[Cite as State v. Brown, 2015-Ohio-3718.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,
                                                        CASE NO. 9-15-05
        PLAINTIFF-APPELLANT,

       v.

AMBER LEIGH BROWN,                                      OPINION

        DEFENDANT-APPELLEE.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 14-CR-0519

                       Judgment Reversed and Cause Remanded

                          Date of Decision: September 14, 2015



APPEARANCES:

        Denise M. Martin for Appellant

        Joel M. Spitzer for Appellee
Case No. 9-15-05


WILLAMOWSKI, J.

        {¶1} Plaintiff-appellant the State of Ohio (“the State”) brings this appeal

from the judgment of the Court of Common Pleas of Marion County granting the

motion to suppress filed by defendant-appellee Amber Brown (“Brown”). For the

reasons set forth below, the judgment is reversed.

        {¶2} On October 7, 2014, Lieutenant Christy Utley (“Utley”) and Detective

Mike Wheeler (“Wheeler”) responded to a 9-1-1 call regarding an unresponsive

female. Tr. 7.1 Utley testified that she went to the scene pursuant to the policy at

the Marion County Sheriff’s Office that members of the drug unit will respond to

any call regarding an overdose to preserve evidence and talk to the suspects and/or

victims. Tr. 21. After speaking with Brown, Utley learned that Brown had used

heroin that day. Tr. 12.

        {¶3} On November 20, 2014, the Marion County Grand Jury indicted

Brown on one count of possession of heroin in violation of R.C.

2925.11(A)/(C)(6), a felony of the fifth degree. Doc. 1. Brown filed her motion to

suppress 1) any test results of Brown’s drug levels, 2) statements made by Brown,

3) her exercise of her right to remain silent, and 4) the observations and opinions

of the police officers obtained from the warrantless search and seizure of the

defendant. Doc. 25. Brown’s motion argued that the statements were made while


1
  As there are two hearings, the suppression hearing transcript will be identified as “Tr.” The second
hearing, which was held on January 21, 2015, will be identified as “2Tr.”

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she was in custody. Id. On Wednesday, January 14, 2015, a hearing was held on

the motion to suppress. Doc. 31.

      {¶4} At the hearing, the following testimony was provided by the State.

Utley testified on direct examination that at the time in question, she was assigned

to the Drug Task Force Unit as a detective. Tr. 6. Utley testified that she and

Wheeler became involved in the case when she received a call from Major Corwin

who informed them that dispatch had received a 9-1-1 call of an unresponsive

female and asked them to respond. Tr. 6-7. At that time, she knew nothing other

than there was an unresponsive female and that the Emergency Medical

Technicians were en route. Tr. 7. Utley testified that Deputy Fohl had arrived at

some point in time, but that he did not do anything while he was there. Tr. 8.

Upon her arrival to the home, Utley testified that there were already three or four

EMTs present along with Brown’s mother, sister, brother, and boyfriend. Tr. 8.

Utley testified that when she entered the room she asked where the unresponsive

person was and learned that it was Brown who was sitting on the couch at that

time. Tr. 9. The EMTs indicated that they had given her Narcan and that they

were done treating her. Tr. 9. When Utley asked Brown what had happened,

Brown told her that she had not felt well, so she laid down on the couch and

awoke to find the EMTs standing over her. Tr. 9. One of the EMT’s told her that

they had attempted a sternum rub when they arrived, but received no response, so

they administered Narcan. Tr. 9.

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      {¶5} When Utley first started talking to Brown, Brown was “a little

groggy” and Utley noted that there was a lot of commotion in the house. Tr. 10.

Brown had already signed off with the EMTs and indicated that she did not wish

to be transported to the hospital. Tr. 10. Utley testified that she spoke to Brown

for between 15 to 20 minutes and during that time, Brown became more

responsive and appeared to understand the questions asked. Tr. 11. At no point

during the conversation did Utley tell Brown that she was under arrest or that she

was not free to leave. Tr. 12. Utley asked Brown if she was using and was told

no. Tr. 12. Utley then asked Brown to show her arms to Utley and Utley

observed what appeared to be a fresh needle mark. Tr. 12. Brown told Utley that

the mark was from pulling a hair out. Tr. 12. Utley responded that she did not

believe Brown and told Brown to be honest. Tr. 12. Eventually Brown admitted

that she had used heroin. Tr. 12. Brown admitted that her boyfriend had injected

her with heroin in the bathroom earlier in the day. Tr. 13. Utley testified that she

did not arrest Brown on that day. Tr. 13. During the conversation one of the

EMTs was present the whole time, but Wheeler and Major Corwin were in and out

of the room.    Tr. 14.   After Brown’s boyfriend indicated that he had drug

paraphernalia in a book bag in the house, Brown showed them where it was. Tr.

15. While speaking with Brown, Utley was standing in front of Brown while

Brown was sitting on the couch. Tr. 16. The entire conversation occurred in the

living room of the home, where Brown resided. Tr. 18.

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      {¶6} On cross-examination, Utley testified that she was only dispatched to

the scene because the office had implemented a new program “that anytime that

there was an overdose that they would send the – the Drug Unit guys there so that

way we could preserve the evidence and talk to the – to the suspects and victims.”

Tr. 20-21. When Utley and Wheeler arrived at the home, they saw no one and

entered the home through the backdoor of the residence. Tr. 21. Utley testified

that when they arrived, the door was shut, that they did not knock, and that they

just opened the door and walked into the home. Tr. 21-22. No one at the

residence gave them permission to enter the home. Tr. 22. Utley and Wheeler

were dressed in plain clothes, but were wearing their badges around their necks.

Tr. 22. Utley did not identify herself to the EMTs, but did tell Brown that she was

with the Narcotics Unit. Tr. 22. When Utley arrived, she believed that Deputy

Fohl was already there, but she did not see him and did not know where he was.

Tr. 23. Utley testified that she then spoke to Brown from a distance of two to

three feet. Tr. 25. Utley testified that at one point she went outside to speak with

the boyfriend, but did not recall what she told Brown about leaving the couch

before she left. T.r 25. However, upon her return, Brown was still sitting on the

couch where Utley had left her. Tr. 25. Utley also admitted that she did not know

what she would have done if Brown were to get up and attempt to leave, but that

her normal response would be to stop someone trying to leave the scene. Tr. 27.

Utley testified that although she doesn’t know how long she was there, the EMTs

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arrived at 2:25 p.m. and Deputy Fohl arrived at 2:34 p.m. Tr. 31. The EMTs left

the scene at 3:45 p.m. and Deputy Fohl left at 3:42. Tr. 32-33. The EMTs left

before Utley and Wheeler . Tr. 33. Utley testified that when they entered the

residence, they had to go up a set of stairs as it was a split level type of home. Tr.

34. Utley encountered Brown’s mother, who owned the home, and she told them

Brown was in the living room and pointed them towards it. Tr. 34-35, 39.

       {¶7} Utley answered some questions from the court and indicated that at

the time they were dispatched to the home, they had no idea whether this was drug

related or not. Tr. 36. According to Utley, she and Wheeler had a 15 to 20 minute

drive to get to the home. Tr. 37. The sole purpose for her and Wheeler to be at

the home was to collect and preserve evidence as part of a criminal investigation.

Tr. 37. The whole time that Utley was there, the only thing the EMTs did was

stand around because they were done treating Brown. Tr. 38. Utley testified that

she believed they could just enter the home because the EMTs were called to

administer medical treatment and they already had an officer on the scene to

whom they might offer assistance. Tr. 40. Utley admitted that she and Wheeler

were not there to assist in the medical treatment. Tr. 41.

       {¶8} On redirect examination, Utley testified that the conversation was

“comfortable” and that she and Brown “were discussing things.” Tr. 42. On re-

cross examination, Utley testified that she escorted Brown outside when she



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wanted to smoke a cigarette. Tr. 45. Whenever Brown left the couch, Utley went

with her. Tr. 46.

        {¶9} The second and final witness for the State was Wheeler. Wheeler

testified that he was a detective with the Drug Task Force when the call was

received to go to Brown’s home. Tr. 50. Wheeler testified that they went to the

scene in response to the new office policy to respond to all possible overdoses to

collect evidence. Tr. 51-52. Wheeler indicated that upon the arrival at the house,

the first contact with a person was with an EMT who informed them that Narcan

was used. Tr. 53. At no time was Brown restrained, arrested, or told she was not

free to leave. Tr. 53. When they first started speaking with her, Brown appeared

to be a “little bit disoriented.” Tr. 53. Wheeler testified that he only spoke with

Brown for four to eight minutes before he left to speak to Brown’s boyfriend

outside. Tr. 54. When they arrived at the home, they saw the cruiser, but did not

know where Deputy Fohl was, so they entered the home and encountered the

EMTs.     Tr. 55.   According to Wheeler, he went and retrieved the backpack

without any assistance from Brown. Tr. 57. After he had secured the backpack,

Wheeler, Utley and Major Corwin spoke to Brown in the bathroom. Tr. 58.

Wheeler then obtained a written statement from Brown. Tr. 59. Wheeler could

not recall whether Brown ever asked if she was going to be arrested, but that he

had no intention of doing so on that day. Tr. 59. Wheeler believed that Deputy

Fohl was on the front porch talking to the family members. Tr. 60.

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      {¶10} On cross-examination Wheeler testified that when they arrived at the

residence, they just walked into the home.      Tr. 61.   When they were first

questioning Brown, both Wheeler and Utley were standing in front of her while

she sat on the couch. Tr. 61. At any given time, there were two or three officers

talking to Brown. Tr. 63. Wheeler testified that his permission to be in the home

came from his supervisor as a result of the call. Tr. 63. Wheeler stated that he

would have been surprised if Brown had wanted to leave because she was being

cooperative. Tr. 68.

      {¶11} At the end of the hearing, the trial court made the following

statements.

      The Court: There – there’s two issues I’m struggling with. I’ll
      give counsel to the end of the week to get me any additional legal
      authority on it.

      One issue I’m struggling with is the Officer’s entry into the
      house. Now, at that issue, and let -- let me say this cause Mr.
      Spitzer’s Motion is not – doesn’t clearly raise that issue but then
      the questioning raised that issue.

      Mr. Spitzer: We were unaware prior to that.

      The Court: So, I mean, if -- if either side thought it was
      necessary to present additional evidence that would be relevant
      to that issue, I would – you could make that request before the
      end of the week. Well, I mean, if – if he – if he’s in the house – if
      she’s in – if the Officers are in the house illegally, why wouldn’t
      the evidence that they encountered inside the house including
      the Defendant’s statement be suppressed?

      Mr. Spitzer: Well before –


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        The Court: So, I mean, I guess the – the – so that one’s a two
        part question is, you know, whether the Officer’s [sic]– is there a
        constitutional violation by being in the house when they went in
        without permission? And if so, are the statements suppressed?
        You know, so I mean, I – I would allow either side to present
        some legal authority on that before the end of the week and if –
        if either side believes there’s additional evidence that needs to be
        heard on that issue, I’d allow you to make that request before
        the end of the week.

        The second issue then, goes to whether the Defendant is in
        custody status for purposes of requiring Miranda. I don’t think
        there’s any question there’s an interrogation. You know, so the
        question is, is it a custodial interrogation? There’s no dispute
        that Miranda wasn’t provided. So there’s a question of whether
        she was in custody. If anyone wants to provide any legal
        authority on that by the end of the week, I’ll give you that
        opportunity then I’ll make a Ruling, you know thereafter.

Tr. 71-72.

        {¶12} On January 16, 2015, the State filed a memorandum in response to

the Court’s suppression issues. Doc. 30. The memorandum did not request any

further opportunity to present additional evidence to address the question raised by

the trial court. Id. The trial court did not see the memorandum prior to issuing its

ruling granting the motion to suppress on Tuesday, January 20, 2015.2 Doc. 31.

The next day, the State filed a motion for the trial court to reconsider its ruling so

that its memorandum could be considered. Doc. 32. The trial court addressed it at

a hearing on January 21, 2015, which had previously been scheduled to address a

2
 This court notes that the State’s response was time-stamped at 3:20, Friday, January 16, 2015. The ruling
was time-stamped as being filed at 2:50, Tuesday, January 20, 2015. Monday, January 19, 2015, was a
holiday, so the courthouse would have been closed. During the second hearing, the court indicated it had
not seen the State’s memorandum prior to issuing its ruling. 2Tr. 2.

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motion for intervention in lieu of conviction. 2Tr. 1-2. At that hearing the State

indicated that it intended to 1) file a motion for reconsideration, which was done,

and 2) file an appeal. 2Tr. 2. The trial court entered judgment on January 26,

2015, denying the motion for reconsideration. Doc. 33 at 3. Later that same day,

the State filed its notice of appeal from the January 20, 2015 judgment entry. Doc.

34. On appeal, the State raises the following assignments of error.

                           First Assignment of Error

      The Court abused its discretion when it improperly suppressed
      evidence sua sponte at the conclusion of the suppression hearing
      without the issue being raised by a party in writing.

                          Second Assignment of Error

      The Court erred when it suppressed the State’s evidence based
      on the warrantless entry of [Utley] and [Wheeler] into the home.

                           Third Assignment of Error

      The Court erred when it suppressed [Brown’s] statements.

      {¶13} In the first assignment of error, the State alleges that the trial court

erred by granting the motion to suppress on an issue that was sua sponte raised by

the trial court at the hearing. The State argues that this denies them due process

because they did not know of the issue prior to the hearing. The general rule in

Ohio is that a motion to suppress must make clear the grounds upon which the

motion is based so that the State may prepare its case and the trial court will know

the grounds of the challenge to rule on the evidentiary issues at the hearing and


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properly dispose of them. Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889

(1988). “Failure on the part of the defendant to adequately raise the basis of his

challenge constitutes a waiver of that issue on appeal.” Id. at 218.A trial court errs

by interjecting a new issue which is not supported by any evidence and basing its

decision to suppress the evidence on the new issue without giving the State the

opportunity to present evidence on the issue. Dayton v. Dabney, 99 Ohio App.3d

32, 649 N.E.2d 1271 (2d Dist. 1994). However, the trial court may expand the

scope of a suppression hearing beyond the issues specified in the motion to

suppress “so long as the matters within the expanded scope were material to the

suppression sought, and so long as the State had a reasonable opportunity to

prepare itself for the hearing.” State v. Blackburn, 2d Dist. Clark No. 3084, 1994

WL 95224 (Mar. 23, 1994) at 4. See also State v. Byrnes, 2d Dist. Montgomery

No. 25860, 2014-Ohio-1274 and State v. Walton, 5th Dist. Fairfield No. 97 CA

00063, 1998 WL 531865 (Mar. 26, 1998). When the trial court notes an issue not

previously raised by the written motion during the hearing on the motion to

suppress and that issue is material to the suppression sought, the trial court must

give the State a reasonable opportunity to prepare itself for addressing the issue at

the hearing before ruling on it. Byrnes, supra at ¶14. To fail to give the State that

opportunity is unfairly prejudicial and the motion to suppress must be reopened to

allow the State the opportunity to address the issue. Id. at ¶14-15.



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         {¶14} In this case, the issue raised by the motion to suppress had to do with

Miranda warnings. During the course of the hearings, evidence was presented that

the officers entered the home without a warrant for the sole purpose of conducting

a criminal investigation. The trial court raised the issue sua sponte and informed

the parties that they could address the issue later if they so wished. Prior to the

State’s memorandum being considered by the trial court and even though it was

filed prior to the ruling, the trial court proceeded to grant the motion to suppress

on the basis of the warrantless entry and on the custodial interrogation without

providing Miranda warnings.3 The failure of the trial court to actually give the

State an opportunity to be heard on the issue of the warrantless search raised sua

sponte at the suppression hearing denied the State due process. Therefore, the trial

court erred and the first assignment of error is sustained.

         {¶15} Since the first assignment of error indicated that the State was denied

the opportunity to be heard on all of the issues, the judgment must be reversed and

the State must be given the opportunity to be heard. The remaining assignments

of error are thus rendered moot and this court need not address the second and

third assignments of error at this time. App.R. 12(A)(1)(c).



3
  This court notes that there was a second judgment entry filed in response to the motion for reconsideration
that did address the memorandum, but that judgment entry denied the motion for reconsideration and was
not an appealable order. The State only certified the January 20, 2015 entry as the basis of the appeal, so
that is the only entry we will address. Doc. 34. If the trial court had granted the motion for
reconsideration, vacated the January 20, 2015 judgment, and reached the same conclusion after
considering the State’s argument, the January 26, 2015 judgment would be the one to be reviewed.

                                                   -12-
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       {¶16} Having found error prejudicial to the State, the judgment of the Court

of Common Pleas of Marion County is reversed and the matter is remanded for

further proceedings in accord with this opinion.

                                                              Judgment Reversed
                                                                 And Remanded


ROGERS, P.J. and PRESTON, J., concur.

/hlo




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