[Cite as State v. Morgan,

.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-30 : NEIL A. MORGAN II : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2012-CR- 0274

JUDGMENT: REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY: May 1, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

GREGG MARX THOMAS R. ELWING FAIRFIELD CO. PROSECUTOR 60 West Columbus Street ZOE A. LAMBERSON Pickerington, OH 43147 239 W. Main St., Ste. 101 Lancaster, OH 43130 Fairfield County, Case No.13-CA-30 2

Delaney, J.

{¶1} Appellant Neil A. Morgan II appeals from the January 10, 2013 Journal

Entry and March 7, 2013 Judgment Entry of Sentence of the Fairfield County Court of

Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the suppression hearing held before

the trial court on October 5, 2012.

{¶3} This case arose in the afternoon of June 19, 2012 when members of the

Fairfield County Sheriff’s Office SCRAP Unit (Street Crime Reduction and Apprehension

Program) performed a “knock and talk” at appellant’s rural Berne Township residence in

Fairfield County, Ohio. The Fairfield-Hocking Major Crimes Unit had received two

anonymous tips alleging a marijuana grow operation and methamphetamine lab were

on the property.

{¶4} Two people were known to live at the residence: appellant and his

girlfriend, Anita Graf. Deputy Lyle Campbell testified he knew appellant and Graf from

an earlier encounter, also a “knock and talk,” involving an allegation of drug activity.

Campbell stated appellant was alleged to be a member of an outlaw motorcycle gang

called “The Avengers.”

{¶5} The SCRAP Unit officers planned their approach prior to their arrival at

appellant’s residence. Campbell would approach the front door, knock, and ask to

speak with appellant and Graf; four additional officers would spread out and take up

positions around the perimeter of the residence for “officer safety” and ensure no one

left through the back of the residence. Fairfield County, Case No.13-CA-30 3

{¶6} Upon arrival, one motorcycle was parked in front of the residence, a

Harley-Davidson model registered to appellant.

Knock and Entry

{¶7} Upon Campbell’s knock, Graf answered the door. Campbell identified

himself, stated he was there because of drug activity complaints, and asked if he could

come in. Graf stated she needed to put her dog away and closed the door.

{¶8} Almost immediately as Graf closed the door, Sgt. Hamler advised

Campbell two officers in the rear of the residence had observed marijuana plants on a

rear deck. Campbell knocked again and told Graf to come out. He heard people inside

saying “hang on,” but he decided to make an “exigent entry,” opened the door partway,

and announced “Sheriff’s office, we’re coming in.” He testified Graf and appellant were

walking toward the front door from the dining room as he entered the residence.

{¶9} Graf and appellant were brought outside and officers swept the entire

residence to ensure no additional occupants were inside.

Officers Enter Perimeter and Spot Marijuana Plants

{¶10} In the meantime, Deputy Luke Williams, also a member of the SCRAP

Unit, arrived at appellant’s residence and immediately walked through appellant’s yard

to the rear of the property for “officer safety.” He observed an elevated rear deck

containing seven potted marijuana plants in pots. He notified the other officers

immediately and word spread to Campbell, who was attempting to speak to Graf at the

front door.

{¶11} Officers detained Graf and appellant outside the residence awaiting the

arrival of a search warrant. Fairfield County, Case No.13-CA-30 4

{¶12} Photos of the property on June 19, 2012 were introduced at the

suppression hearing and used extensively by both parties. The photos depict a small

bungalow-style home with a front door directly in the center, approached by a sidewalk

and steps requiring a short descent to approach the house. The home is surrounded by

a yard in front of a wooded area to the rear, also outbuildings, a motor home, and a

vehicle covered with a tarp nearby. In front of the covered vehicle is a yellow sign which

is illegible in the photos but according to the uncontroverted testimony of Anita Graf

states “No Trespassing.” A “no trespassing” sign is also posted in the front window of

the residence. A door is visible at the side of the house.

{¶13} The elevated rear deck upon which the marijuana was observed is only

visible from the rear of the property. The deck does not extend the length of the house

and is sheltered on one side by a wall. The elevated deck contains seven pots of

readily-apparent marijuana which can be seen through the balusters of the deck in the

photographs.

{¶14} Appellant was charged by indictment with one count of illegal assembly or

possession of chemicals for the manufacture of drugs, a felony of the third degree [R.C.

2925.04]; one count of trafficking in marijuana, a felony of the fourth degree [R.C.

2925.03(A)(2) and 2925.03(C)(3)(c)]; one count of possession of marijuana, a felony of

the fifth degree [R.C. 2925.11(A) and 2925.11(C)(3)(c)]; and one count of weapons

under disability, a felony of the third degree [R.C. 2923.13(A)(2)]. Each count included

a firearm specification pursuant to R.C. 2941.141 and a specification concerning

forfeiture of property pursuant to R.C. 2941.1417, to wit, $2,459.35. Fairfield County, Case No.13-CA-30 5

{¶15} Appellant entered pleas of not guilty and filed a motion to suppress all

evidence obtained in the search of his property on June 19, 2012. A suppression

hearing was held before the trial court on October 5, 2012, and the trial court filed a

Journal Entry overruling the motion to suppress on January 10, 2013.

{¶16} On February 28, 2013, appellant entered pleas of no contest to Counts I,

II, and IV and the accompanying forfeiture specifications. The firearm specifications

were dismissed on all but Count II. Appellant was sentenced to an aggregate prison

term of 48 months to be followed by a term of 3 years of community control.

{¶17} Appellant appeals from the trial court’s decision overruling his motion to

suppress.

{¶18} Appellant raises five assignments of error:

ASSIGNMENTS OF ERROR

{¶19} “I. THE TRIAL COURT ERRED IN FINDING THAT THE ACTIONS OF

POLICE OFFICERS IN SURROUNDING APPELLANT’S HOME AND TRESPASSING

ON THE CURTILAGE WITHOUT A WARRANT DID NOT VIOLATE THE FOURTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

14, OF THE OHIO CONSTITUTION.”

{¶20} “II. THE TRIAL COURT ERRED IN FINDING THAT THE WARRANTLESS

ENTRY OF APPELLANT’S HOME WAS JUSTIFIED BY EXIGENT

CIRCUMSTANCES.”

{¶21} “III. THE TRIAL COURT ERRED IN FINDING THAT THE

WARRANTLESS SEARCH BY LAW ENFORCEMENT OFFICERS WAS JUSTIFIED BY

THE PLAIN VIEW EXCEPTION.” Fairfield County, Case No.13-CA-30 6

{¶22} “IV. THE TRIAL COURT ERRED IN FAILING TO FIND THAT A SEARCH

WARRANT OBTAINED AFTER WARRANTLESS POLICE ENTRY WAS THE FRUIT

OF PRIOR FOURTH AMENDMENT VIOLATIONS.”

{¶23} “V. THE TRIAL COURT ERRED IN FINDING THAT A SEARCH

WARRANT OBTAINED AFTER WARRANTLESS POLICE ENTRY WAS ISSUED ON

VALID PROBABLE CAUSE.”

ANALYSIS

I., II., III., IV., V.

{¶24} Appellant’s five assignments of error are related and will be considered

together. Appellant’s first assignment of error challenges law enforcement’s intrusion

upon the curtilage of his residence without a warrant. We agree law enforcement was

not lawfully in a place from which they could observe the marijuana plants. Moreover,

we find this conclusion dispositive of appellant’s remaining assignments of error.

Appellate Standard of Review

{¶25} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long,

,

(4th Dist. 1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks,

,

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf,

,

(4th Dist. 1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial Fairfield County, Case No.13-CA-30 7

court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams,

,

(4th Dist. 1993),

overruled on other grounds.

{¶26} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning,

,

(1982); State v. Klein,

,

(4th Dist. 1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See,

Finally, an appellant may argue the trial court has incorrectly decided the

ultimate or final issues raised in a motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court’s conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry,

,

(8th Dist. 1994).

Fourth Amendment Analysis

{¶27} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them per se unreasonable unless an

exception to the warrant requirement applies. Katz v. United States,

,

,

(1967). The government may not intrude into areas

where legitimate expectations of privacy exist. Fairfield County, Case No.13-CA-30 8

{¶28} In determining whether the Fourth Amendment protects against a search,

“the rule that has emerged * * * is that there is a twofold requirement, first that a person

have exhibited an actual (subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize as ‘reasonable.’” Katz,

(Harlan, J., concurring). See Rakas v. Illinois,

, 143–144,

,

(1978); State v. Williams,

, 166–167,

(1995).

{¶29} The triggering event of Fourth Amendment analysis in this case is the

officers’ entry upon the “perimeter” of appellant’s property and subsequent progress

through the yard to the rear of the property, allowing them to view the elevated deck

containing the pots of marijuana.

Knock and Talk

{¶30} Officer Campbell’s initial approach to the house and first conversation with

Anita Graf is unobjectionable. The “knock and talk” effectuated at appellant’s door, prior

to the discovery of the marijuana, is recognized as a constitutionally sound police

procedure. Kentucky v. King, ____ U.S. ____, ____,

,

(2011). “When law enforcement officers who are not armed with a warrant

knock on a door, they do no more than any private citizen might do. And whether [the

person at the door is an officer or a private person], the occupant has no obligation to

open the door or to speak.” State v. Miller, 2nd Dist. Montgomery No. 24609, 2012-

Ohio-5206,

, ¶ 18, citing

. The occupant,

now alerted to the police presence, may even choose to open the door and speak but

need not allow officers to enter and may refuse to answer questions at any time.

Fairfield County, Case No.13-CA-30 9

Moreover, the knock and talk procedure may be limiting for officers when, as here, they

meet with a closed door. Nevertheless, “when the police knock on a door but the

occupants choose not to respond or speak, or maybe even choose to open the door

and then close it, the officers must bear the consequences of the method of

investigation they've chosen.” U.S. v. Ramirez,

(8th Cir. 2012). Law

enforcement may not use the knock and talk procedure to create an intrusion into other

areas of the property; to do so invalidates the consensual nature of knock-and-talk and

risks unconstitutional intrusion.

Entry into the Curtilage

{¶31} In the instant case, while the knock and talk was taking place, other

members of the SCRAP Unit entered onto the curtilage of appellant’s property. It was

this entry which allowed officers to observe the marijuana and from which the rest of

their investigative steps arose, including entry into appellant’s residence and request for

a search warrant.

{¶32} The question, therefore, is whether the officers were lawfully in a position

to view the marijuana plants on the rear elevated deck, thus setting into motion the

remaining events resulting ultimately in the execution of a search warrant. We conclude

they were not.

{¶33} The state is prohibited from making unreasonable intrusions into areas

where people have legitimate expectations of privacy without a search warrant,

including a person’s home and the curtilage surrounding it. State v. Vondenhuevel, 3rd

Dist. Logan 8-04-15,

, ¶ 10. The curtilage is considered part of the

home itself for Fourth Amendment purposes. Fairfield County, Case No.13-CA-30 10

{¶34} The elevated rear deck is in the curtilage of the property. “The curtilage is

an area around a person's home upon which he or she may reasonably expect the

sanctity and privacy of the home. For Fourth Amendment purposes, the curtilage is

considered part of the home itself.” Oliver v. United States,

,

,

(1984). The only areas of the curtilage where officers may

lawfully go are those impliedly open to the public, including walkways, driveways, or

access routes to the residence. State v. Cook, 5th Dist. Muskingum Nos. 2010-CA-40,

2010-CA-41,

, citing State v. Birdsall, 6th Dist. Williams No. WM-

09-016,

, ¶ 13.

{¶35} Because the curtilage of a property is considered to be part of a person's

home, the right of the police to come into the curtilage is highly circumscribed. State v.

Woljevach,

,

,

, at ¶ 29. Absent a

warrant, police have no greater rights on another's property than any other visitor has.

{¶36} The photos in this case are dispositive; the officers could not have seen

the marijuana had they not entered appellant’s back yard, an area which is part of the

curtilage of the residence. This is not a case of officers entering where they may

lawfully be present to ask questions of a citizen. The front door of the residence is the

means of ingress and egress. A “no trespassing” sign is posted in the front window.

The front sidewalk also leads to a door at the side of the house from which the elevated

rear deck is not visible. Exhibits B and C demonstrate the elevated rear deck is not

visible from the front of the property. The rear deck is only visible from the rear of

appellant’s property. Fairfield County, Case No.13-CA-30 11

{¶37} We find the Second District Court of Appeals’ ruling in State v. Peterson,

on very similar facts, to be instructive:

It is important that the police were at [appellant’s] residence

initially to execute a knock-and-advise and not to execute a search

warrant. The purpose of the knock-and-advise program, as stated

in a general order of the Dayton Police Department, is to notify

residents that a complaint has been received alleging drug activity

at the premises. This, of course, can be accomplished by going to

the front door of the residence and knocking and advising the

resident of the purpose of the visit. In executing a search warrant,

the warrant normally authorizes officers to enter the residence, the

surrounding curtilage, and any detached garage or outbuildings

listed in the warrant.

* * * *.

In this matter, Detective House testified at the suppression

hearing that the window he looked through was on the side of the

appellant's residence, which he accessed by walking on the lawn.

Further, House testified that there was no driveway or sidewalk by

the window and that he was standing a few feet from the side of the

house. Similar to the officer in Lorenzana, House made his

observations while standing on land not expressly open to the

public. Fairfield County, Case No.13-CA-30 12

Citizens have an objectively reasonable expectation that

police will not enter onto the side yards of their homes in the

nighttime and peer into their basement windows. We agree with the

appellant that Detective House's observations were made while he

was trespassing on the curtilage of Peterson's property. Therefore,

the evidence recovered by the police during the warrantless and

warrant searches was the product of the initial unlawful police

conduct. The evidence was the fruit of the poisonous tree and must

be suppressed. Wong Sun v. United States (1963),

,

,

.

State v. Peterson,

,

(2007).

{¶38} We find it unnecessary to reach appellant’s civil trespass argument and

note the presence of “no trespassing” signs is only one factor in our determination

appellant’s yard is not “impliedly open to the public.”

“No trespassing”

signs may be indications a property owner expects privacy within a certain area of the

curtilage.

, citing United States v. Depew,

(9 C.A. 1993), overruled on other grounds, United States v. Johnson,

(2001); see, also, State v. Russo, 68 Ore.App. 760, 762,

(1984); State v. Christensen,

, 147–148,

(1998). “It

reasonably follows that areas so designated are places into which the public is

expressly not invited.”

The presence of “no trespassing” signs does not make law

enforcement’s encroachment onto the curtilage presumptively unreasonable when Fairfield County, Case No.13-CA-30 13

officers are otherwise lawfully present. In this case, under these circumstances, officers

could not enter the back yard.

Plain View Exception Does Not Apply

{¶39} The plain-view exception to the warrant requirement does not apply to this

case. “[I]n order to qualify under the plain view exception, it must be 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.” State v. Williams,

,

(1978). Because we find law enforcement was not lawfully present to observe the

marijuana, the plain view exception to the warrant exception does not apply. State v.

Tanner, 4th Dist. Ross No. 94 CA 2006, unreported,

, * 3 (March 10,

1995). Appellant’s third assignment of error is sustained.

No Exigent Circumstances

{¶40} Officer Campbell’s entry into appellant’s residence after Anita Graf closed

the door to lock up a dog was attributed to exigent circumstances, those being the

destruction of evidence including marijuana and “stuff” associated with it. (T. 47).

Exigent circumstances are an exception to the search warrant requirement and the

destruction of evidence has been recognized as one such exigent circumstance. State

v. Methvin, 5th Dist. Richland No. 13CA44,

, citing United States v.

Rohrig,

(6th Cir. 1996).

{¶41} Exigent circumstances only excuse the absence of a warrant where the

conduct of the police is otherwise reasonable, however: Fairfield County, Case No.13-CA-30 14

[W]arrantless searches are allowed when the circumstances make

it reasonable, within the meaning of the Fourth Amendment, to

dispense with the warrant requirement. Therefore, * * * the exigent

circumstances rule justifies a warrantless search when the conduct

of the police preceding the exigency is reasonable in the same

sense. Where * * * the police did not create the exigency by

engaging or threatening to engage in conduct that violates the

Fourth Amendment, warrantless entry to prevent the destruction of

evidence is reasonable and thus allowed.

Kentucky v. King,

,

(2011).

{¶42} Conversely, if police create their own exigency by engaging in conduct

that violates the Fourth Amendment, the search should not be allowed. State v. Stacey,

6th Dist. Ottawa No. OT-13-002,

¶ 34. Because the exigency here

was based upon the observation of the marijuana, which we have found to be

unreasonable for Fourth Amendment purposes, the entry into the residence is not

justified by exigent circumstances and appellant’s second assignment of error is

sustained.

Results of the Search Warrant Must be Suppressed

{¶43} In reviewing the sufficiency of probable cause in an affidavit submitted in

support of a search warrant issued by a magistrate [or judge], neither a trial court nor an

appellate court should substitute its judgment for that of the magistrate by conducting a

de novo determination of whether the affidavit contains sufficient probable cause upon

which that court would issue the search warrant. Rather, the duty of a reviewing court is Fairfield County, Case No.13-CA-30 15

simply to ensure that the magistrate had a substantial basis for concluding that probable

cause existed. State v. George,

,

(1989), syllabus,

following Illinois v. Gates,

,

,

(1983).

{¶44} In light of our resolution of the Fourth Amendment violation, the marijuana

may not be considered probable cause for the search warrant. Where law enforcement

is in the curtilage without a warrant and observes marijuana, detection of marijuana is

the result of an unlawful search and the presence of the marijuana is then unavailable to

support probable cause for the ensuing search warrant. See,

2005-

Ohio-2085 at ¶ 26.

{¶45} Excluding the marijuana, therefore, the affidavit for search warrant

consists of the anonymous tips. Specifically, the affidavit for search warrant consists of

the marijuana plants observed at the residence and

* * * [M]ultiple complaints from multiple individuals reporting that

[appellant] is growing Marijuana and manufacturing

Methamphetamine from his residence at 795 Blue Valley Road, SE.

Some of the reports indicated [appellant] was growing Marijuana in

the barn behind his house. * * *. (Exhibit A).

{¶46} Campbell testified there were in fact two such complaints (T. 10-11) and

he was not sure how old the tips were, although one dated possibly from February or

March and the other from April or May. (T. 22). Upon redirect examination, appellee

asked Campbell whether the tips alone constituted probable cause for a search warrant

and his response was “Absolutely not.” (T.38). Fairfield County, Case No.13-CA-30 16

{¶47} Our inevitable conclusion is, therefore, the search warrant must fail

because it is not supported by probable cause based upon the tips alone. In light of the

elimination of the marijuana, the warrant is facially deficient. The good-faith exception

does not apply in this case to avoid the remedy of suppression of the evidence because

“[t]he good-faith exception * * * is not a license to give an otherwise insufficient warrant

validity.” State v. Williams,

,

, 2007–Ohio–

4472, ¶ 26.

{¶48} Appellant’s fourth and fifth assignments of error are sustained.

CONCLUSION

{¶49} Appellant’s five assignments of error are sustained for the reasons stated

in the foregoing opinion and the judgment of the Fairfield County Court of Common

Pleas is reversed. This matter is hereby remanded to the trial court for further

proceedings consistent with this opinion.

By: Delaney, J. and

Gwin, P.J.

Wise, J., concur.