[Cite as State v. Mattocks, 2013-Ohio-4965.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellant,           :
                                                         CASE NO. 2013-P-0015
        - vs -                                  :

PIERRE W. MATTOCKS,                             :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
00812.

Judgment: Reversed and remanded.


Victor Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

Patricia J. Smith, 9442 State Route 43, Streetsboro, OH 44241 and Sylvia A. Rhodes,
P.O. Box 514, Kent, OH 44240 (For Defendant-Appellee).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals from the Judgment Entry of

the Portage County Court of Common Pleas, granting defendant-appellee, Pierre W.

Mattocks’, Motion to Suppress. The issue to be decided in this case is whether exigent

circumstances to enter a defendant’s home without a warrant exist when police officers

enter the home after seeing the defendant standing inside, facing the officers and
holding a gun. For the following reasons, we reverse and remand the decision of the

court below.

      {¶2}     On November 29, 2012, the Portage County Grand Jury indicted Pierre for

Resisting Arrest, a felony of the fourth degree, in violation of R.C. 2921.33(C)(1);

Domestic Violence, a misdemeanor of the first degree, in violation of R.C. 2919.25(A);

and Having Weapons While Under Disability, a felony of the third degree, in violation of

R.C. 2923.13(A)(2).

      {¶3}     On December 26, 2012, Pierre filed a Motion to Suppress, in which he

requested that evidence obtained as a result of the warrantless entry of his home, his

arrest, and the subsequent search be suppressed. He argued that the police officers

lacked probable cause to arrest him and had no justification for entering or searching

his residence, where they recovered two firearms.

      {¶4}     A suppression hearing was held on January 14, 2013. The sole testimony

was given by Sergeant Thomas Eskridge of the Ravenna Police Department.              He

testified that on November 22, 2012, at approximately 1:00 a.m., he responded to a

domestic violence call at 421 Myrtle Street in Ravenna. According to a 911 call from

Patience Mattocks, her husband, Pierre Mattocks, came home intoxicated, was

“pushing her around,” destroyed items in the home, pushed her outside, and locked her

out of the home. Patrolman Holloway and Lieutenant Mullen also responded to the call.

      {¶5}     Upon arriving at the home, Sergeant Eskridge met with Patience, who

stated that she and Pierre were arguing about Pierre drinking and driving with a

suspended license. Patience stated that Pierre “shoved her so hard it knocked her to




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the ground.” Patience threatened to call the police and Pierre held her to the bed and

took her cell phone away. Patience told the officers that she wanted Pierre arrested.

       {¶6}      The officers knocked on several windows and doors at the home, received

no response, and then had dispatch call Pierre. Pierre told dispatch he would not come

to the door and had done nothing wrong. Dispatch called a second time and asked

Pierre to bring Patience some personal belongings so she could stay elsewhere. Pierre

stated that he would comply but that when he came to the door, the police “better be off

his property.”

       {¶7}      Sergeant Eskridge, Patrolman Holloway, and Patience walked to a sliding

glass door located at the rear of the house and discovered that it was locked. Patience

called Pierre on her cell phone and he stated that he was on his way downstairs with

her belongings.       Sergeant Eskridge observed Pierre walk down a stairwell and

approach the glass door, holding a flashlight, which he shined in Sergeant Eskridge’s

eyes. After moving out of the light, Sergeant Eskridge noticed that Pierre was holding a

handgun directly beside his right thigh. Sergeant Eskridge pushed Patience off of the

porch, drew his gun, and ordered Pierre to drop the gun, to which Pierre responded by

saying “Castle Law.”

       {¶8}      After several orders to drop the gun, with which Pierre did not comply, he

eventually said “okay,” and turned his back partially to the officers. He put his left hand

up and raised the gun above his head. Sergeant Eskridge testified that he initially could

not tell what Pierre was doing, but then noticed that he was “manipulating” the gun

above his head. Pierre released the magazine from the weapon and set it on the

kitchen table. He took the slide off of the top of the gun and placed the gun and slide on




                                              3
the table. He walked over to the glass sliding door, unlocked it, turned away, and

started to walk back through the house. Sergeant Eskridge ordered him to the ground,

he did not comply, and the officers entered the house. Police ultimately handcuffed

Pierre, following a struggle.

       {¶9}   Afterward, Sergeant Eskridge retrieved the gun and magazine, which

contained sixteen hollow point bullets. Around the corner, he also found an unloaded

shotgun.

       {¶10} Sergeant Eskridge put Pierre in his cruiser and transported him to jail.

Patience then gave a written statement to Patrolman Holloway, indicating that Pierre

had been home when she arrived and was sleeping.

       {¶11} On cross-examination, Sergeant Eskridge testified that he did not observe

any injuries on Patience on the date of the incident. He also indicated that he did not

intend to arrest Pierre at the time he began knocking on the door, instead, he wanted to

get Pierre’s side of the story. He explained that Pierre never directly pointed the gun at

him or anyone else.

       {¶12} In the trial court’s February 15, 2013 Judgment Entry, granting Pierre’s

Motion to Suppress, the court made factual findings consistent with the foregoing

testimony.

       {¶13} In its legal conclusions, the trial court held that the officers did not have a

legal basis to enter Pierre’s home and arrest him. It held that R.C. 2935.03, which

allows for warrantless arrests in certain domestic violence cases, did not apply, since no

written statement of the allegations was taken prior to the entry of Pierre’s home and

Sergeant Eskridge stated that it was not his intention to arrest the defendant.




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        {¶14} The court also held that “[e]ntrance [into the home] was gained without a

warrant, without consent and without any articulable exigent circumstances.” The court

found that Sergeant Eskridge never articulated his rationale for entering the residence.

The court held that the search of the residence was made during an unlawful arrest, did

not fall under the exceptions to the warrant requirement, and that all illegally seized

items must be suppressed.

        {¶15} The State filed a Motion to Stay the Execution of Judgment on February

21, 2013, which was granted by the trial court.

        {¶16} The State timely appeals and raises the following assignments of error:

        {¶17} “[1.] The Portage County Court of Common Pleas erred in finding the

state failed to establish exigent circumstances to justify a warrantless entry of Mattocks’

home.

        {¶18} “[2.]   The Portage County Court of Common Pleas erred in granting

Mattocks’ motion to suppress evidence that was seized after a lawful entry and incident

to arrest.”

        {¶19} “The trial court acts as trier of fact at a suppression hearing and must

weigh the evidence and judge the credibility of the witnesses.” (Citations omitted.)

State v. Ferry, 11th Dist. Lake No. 2007-L-217, 2008-Ohio-2616, ¶ 11. “[T]he trial court

is best able to decide facts and evaluate the credibility of witnesses.” (Citation omitted.)

State v. Wagner, 11th Dist. Portage No. 2010-P-0014, 2011-Ohio-772, ¶ 12. “The court

of appeals is bound to accept factual determinations of the trial court made during the

suppression hearing so long as they are supported by competent and credible

evidence.” State v. Hines, 11th Dist. Lake No. 2004-L-066, 2005-Ohio-4208, ¶ 14.




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“Once the appellate court accepts the trial court’s factual determinations, the appellate

court conducts a de novo review of the trial court’s application of the law to these facts.”

(Citations omitted.) Ferry at ¶ 11.

        {¶20} As an initial matter, we note that Pierre argues that the State is precluded

from making any of the arguments it raised in its brief, due to issue preclusion, since

they were not raised below.        During the suppression hearing, the State presented

testimony specifically regarding the danger to the officers from Pierre’s conduct, argued

to the court that Pierre posed a threat to the officers’ safety, and indicated that the

weapons were seized after Pierre’s arrest. The exigent circumstances issue and the

basis for the seizure of the items were specifically ruled upon by the trial court. We find

that these issues were sufficiently raised below by the State for this court to consider

them.

        {¶21} In its first assignment of error, the State argues that the officers were

justified in entering Pierre’s home without a warrant since exigent circumstances

existed. It asserts that there were concerns for both Patience and the officers’ safety,

due to the fact that Pierre had approached the area where they were standing outside of

the door while holding a gun.

        {¶22} Pierre asserts that there were no exigent circumstances, since, at the time

the officers entered the home, Pierre had disabled the gun, placed it on the table, and

did not pose a threat to anyone.

        {¶23} A “presumption of unreasonableness * * * attaches to all warrantless home

entries.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732

(1984); State v. Sutcliffe, 11th Dist. Portage No. 2008-P-0047, 2008-Ohio-6782, ¶ 18.




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       {¶24} The Fourth Amendment requires that “[t]he right of the people to be

secure in their * * * houses * * * shall not be violated.” “In terms that apply equally to

seizures of property and to seizures of persons, the Fourth Amendment has drawn a

firm line at the entrance to the house. Absent exigent circumstances, that threshold

may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573,

589-590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). “The burden is on the government to

demonstrate     exigent    circumstances     that   overcome”      the   presumption      of

unreasonableness for warrantless home searches. Welsh at 750.

       {¶25} “‘Exigency’ denotes the existence of ‘real immediate and serious

consequences’ that would certainly occur were a police officer to postpone action to get

a warrant.” State v. Stanberry, 11th Dist. Lake No. 2002-L-028, 2003-Ohio-5700, ¶ 14,

citing Welsh at 751.

       {¶26} Exigent circumstances have been found to exist, and a warrant for a

search or entry into a home unnecessary, when police must conduct a search to avoid

destruction of evidence, as well as in situations where the police are faced with a “need

to protect or preserve life or avoid serious injury.” Id. at ¶ 15, citing Mincey v. Arizona,

437 U.S. 385, 391-392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).                  The exigent

circumstances exception applies when “law enforcement officers * * * have reasonable

grounds to believe that there is [an] immediate need to protect their lives or others.”

State v. Pape, 11th Dist. Ashtabula No. 2004-A-0044, 2005-Ohio-4657, ¶ 23; State v.

Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960, ¶ 48 (2nd Dist.)

(exigent circumstances are present when “someone inside [a home] poses a danger to

the police officer’s safety”).   “While the Fourth Amendment requires that residential




                                             7
thresholds and the sanctity of the home be respected, that is reasonably overcome by

threats to the officer’s safety that a suspect’s conduct creates.” State v. Barber, 2nd

Dist. Montgomery No. 19017, 2002-Ohio-3278, ¶ 17.

       {¶27} Under the State’s argument, Sergeant Eskridge and the other officers

were permitted to enter Pierre’s home because they were faced with a danger to their

safety, as well as Patience’s safety, since Pierre did not drop the handgun he was

holding upon the officer’s command. We agree.

       {¶28} The fact that a firearm may be located within a private home is not, by

itself, sufficient to create an exigent or emergency circumstance. Sharpe at ¶ 50, citing

United States v. Keyes, 6th Cir. No. 03-6041, 2005 U.S. App. LEXIS 16783, 14 (Aug. 9,

2005). However, “a risk of danger from its use” does create an exigent circumstance.

Id. Exigent circumstances exist when an officer relates facts to support a conclusion

that “the suspect was armed and likely to use a weapon or become violent.” United

States v. Bates, 84 F.3d 790, 795 (6th Cir.1996) (the presence of a weapon in the home

can create an exigency when coupled with “threats to an officer’s safety, a criminal

record reflecting violent tendencies, or a verified reputation of a suspect’s violent

nature”).

       {¶29} In the present matter, the officers faced a direct threat to their safety,

given that they were in a dangerous situation involving a potentially violent individual

with a firearm who refused to cooperate with police instructions. The officers had been

called to the scene based on domestic violence allegations and were informed by

Patience that she had been shoved to the ground by Pierre and prevented from calling




                                           8
police. They were also aware that Pierre had informed dispatch that, when he came

downstairs, the police “better be off his property,” which could be perceived as a threat.

       {¶30} In addition to these facts establishing a risk of confrontation, Pierre

approached the glass door, where the officers were standing, holding a flashlight and a

gun.   Pierre was aware that the officers were outside from his conversations with

dispatch. Given these circumstances, Pierre chose to shine a flashlight in the officers’

faces and held a loaded gun while facing in their direction. He was repeatedly ordered

to drop the weapon but did not immediately obey this direction. When he finally did say

“okay,” he performed a series of “manipulations” with the gun.

       {¶31} Although Pierre did ultimately remove the magazine, place the gun on the

table, and unlock the door, the officers had experienced a direct threat to their safety, as

well as Patience’s, and were unaware whether Pierre would go back to the table and

pick up the gun or obtain another weapon. Given the events that had taken place, it

was not unlikely that Pierre would act in a violent, dangerous, or aggressive manner.

       {¶32} It is clear from Sergeant Eskridge’s testimony that he reasonably believed

such a danger existed which must be prevented through entry into the home.

Immediately upon observing the gun, he pushed Patience off of the porch and drew his

pistol. He ultimately found the threat to be great enough that he warned Pierre that if he

did not drop the weapon, Eskridge “was going to kill him.”

       {¶33} In State v. Burchett, 2nd Dist. Montgomery No. 20167, 2004-Ohio-3101,

under similar circumstances, the court held that exigent circumstances existed based on

concerns for officer safety. In Burchett, the defendant answered his door while holding

a gun pointed toward police. After seeing the officers, he pulled the gun back inside




                                             9
and placed it on the floor, while police entered. The court held the following: “The

officers were not required to retreat in the face of a threat with a firearm. They did not

know how many other people or weapons were inside the apartment. Nor did they

know whether Burchett was withdrawing from the doorway merely to find a better

location from which to fire his weapon.” Id. at ¶ 21. As noted above, the officers in this

case faced a continuing threat of harm, based both on the facts that were known to

them and the potential risk of Pierre’s future conduct. This risk was heightened by

Pierre’s repeated exclamation of the phrase “Castle Law.” This statement conveyed

Pierre’s position that he was entitled to use his weapon to defend himself from

perceived intrusions to his home. It further justified the officers’ belief that they were in

imminent danger and that there was a legitimate risk that Pierre would use the weapon.

       {¶34} Based on the foregoing, the trial court erred in holding that there were no

articulable exigent circumstances for the warrantless entry into Pierre’s home.

       {¶35} The first assignment of error is with merit.

       {¶36} In its second assignment of error, the State argues that the trial court

erred by suppressing the firearms found in Pierre’s home, since they were obtained by a

search incident to a valid arrest and the items were in plain view.

       {¶37} The search incident to arrest exception “allows officers to conduct a

search that includes an arrestee’s person and the area within the arrestee’s immediate

control.” State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 11,

citing Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685

(1969).    This exception “derives from interests in officer safety and evidence




                                             10
preservation that are typically implicated in arrest situations.” Arizona v. Gant, 556 U.S.

332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), citing Chimel at 763.

      {¶38} Pierre first argues that the search incident to arrest exception does not

apply because there was no valid arrest. It appears, however, that there was a basis to

conduct an arrest for domestic violence. R.C. 2935.03 allows for warrantless arrests in

certain domestic violence cases. See R.C. 2935.03(B)(3)(a)(ii) (an officer may arrest an

individual without a warrant, when he, based on his “own knowledge and observation of

the facts and circumstances [or] * * * any reasonably trustworthy information given to

the peace officer by the alleged victim of the alleged incident of the offense * * *,

concludes that there are reasonable grounds to believe that the offense of domestic

violence * * * has been committed and reasonable cause to believe that the person in

question is guilty of committing the offense”). Although Sergeant Eskridge initially noted

that he did not plan on arresting Pierre for domestic violence, this does not mean that

reasonable grounds to believe that Pierre committed the offense did not exist. Patience

explained to police that she had been shoved to the ground multiple times, had been

prevented from calling police, and had been locked out of the house by Pierre. The

officers encountered Pierre acting in a threatening manner and with a weapon. This

provided sufficient grounds to conduct an arrest. Moreover, although they did not have

a warrant to enter the house, as noted above, they were allowed to enter based on the

exigent circumstances of this case.

      {¶39} In addition, the firearms were recovered while Pierre was still inside of the

home. He was arrested in the same area where he had put down the gun, with the




                                            11
other located in a nearby corner. Based on these facts, there is evidence to support

that the guns were recovered during a valid search incident to arrest.

      {¶40} The plain view doctrine also justified the seizure of the guns. Both were in

plain view in the kitchen area, where the police were. “In order for evidence to be

seized under the plain view exception to the search warrant requirement 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 to the seizing authorities.” State v.

Williams, 55 Ohio St.2d 82, 377 N.E.2d 1013 (1978), paragraph one of the syllabus. In

this case, police were legally inside of the home and saw the weapons while

effectuating the arrest of Pierre. Based on Pierre’s brandishing of the weapon while

facing police and the subsequent charges of unlawful possession of the weapons, the

police were entitled to retrieve these items from the home.

      {¶41} The second assignment of error is with merit.

      {¶42} Based on the foregoing, the Judgment Entry of the Portage County Court

of Common Pleas, granting Pierre’s Motion to Suppress, is reversed and this cause is

remanded for further proceedings consistent with this opinion.       Costs to be taxed

against appellee.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


                            _________________________




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COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


       {¶43} I concur with the well-reasoned opinion of the majority, but write

separately to emphasize that the search in this case was conducted pursuant to valid

consent. I strongly support the constitutional and fundamental right of citizens to be

safe in their homes, and free from warrantless searches by the police. However, the

power of the police to conduct warrantless searches pursuant to valid consent is

longstanding.

       {¶44} “‘To establish the consent exception to the probable-cause and warrant

requirements of the Federal and Ohio Constitutions, the state has the burden of

establishing by “clear and positive” evidence that consent was freely and voluntarily

given.’ State v. Lett, 11th Dist. No. 2008-T-0116, 2009-Ohio-2796, ¶32, citing Bumper

v. North Carolina, 391 U.S. 543, 548, * * * (1968) and State v. Posey, 40 Ohio St.3d

420, 427, * * * (1988). ‘“Clear and positive” evidence is the equivalent of clear and

convincing evidence.’     State v. Jones, 187 Ohio App.3d 478, 2010-Ohio-1600 (6th

Dist.), ¶50, * * *, citing State v. Danby, 11 Ohio App.3d 38, 41, * * * (6th Dist.1983).”

       {¶45} “‘Whether a consent to search was voluntary * * * is a question of fact to

be determined from the totality of the circumstances.’ Lett, 2009-Ohio-2796, ¶32, citing

Schneckloth v. Bustamonte, 412 U.S. [218] at 248-249 [(1973)] and State v. Chapman,

97 Ohio App.3d 687, 691, * * * (1994).” (Parallel citations omitted.) State v. Starkey,

11th Dist. Portage No. 2012-P-0038, 2012-Ohio-6219, ¶33-34.

       {¶46} The totality of the circumstances in this case establish, by clear and

positive evidence, that the search of the Mattocks’ home was conducted pursuant to

valid consent, given by Patience Mattocks. She had been locked out of the marital



                                             13
home by her husband. She had every right to grant the police access to the home, and

did so. The glass door was locked. Dispatch asked Mr. Mattocks to come to the door,

so Mrs. Mattocks could retrieve belongings to stay elsewhere. He complied – but did so

displaying a weapon.    This indicated an apparent threat to the officers and Mrs.

Mattocks, even when he placed the gun and its magazine on the table.

      {¶47} I concur.




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