[Cite as State v. Roberson, 2012-Ohio-5106.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                   GREENE COUNTY

STATE OF OHIO                                      :
                                                   :     Appellate Case No. 2010-CA-66
        Plaintiff-Appellee                         :
                                                   :     Trial Court Case No. 2009-CR-834
v.                                                 :
                                                   :
CORDERO D. ROBERSON                                :     (Criminal Appeal from
                                                   :     (Common Pleas Court)
        Defendant-Appellant                        :
                                                   :
                                                ...........

                                               OPINION

                           Rendered on the 2nd day of November, 2012.

                                                ...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE R. HAYDEN, Atty. Reg.
#0082881, Greene County Prosecutor’s Office, 55 Greene Street, First Floor, Xenia, Ohio
45385
      Attorney for Plaintiff-Appellee

BRADLEY S. BALDWIN, Atty. Reg. #0071086, Baldwin, Valley & Wallace, LLC, 854 East
Franklin Street, Dayton, Ohio 45459
       Attorney for Defendant-Appellant

                                               .............

FAIN, J.

        {¶ 1}     Defendant-appellant Cordero Roberson appeals from his conviction for
                                                                                            2


Receiving Stolen Property and the imposition of community control sanctions. Roberson

contends that the trial court erred in overruling his motion to suppress evidence of a firearm

that was obtained by police during a warrantless search of his suitcase in the living room of an

apartment while he was showering in the bathroom.

       {¶ 2}    We conclude that the trial court erred in finding that exigent circumstances

existed that permitted the officers to conduct a warrantless search of Roberson’s suitcase when

the officers had the apartment and suitcase secured, the alleged victim was safely outside the

apartment, and Roberson was in the bathroom shower. Accordingly, the judgment of the trial

court is Reversed, and this cause is Remanded for further proceedings.



      I. Officers Search Roberson’s Suitcase After They Secured The Apartment

       {¶ 3}    Fairborn police officers Shane Hartwell and Joseph Pence were dispatched to

1800 Ironwood Drive, in Fairborn, on a report of domestic violence by a man against a

woman. The report was that the man had threatened the woman with a firearm.

       {¶ 4}    Officers Hartwell and Pence arrived at about the same time. The alleged

victim met the officers outside the residence. She confirmed that a gun had been involved

and told the officers that Roberson, who was staying with her at the time, was in the shower in

the bathroom of her apartment. The victim explained that the gun was either with Roberson

in the bathroom or in one of two bags in the living room that belonged to Roberson. The

victim gave the officers permission to enter her apartment and contact Roberson. For her

safety, she remained outside the apartment.

       {¶ 5}    The officers knocked on the door of the apartment, but received no response
                                                                                         3


from Roberson. The officers then entered the apartment with their guns drawn. The officers

stood inside the front living room and made multiple announcements for Roberson to come

out and speak with them. The officers could hear loud music coming from the bathroom,

and the sound of the shower running. Roberson did not emerge from the bathroom at this

time or respond to the officers’ announcements.

       {¶ 6}    The officers determined that no one was in the living room or in an attached

kitchen. They did not look in the bedroom, which would have required them to walk by the

bathroom door. The officers decided to check the bags in the living room, one of which was

a book bag, and one of which was a suitcase. The suitcase was open, but a flap was covering

the contents. While Officer Pence was watching the bathroom door with his gun drawn,

Officer Hartwell searched Roberson’s suitcase and found a Colt .380 semiautomatic firearm

wrapped inside a pair of men’s underwear, underneath the suitcase flap. Officer Hartwell

rendered the gun safe, making sure that it was not loaded.

       {¶ 7}    Officer Pence then knocked on the door to the bathroom, yelling for Roberson,

 who finally emerged from the bathroom with his hands in the air. Officer Pence handcuffed

Roberson and talked to him in the kitchen, while Officer Hartwell contacted dispatch to run

the serial number on the gun. Officer Hartwell was told that the gun had been reported

stolen. At about this time, Officer Pence gave Roberson oral warnings under Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

       {¶ 8}    When questioned at the scene, Roberson initially denied that there had been

any kind of argument or dispute between himself and the victim. Later, he admitted that there

had been an argument, but denied having made threats or having pulled a gun on the victim.
                                                                                          4


He said “he knew nothing of any type of weapon nor did he own one.” Tr. 29.

       {¶ 9}    Roberson was taken into custody and transported to the Fairborn Police

Department. While there, Officer Pence administered written Miranda warnings. Roberson

then admitted that he had purchased the gun from a friend, and it was his.



                                II. Course of the Proceedings

       {¶ 10} Roberson was charged by indictment with Receiving Stolen Property, in

violation of R.C. 2913.51(A), a felony of the fourth degree. Roberson filed a motion to

suppress evidence based on the fact that the evidence against him was obtained without a

warrant. Following an evidentiary hearing, the trial court overruled his motion to suppress.

Roberson then pled no contest, was found guilty, and was sentenced to community control

sanctions for a period of time not exceeding five years. He is appealing from his conviction

and sentence.

       {¶ 11} Roberson’s assigned appellate counsel submitted a brief under the authority of

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel not having

found any potential assignments of error having arguable merit. We concluded that there was

one potential assignment of error – that the trial court erred in overruling Roberson’s motion

to suppress – that is not so lacking in arguable merit as to be wholly frivolous. Accordingly,

the Anders brief filed on Roberson’s behalf was rejected, and new appellate counsel was

assigned. State v. Roberson, 2d Dist. Greene No. 2010-CA-66, 2012-Ohio-1237.



     III. There Were No Exigent Circumstances Necessitating A Warrantless Search
                                                                                             5


        {¶ 12} Roberson’s sole assignment of error states:

                APPELLANT’S MOTION TO SUPPRESS WAS IMPROPERLY

        OVERRULED BECAUSE THE EVIDENCE WAS GATHERED BY AN

        UNCONSTITUTIONAL, WARRANTLESS SEARCH.

        {¶ 13} In considering a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve factual questions and evaluate the credibility of the

witnesses. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Consequently, in

reviewing a trial court's decision on a motion to suppress, an appellate court must accept the

trial court's findings of fact if they are supported by competent, credible evidence. State v.

Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994), citing State v. Schiebel, 55

Ohio St.3d 71, 564 N.E.2d 54 (1990). An appellate court, however, determines as a matter of

law, without deferring to the trial court's conclusions, whether the law has been appropriately

applied to those facts. Id., citing State v. Claytor, 85 Ohio App.3d 623, 627, 620 N.E.2d 906

(4th Dist.1993).

        {¶ 14} The trial court overruled Roberson’s motion to suppress evidence obtained

during the warrantless search, concluding that the officers conducted their search during

exigent circumstances, namely to ensure officer safety. In its entry overruling the motion to

suppress, the trial court found, in part:

                For assuring their safety and the safety of anyone in the area, the

        officers were justified in determining whether or not the firearm alleged to have

        been used against the victim in this case was on his person or in the bag as

        previously identified by their informant. It was this concern for officer safety
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that the officers believed they needed to search the Defendant’s suitcase in

order to determine where the firearm was located.

       ***

       This Court has determined that the emergency was ongoing at the time

the officers chose to conduct the search. The Court further finds that the scope

of the search did not exceed that reasonably necessary to protect the safety of

the officers. In this case the officers had been specifically advised that the gun

was either on the person of the Defendant in the closed bathroom or in his

suitcase or backpack.

       Upon entering the apartment the facts provided by the named residential

informant were confirmed as the Defendant was indeed in the shower and in

the living room was a suitcase and backpack. At this time the officers were

faced with a circumstance unknown to them as to whether or not the Defendant

was armed and could cause danger to their persons. A search of the suitcase if

revealing a firearm would assure the officers that the Defendant was unarmed

and they could proceed safely with that knowledge. Likewise, if a search of

the suitcase and backpack failed to reveal a firearm the officers could be

reasonably assured that the Defendant had the gun on his person and their

response to the Defendant would have been of a different nature.

       ***

       Upon duly considering this matter, the Court finds that exigent

circumstances have been established by the State which required a reasonable
                                                                                             7


          intrusion into the Defendant’s property to safeguard the police on the scene.

                 The evidence supporting the finding is (1) the officers had been

          dispatched to the apartment based upon threat with a gun. (2) Upon arriving at

          the scene they spoke with the alleged victim of the crime who indicated that the

          suspect was in the bathroom taking a shower, that he was possibly armed and

          the firearm was either on his person or in a suitcase or bag in the living room.

          (3) Upon the officers’ consensual entry into the residence they confirmed the

          facts provided by the informant by determining that the suspect was behind a

          closed bathroom door and that there was a suitcase and backpack just inside the

          living room. (4) The suspect had failed on multiple occasions to acknowledge

          the presence of the officers. Dkt. 37, pp. 3-5.

          {¶ 15} The Fourth Amendment to the Constitution of the United States commands:

                 The right of the people to be secure in their persons, houses, papers,

          and effects, against unreasonable searches and seizures, shall not be violated,

          and no Warrants shall issue, but upon probable cause, supported by oath or

          affirmation, and particularly describing the place to be searched, and the

          persons or things to be seized.

          {¶ 16} The Fourth Amendment is made applicable to the states through the

Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 782 (1949),

overruled on other grounds in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081

(1961).     For violations of the Fourth Amendment, courts are commanded to apply the

exclusionary rule, suppressing use of any evidence that was illegally obtained. Mapp at 655.
                                                                                             8


       {¶ 17} Fourth Amendment searches without a warrant are per se unreasonable and

illegal in the absence of an exception to the warrant requirement. Katz v. United States, 389

U.S. 347, 357, 88 S.Ct. 507, 19 L. Ed.2d 576 (1967); State v. Cosby, 177 Ohio App.3d 670,

2008-Ohio-3862, 895 N.E.2d 868, ¶ 16 (2d Dist.).           The Supreme Court of Ohio has

recognized seven exceptions including the “ ‘presence of exigent circumstances.’ ” State v.

Price, 134 Ohio App. 3d 464, 467, 731 N.E.2d 280 (9th Dist.1999). (Citation omitted.)

       {¶ 18} “The exigent or emergency circumstances exception justifies a warrantless

entry in a variety of situations, including when entry into a building is necessary to protect or

preserve life, to prevent physical harm to persons or property, or to prevent the concealment or

destruction of evidence, or when someone inside poses a danger to the police officer's safety.”

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

(Citations omitted.) “In order to justify an exception to the warrant requirement, the costs

involved in obtaining a warrant must be sufficiently significant to justify avoiding the delay

inherent in procuring a warrant.” Id. at ¶ 29. “[T]he state bears the burden of proving that a

warrantless search or seizure meets Fourth Amendment standards of reasonableness.”

Maumee v. Weisner, 87 Ohio St.3d 295, 297, 720 N.E.2d 507 (1999) (Citation omitted.)

       {¶ 19} Officers Hartwell and Pence testified at the suppression hearing. Officer

Hartwell explained his decision to search the bags for a weapon:

               Q. Okay. When you searched that bag – why did you search the bag

       looking for the gun?

               A. Because we wanted to make sure that he didn’t have it on him and

       was in the bathroom arming himself while we’re making our announcements.
                                                                                            9


                 Q. Okay. So if you had searched the bag and not found the gun, what

       would have been your assumption?

                 A. That he would have had the gun.

                 ***

                 Q. The question was this, Officer Hartwell, if you had not found the gun

       that the victim reported that the Defendant had pulled on her in that bag, what

       would your fear have been? Let me put it that way.

                 A. That he would have had the gun on him and we would approach in a

       totally different way. Tr. 19-20.

       {¶ 20} Officer Pence explained the decision this way:

                 Q. Why didn’t you just barge into the bathroom without looking in the

       suitcase? Why didn’t you just go on in there?

                 A. If he had a weapon, going into a small bathroom like that would

       have been – it would have been unsafe. It could have ended with us being shot.

        Tr. 39-40.

       {¶ 21} On cross-examination, Officer Hartwell was questioned about the need to

search the suitcase, considering that it was in the living room with them while Roberson was

in the shower:

                 Q. Okay. So when you entered the apartment [the victim] was outside

       and you had your guns drawn, correct?

                 A. Correct.

                 Q. And you secured the living room, the kitchen, and all the area that
                                                                                 10


you could see, correct?

        A. Correct.

        Q. And the bag was sitting on the floor, correct?

        A. Yes.

        Q. And the bag – there was no one that could get to the bag besides

yourself and Officer Pence, correct?

        A. Correct.

        Q. So the bag was secure. No one could get to the bag besides yourself

and Officer Pence?

        A. Well, I mean, someone could have got to it if they wanted to.

        Q. But they would have to get through you or Officer Pence to get to

that bag, correct?

        A. No. Once we had seen off to the kitchen, we were staying back

basically between the front door and the bags making our announcements for

Mr. Roberson to come out of the bathroom.

        Q. Okay. Either yourself or Officer Pence could have secured that bag,

stood beside it to make sure that no one opened that bag, is that correct?

        A. I mean, there’s a potential that someone could have come out and

fought their way to it, yes.

        Q. But you could have secured that bag. Is it possible for you to have

secured that bag?

        A. Looking back, we could have maybe pulled [it] out into the hallway.
                                                                                        11


        Tr. 17-18.

       {¶ 22} Officer Pence was also cross-examined on the same subject:

               Q. And, in this case, [the victim] was outside, correct?

               A. Correct.

               Q. And you had secured the living room, correct?

               A. Correct.

               Q. And you had your guns drawn so you yourself, were as secure as you

       could be, correct?

               A. Correct.

               Q. And instead of – and you were standing by the suitcase, correct?

               A. Correct.

               Q. So no one could come and open that suitcase? No one could get into

       the contents of that suitcase without going through yourself or Officer

       Hartwell, correct?

               A. That is correct. Tr. 38.

       {¶ 23} On cross-examination, Officer Pence further explained that the apartment was

secure while Roberson was in the shower:

               Q. So Miss Austin had stated that the gun was either with Mr. Roberson

       in the bathroom or in the bag, correct?

               A. That is correct.

               Q. And you had secured the apartment as well as you could at that

       time?
                                                                                           12


                  A. Correct.

                  Q. So if he were to come out of the bathroom, you or Officer Hartwell

          would be able to observe him coming out of the bathroom, correct?

                  A. Correct.

                  Q. So you could have waited for him to exit the bathroom and still had

          that secure, correct?

                  A. Correct. Tr. 40.

          {¶ 24} The issue is close. As in many Fourth Amendment cases, there are a number

of competing interests. As the trial court noted, this Court has a long history of concern for

officer safety.     State v. Kolb, 2d Dist. Montgomery No. 20601, 2005-Ohio-1209, ¶ 39.

However, the important interest in officer safety cannot be used as a talisman to allow

warrantless searches under any circumstance. We are guided by the principle that searches

without a warrant are per se illegal in the absence of an exception to the warrant requirement.

It is the State’s burden to demonstrate that an exception to the warrant requirement exists

under the particular facts of the case before us.

          {¶ 25} At the close of the suppression hearing, counsel for the State argued that the

exigent circumstance was the weapon itself. Tr. 46. However, the mere presence of firearms

does not create an exigent circumstance. United States v. Johnson, 22 F.3d 674, 680 (6th

Cir.1994); State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960, at ¶ 50 (2d

Dist.).

          {¶ 26} Furthermore, we do not agree that the search of the suitcase necessarily would

increase officer safety. The search of the suitcase would result in one of two scenarios.
                                                                                               13


First, if a firearm was found in the suitcase, then the firearm had already been secured by the

police and therefore the firearm posed no immediate risk to anyone, including the officers.

Under this scenario, the search of the suitcase would do nothing to increase officer safety.

We acknowledge that the discovery of the gun in the suitcase may have provided the police

with additional comfort or relief as they ultimately approached the bathroom to get Roberson

to exit. But the search of the suitcase itself in an apartment that had already been secured

would not increase officer safety.

       {¶ 27} On the other hand, discovery that the weapon was not in the suitcase would do

nothing to secure the safety of the officers “as the whereabouts of the gun would still be

unknown.” State v. Simmons, 4th Dist. Highland No. 05CA4, 2006-Ohio-953,¶ 43. While it

is true that the discovery that the gun was not located in the suitcase may have put the officers

on heightened alert that Roberson may have the gun on his person in the bathroom, the

officers had already been made aware that this was a possibility. Indeed, beginning with their

entry into the apartment, the officers had proceeded with their guns drawn, as if Roberson had

the gun on his person. This is completely understandable given that police officers often have

to proceed with the utmost caution, assuming the worst-case scenario, in order to ensure the

protection of the public and themselves. This is especially true when a firearm is involved.

While we do not minimize the need for officer safety, we do not agree that the search of the

suitcase was necessary or helpful to ensure officer safety in the particular facts of this case.

       {¶ 28} Although any additional information regarding the whereabouts of a gun may

help officers develop a better plan in fluid situations, the Fourth Amendment does not allow

the State to use evidence obtained from a warrantless search unless the State can carry its
                                                                                            14


heavy burden of showing exigent circumstances. When the officers arrived at the apartment,

the alleged victim was waiting safely outside, while Roberson was inside the apartment in the

shower. The officers could have waited for Roberson to answer the knocks on the front door

before they entered the premises. Instead, the alleged victim gave the officers permission to

go inside the apartment and approach Roberson. The victim remained safely outside as the

officers entered with their guns drawn. The reason the officers had their guns drawn was to

increase their safety. Once inside, the officers quickly secured the premises while Roberson

was showering in the bathroom. At this point, the officers could have called for a search

warrant while they continued to secure the premises. The officers could have restricted

Roberson’s access to any places elsewhere in the apartment where the firearm might be, which

had already been established as the suitcase and the book bag. Instead, the officers decided to

conduct a warrantless search of Roberson’s suitcase. The State argues that this warrantless

search was necessitated by the fact that the officers, in order to ensure their safety, needed to

know in an expedited fashion whether or not the firearm was in Roberson’s suitcase or

whether it was instead in Roberson’s possession in the bathroom. We do not agree.

       {¶ 29} The alleged victim was waiting outside and the officers had the apartment

secure. Furthermore, the officers had Roberson’s suitcase and other bags secured. There

was no inherent need to act without a warrant given the fact that Roberson was in the

bathroom and no confrontation had occurred with the police. The officers had a number of

options, including waiting for a search warrant to search Roberson’s bags, exiting the

apartment and waiting for Roberson to answer the door or exit the apartment, or remaining in

the apartment, with their guns drawn, waiting for Roberson to exit the bathroom.             The
                                                                                           15


officers are better trained and suited for making the choice between these options than we are.

 However, the particular facts of the case before us do not support a finding that exigent

circumstances existed that would allow the officers to search Roberson’s suitcase in order to

increase their safety.

        {¶ 30} The assignment of error is sustained.



                                       IV. Conclusion

        {¶ 31} Roberson’s assignment of error having been sustained, the judgment of the

trial court is Reversed, and this cause is Remanded for further proceedings consistent with this

opinion.

                                                 .............

FROELICH and HENDON, JJ., concur.

(Hon. Sylvia Sieve Hendon, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).

Copies mailed to:

Stephanie R. Hayden
Bradley S. Baldwin
Stephen Wolaver
