[Cite as State v. Hendrix,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27217

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE ANDRE D. HENDRIX COURT OF COMMON PLEAS DELISHA R. SCOTT COUNTY OF SUMMIT, OHIO CASE No. CR 2011 12 3384 (A)(B) Appellees

DECISION AND JOURNAL ENTRY

Dated: August 20, 2014

BELFANCE, Presiding Judge.

{¶1} Plaintiff-Appellant the State of Ohio appeals from the judgment of the Summit

County Court of Common Pleas granting Defendants-Appellees Andre Hendrix’ and Delisha

Scott’s motion to suppress. For the reasons set forth below, we affirm.

I.

{¶2} On October 31, 2011, at approximately 10:30 a.m., a neighbor called police to

report that a garage door of a house on Suffolk Downs in Stow, Ohio had been standing open for

several days and that that was unusual. When police arrived on the scene, the officers did not

speak with any neighbors and did not notice any signs of a possible break in. Officers noted

nothing else unusual about the home or property. While there had been approximately 8-10

daytime burglaries in the City of Stow in the three months prior, there had been none in the

Suffolk Downs neighborhood. Ultimately, police entered the home and found marijuana

growing in a room in the upstairs of the house. 2

{¶3} Both Mr. Hendrix and Ms. Scott were charged in relation to the marijuana grow.

Mr. Hendrix and Ms. Scott were indicted on one count of possession of marijuana, one count of

illegal cultivation of marijuana, one count of trafficking in marijuana, and one count of

possessing criminal tools. In addition, Mr. Hendrix was charged with one count of having

weapons under disability.

{¶4} Mr. Hendrix filed a motion to suppress, and Ms. Scott was allowed to join in the

motion. After holding a hearing, the trial court granted the motion to suppress. The State

appealed, and this Court reversed the judgment of the trial court, concluding that, because the

trial court’s factual findings contained several inconsistencies, the evidence did not support the

trial court’s findings. See State v. Hendrix, 9th Dist. Summit Nos. 26648, 26649, 2013-Ohio-

2430, ¶ 14-15. Upon remand, the trial court issued a revised entry and again granted the motion

to suppress. The State has appealed, raising a single assignment of error for our review.

II.

THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS’ MOTION TO SUPPRESS.

{¶5} In its sole assignment of error, the State asserts that the trial court erred in

granting the motion to suppress because the police’s warrantless entry into the home on Suffolk

Downs was authorized under the emergency aid exception. We do not agree.

{¶6} Generally, review of a motion to suppress presents a mixed question of law and

fact. State v. Burnside,

,

, ¶ 8. Thus, we defer to the trial

court’s findings of fact if they are supported by competent, credible evidence and review its

application of the law to the facts de novo. State v. Metcalf, 9th Dist. Summit No. 23600, 2007-

Ohio-4001, ¶ 6. 3

The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the Ohio

Constitution protect individuals from unreasonable searches and seizures. “A warrantless entry

into a home to make a search or arrest is per se unreasonable, and the burden of persuasion is on

the state to show the validity of the search.” (Emphasis sic.) State v. Nields,

(2001); see also Brigham City v. Stuart,

(2006), quoting Groh v. Ramirez,

, (2004) (“It is a basic principle of Fourth Amendment law, that searches and

seizures inside a home without a warrant are presumptively unreasonable.”) (Internal quotations

and citations omitted.); Welsh v. Wisconsin,

(1984), quoting United States v.

United States District Court,

(1972) (“It is axiomatic that the ‘physical entry

of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”)

Thus, “[b]efore agents of the government may invade the sanctity of the home, the burden is on

the government to demonstrate exigent circumstances that overcome the presumption of

unreasonableness that attaches to all warrantless home entries.”

.

{¶7} “Nevertheless, because the ultimate touchstone of the Fourth Amendment is

‘reasonableness,’ the warrant requirement is subject to certain exceptions.”

. Thus,

“[w]arrants are generally required to search a person’s home or his person unless ‘the exigencies

of the situation’ make the needs of law enforcement so compelling that the warrantless search is

objectively reasonable under the Fourth Amendment.”

quoting Mincey v. Arizona,

(1978). “One exigency obviating the requirement of a warrant is the need to assist

persons who are seriously injured or threatened with such injury.”

. Under such

circumstances, “‘[t]he Fourth Amendment does not bar police officers from making warrantless

entries and searches when they reasonably believe that a person within is in need of immediate

aid.’”

, quoting

. “The need to protect or preserve life or avoid serious 4

injury is justification for what would be otherwise illegal absent an exigency or emergency.”

(Internal quotations and citation omitted.) State v. Dunn,

,

. Under this exigency, referred to as the “emergency-aid exception,” “[o]fficers do not need

ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception.”

(Internal quotations and citations omitted.) Id. at ¶ 19. However, the presumption of

unreasonableness may only be overcome when the exigencies of the situation are so compelling

that a warrantless entry into the home is objectively reasonable. See

;

(noting that “police bear a heavy burden when attempting to demonstrate an urgent need

that might justify warrantless searches or arrests[]”). As such, the “decision to enter must be

based on more than a hunch or the mere possibility that someone inside needs immediate aid.”

(Internal quotations and citation omitted.) Nelms v. Wellington Way Apts., LLC,

(6th Cir. 2013).

{¶8} “[A]n action is reasonable under the Fourth amendment, regardless of the

individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the]

action.” (Internal quotations, citations, and emphasis omitted.)

; Michigan v.

Fisher,

(2009). In addition, assuming that the state has met its burden of

demonstrating that the exigencies of the situation overcome the presumption of unreasonableness

with respect to a warrantless home entry, the “warrantless search must be strictly circumscribed

by the exigencies which justify its initiation.” (Internal quotations and citation omitted.) State v.

Applegate,

(1994).

{¶9} Officers David Hall and David Semonin of the Stow Police Department

responded to a call for service around 10:30 a.m. on October 31, 2011. Officer Hall testified that

a neighbor called in to report that “the garage door next door was standing open and that was 5

unusual.” Office Semonin also indicated that the caller stated that no one had been seen at the

house. At the time of the call, police only knew that a neighbor had called in but did not know

which neighbor, although it appears that the caller gave both his or her address and name to

dispatch. Officer Semonin testified that the concern based upon the call was that someone inside

was in need of help or that there had been a burglary. Officer Hall stated that there had been 8-

10 daytime burglaries in the City of Stow in the last three months; however, he did not think any

had been in the neighborhood where the house at issue was located.

{¶10} When Officers Hall and Semonin arrived on the scene they saw the garage door of

the attached garage standing open and no car inside. Officer Hall noticed nothing else unusual

about the garage. Officer Hall testified that they went to try to contact the neighbors but did not

reach anyone. They then went back to the house and tried to look in the windows and to check

the exterior for evidence of a break in. Officers did not find anything other than the garage door

being open and could not really see anything in the house because of the presence of blinds and

curtains. Officer Semonin indicated that he talked to the mail carrier who indicated that “the

mail had not been picked up from the day before and that there had been other occasions where

the mail wasn’t picked up every day * * *.”

{¶11} Officers then entered the house through the closed but unlocked man door in the

garage. The officers announced themselves and proceeded through the house with their weapons

drawn. As the officers were checking the rooms upstairs, they noticed that, behind one of the

closed doors, there was a bright light coming from the room and they could hear the sound of a

fan. Officer Hall testified that he was concerned there could be a person in the room with the

light on who might need assistance. The officers first checked the rooms that were open and

then looked in the closed room. Inside that room was a marijuana grow operation. 6

{¶12} We cannot conclude that the trial court erred in granting the motion to suppress.

We appreciate that the officers had a concern that it was possible there was someone in need of

assistance in the house or that there had been a burglary, but we cannot say that the

circumstances, when viewed objectively, would lead one to reasonably believe that anyone in the

house was in immediate need of aid. See Nields,

; Dunn,

,

. At the time of the call, police did not know which neighbor had called

to report the open garage door and were unable to talk with the neighbors upon arriving at the

house and seeing the garage door open. Thus, the police could only confirm that the garage door

was indeed open; the officers were unable to confirm how long it had been open. Moreover, the

information Officer Semonin received from the mail carrier did not provide support for the

conclusion that an emergency situation existed or that the residents had been absent or missing

for a significant period of time. The mail carrier indicated that the mail had not been picked up

from the day before; however, the mail carrier also stated that such behavior was not necessarily

out of the ordinary. Finally, the officers did not notice any signs of a break in or other

emergency when walking around the house. See State v. Hallam, 2d Dist. Clark No. 2012 CA

19,

(noting that, “[w]hen police reasonably believe that a burglary is in

progress or has occurred at a particular structure, an immediate warrantless entry undertaken to

investigate and protect that property and assist any victims inside who may be in danger or in

need of immediate aid has been upheld by the courts as a reasonable search[]”) (Internal

quotations and citations omitted.); see also id. at ¶ 22 (finding there was a reasonable belief a

burglary was in progress when officer who was sent to conduct welfare check encountered

several vehicles present but no lights on in the residence, no answer upon knocking, an open

garage door, broken garage window, and ajar front door). And while there had been daytime 7

burglaries in the City of Stow, Officer Hall did not think any of them had been in the

neighborhood of the house with the open garage door.

{¶13} We share the officers’ concern for the safety of area citizens, but those concerns

must rise to the level of a reasonable belief that someone in the residence is in need of immediate

aid, see

, in order to justify a warrantless intrusion into a private residence. Given

the record before us, we cannot say that the trial court erred in concluding that the emergency aid

exception did not apply in light of the circumstances present. This is not to say that calls by

concerned neighbors accompanied by the appropriate circumstances at the scene can never

satisfy the emergency aid exception; we only decide that the trial court did not err in finding that

the emergency aid exception did not apply to the situation faced by Officers Hall and Semonin.

In other words, when objectively viewed, the exigencies of the situation were not so compelling

as to render a warrantless entry and search reasonable under the circumstances. See Mincey,

. Instead, their entry was based on the mere possibility that there might be someone

inside who might be in need of assistance. Such is insufficient to warrant entry under the

emergency aid exception. See Nelms,

.

{¶14} The State’s sole assignment of error is overruled.

III.

{¶15} In light of the foregoing, we affirm the judgment of the Summit County Court of

Common Pleas.

Judgment affirmed.

There were reasonable grounds for this appeal. 8

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

HENSAL, J. WHITMORE, J. CONCUR.

APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellant.

DAVID GLENN PHILLIPS, Attorney at Law, for Appellee.

WALTER T. MADISON, Attorney at Law, for Appellee.

ANTHONY JORDAN, Attorney at Law, for Appellee.