suspect had criminal record); United States v. Bonner (D.C. Cir. 1989),874 F.2d 822, 826 (possibility of danger to officers one of "the most common and compelling" circumstances that establishes exigency); United States v. McConney (9 C.A., 1984),728 F.2d 1195, certiorari denied (1984), 469 U.S. 824, 105 S.Ct. 101,83 L.Ed.2d 46, certiorari denied (1991), 502 U.S. 840,112 S.Ct. 130, 116 L.Ed.2d 97 (suspect had prior violent felony conviction). (1980) (finding that police announcement "would have endangered themselves or others * * * is amply supported by the evidence that the defendant was suspected of participating in an armed robbery in which both handguns and a sawed-off shotgun had been used"); State v. Allison,298 N.C. 135, 257 S.E.2d 417 (1979) (murderer had just recently entered with rifle); Commonwealth v. Williams, 316 Pa. Super. 100,462 A.2d 813 (1983) (defendant committed crime with gun 6 hours earlier and no weapon found at scene); Commonwealth v. Stanley, 498 Pa.326, 446 A.2d 583 (1982) (defendant escaped from prison, for murder with firearm and was reported to be armed); UnitedStates v. Turner, 926 F.2d 883 (9th Cir. 1991) (sufficient even if police lacked "specific information that Turner currently had weapons"); Rodriguez v. Jones, 473 F.2d 599 (5th Cir. 1973). See also United States v. De Parias, 805 F.2d 1447 (11th Cir. 1986) (defendants wanted for brutal kidnapping and murder); Jones v. State, 440 So.2d 570 (Fla. 1983) (officer had just been shot from that apartment); People v. Marsh, 108 Mich. App. 659, 311 N.W.2d 130 (1981) (defendant had recently purchased a rifle, was registered at motel under an assumed name, and was wanted for armed robbery and murder)."

I respectfully dissent. Alley had the burden of notifying the court and the prosecution of whether he based his motion to suppress on a statutory requirement or a constitutional defect or both. Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218. See, also, State v. Shindler (1994), 70 Ohio St.3d 54. Alley met his burden by notifying the court and prosecution that "[t]he basis of this motion is that the State of Ohio violated Section2935.12 [of the] Revised Code and entered his property without notice of their intention to make an arrest or to execute a warrant or summons." Thus, at the suppression hearing, the trial court limited the hearing to the application of R.C.2935.12 and did not consider any constitutional defects.

On the day of the jury trial, Alley filed another motion to suppress based on R.C. 2935.12 and federal law. After the prosecution objected because of a lack of timely notice, Alley told the trial court that the basis of his motion was R.C.2935.12. Therefore, the trial court limited its findings when it overruled the motion to suppress to the application of R.C.2935.12.

I believe that the application of R.C. 2935.12 is limited to entries by violent, forcible action. See State v. Campana (1996), 112 Ohio App.3d 297, 302; State v. Baker (1993),87 Ohio App.3d 186, 193; State v. Davis (1992), 80 Ohio App.3d 277,287; and State v. Applebury (1987), 34 Ohio App.3d 376,378. Here, the officer entered the residence by turning the knob on an unlocked door. Thus, the officer did not use violent, forcible action and consequently did not violate R.C.2935.12.

Thus, I dissent.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Pike County Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs with Concurring Opinion

Kline, P.J.: Dissents with Dissenting Opinion FOR THE COURT:

FOR THE COURT:

___________________________

Lawrence Grey, Judge

Judge Lawrence Grey, retired of the Fourth District Court of Appeals, sitting by assignment of the Ohio Supreme Court in the Fourth District.

This is an appeal from the Pike County Court. Defendant-Appellant Alley was convicted of resisting arrest and takes this appeal designating five claims of error.

Facts: Pike County Deputy Sheriffs Ford, Siders, and Bettencourt answered a domestic violence call at the IGA Market in Beaver. There they talked to Carol Brown who said she had been assaulted by defendant, who was at his home on Salem Cave Road. She also told the deputies that he might possibly have a gun and that the back door was unlocked. The three deputies went there, arriving around 1:30 a.m. The house was dark and the deputies entered through the back door, using their flashlights. They went into Alley's bedroom and woke him up. Deputy Bettencourt testified that as Alley was sitting on the bed, he told him he was under arrest and Alley swung his arm back to hit him. Bettencourt then hit Alley on the head with his flashlight. The scuffle lasted about fifteen seconds, and Alley was handcuffed. The cuffs were removed so Alley could get dressed and Bettencourt did some basic first aid. Alley was taken to the Pike County Hospital. On the way from the hospital to the Pike County jail, Alley was combative, calling the officers names and kicking the door and cage of the cruiser. Deputy Ford stopped the cruiser and maced Alley.

Alley file a motion to suppress which was overruled. At a trial by jury, Alley was found guilty of resisting arrest, not guilty of assault, but guilty of the lesser offense of disorderly conduct.

"THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO DISMISS AND/OR TO SUPPRESS EVIDENCE AS A RESULT OF AN UNLAWFUL ARREST."

When reviewing a motion to suppress, we apply a de novo standard to legal questions and a clearly erroneous standard to factual findings. We accept the trial court's findings of fact and rely on its ability to evaluate the credibility of the witnesses, State v. Clay (1972), 34 Ohio St.2d 250, and then we independently determine, without deference to the trial court, whether the court has applied the appropriate legal standard.State v. Simmons (Aug. 30, 1990), Wash. App. No. 89 CA 18, unreported. The facts in this case are not disputed, but the appropriate legal standard is.

The Fourth Amendment, as applied to the states through the Fourteenth Amendment, prohibits warrantless, nonconsensual entry into a suspect's home for a routine felony arrest.Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639,100 S.Ct. 1371. Exigent circumstances, such as destruction of evidence, may create an exception, State v. Akron Airport PostNo. 8975 (1985), 19 Ohio St.3d 49. Also, the seriousness of the underlying offense has been recognized as an important factor in determining whether an exigency exists, but in Welsh v.Wisconsin (1984), 466 U.S. 740, 753, 80 L.Ed.2d 732, 745,104 S.Ct. 2091, the Supreme Court held that a warrantless entry on a minor charge, drunk driving, cannot be justified as exigent circumstances.

The appellee does not assert exigent circumstances, but claims the arrest was proper on the authority of State v.Campana (1996), 112 Ohio App.3d 297, 678 N.E.2d 626. InCampana, the court reached the conclusion that the application of R.C. 2935.12 is limited to entries by violent, forcible action, a conclusion we are not ready to make in this case, but the court went on to says as follows,

"However, appellant's claim that his arrest was unlawful in that it violated his constitutional rights is correct. The Fourth Amendment was designed to protect individuals from unreasonable government intrusions in areas where they have a reasonable expectation of privacy. State v. Hall (June 30, 1986), Lucas App. No. L-85-403, unreported, 1986 WL 7373. In Wilson v. Arkansas (1995), 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976, the United States Supreme Court interpreted the Fourth Amendment to incorporate the common-law principle of 'knock-and-announce' prior to entering a residence. However, that court decided that whether an officer should announce his presence is merely a factor in assessing the reasonableness of a search or seizure. In other words an officer must act reasonably.

If an officer enters a home without waiting an adequate time after knocking and fails to announce his intention, with no exigent circumstances present, the entry is unlawful. State v. Valentine (1991), 74 Ohio App.3d 110, 598 N.E.2d 82; State v. DeFiore (1979), 64 Ohio App.2d 115, * * *

In this case, appellant's conviction for resisting arrest cannot pass constitutional muster in that the arrest was unlawful. The officers failed to knock and announce themselves before entering the workshop.

The arrest was unlawful where the officers failed to follow the knock-and-announce requirement before entering the defendant's home workshop."

In the case before us, there was no attempt by the deputies to knock and announce themselves. They gained entry surreptitiously through an unlocked back door, and, therefore, the arrest made following this entry is unlawful.

Assignment of Error I is well taken and is sustained.

In light of our holding in Assignment of Error 1, we next consider Assignment of Error IV.

"THE TRIAL COURT ERRED IN THE INSTRUCTIONS TO THE JURY ON THE QUESTION OF THE LAWFULNESS OF THE DEFENDANT'S ARREST AND OF HIS RIGHT TO RESIST AN ARREST WHERE EXCESSIVE FORCE IS USED."

It is well established that one essential element of resisting arrest under R.C. 2921.33 is that there be a lawful arrest. A lawful arrest is an element of the crime. State v.Hendren, (1986), 110 Ohio App.3d 496, 674 N.E.2d 774. Lawful arrest is an element of the crime of resisting arrest, and failure to instruct on that element is reversible error. Hooverv. Garfield Heights Mun. Court, 802 F.2d 168 (C.A. 6, 1986). Absent a rational basis, an arrest is not lawful. The absence of this element, moreover, precludes a defendant's conviction for resisting arrest, and the defendant's motion for acquittal was therefore erroneously denied. Garfield Hts. v. Simpson (1982), 82 Ohio App.3d 286, 611 N.E.2d 892. Absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. The exigent circumstances exception is generally limited to the investigation of felony offenses. R.C. 2921.33 does not prohibit resisting an unlawful arrest. Elyria v. Tress (1991),73 Ohio App.3d 5, 595 N.E.2d 1031. See, also, Columbus v. Henry (1995), 105 Ohio App.3d 545, State v. Lamm (1992), 80 Ohio App.3d 510, and State v. Miller (1990), 70 Ohio App.3d 727. Assignment of Error IV is well taken and sustained.

"THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE HEARSAY STATEMENTS BY ONE WHO WAS AVAILABLE FOR TRIAL BUT NOT PRESENT PURSUANT TO EVIDENCE RULE 803(2)."

This assignment of error is not well taken. While examining the deputies on direct, the state asked questions about their initial contact with the complaining witness, Carol Brown. Such questions were necessary to establish why they went to Alley's home in the first place. Obviously there was a danger of getting into prejudicial hearsay, but the court specifically instructed the jury as follows, at T. 11, "* * * The jury will disregard anything the officer has said to this point concerning any statement made by Carol Brown. The jury may consider to this point statements of the officer based on of (sic) his observations of Carol Brown to this point." This was a proper instruction. Assignment of Error II is overruled.

"THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS OF THE DEFENDANT PURSUANT TO EVIDENCE RULE 404(B)."

Evid.R. 404 provides:

"(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The admissibility of other acts evidence is carefully limited because of the substantial danger that the jury will convict the defendant solely because it assumes that the defendant has a propensity to commit criminal acts, or deserves punishment regardless of whether he committed the crime charged in the indictment. State v. Schaim (1992), 65 Ohio St.3d 51.

Evidence of other acts of a criminal defendant may be admissible, pursuant to Evid.R. 404(B) and R.C. 2945.59, only if one or more of the matters enumerated therein are a material issue at trial and only if such evidence tends to show the material enumerated matter. State v. Curry (1975), 43 Ohio St.2d 66; State v. Parrish (1991), 71 Ohio App.3d 659. The other acts evidence must be relevant to some issue involving proof of guilt. State v. Bobo (1989), 65 Ohio App.3d 685.

In this case, the state was attempting to prove that Alley had resisted arrest, and evidence that he appeared to be intoxicated and was combative does have some relevance, especially on the element of recklessness. In State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus, the court stated, "The admission or exclusion of relevant evidence rests within the sound discretion of the trial court." We do not find the trial court abused its discretion. Assignment of Error III is not well taken and is overruled.

"THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A NEW TRIAL."

Assignment of Error V merely asserts that based on the grounds raised in Assignments of Error I through IV, a new trial should have been granted. In light of our holding on these claims of error, Assignment of Error V is moot, and to that extent is overruled.

Based on the foregoing, the judgment of the trial court is reversed and the Defendant-Appellee, Donald C. Alley, is discharged.

JUDGMENT REVERSED