[Cite as State v. Byrd, 2017-Ohio-6903.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 27340
                                                 :
 v.                                              :   Trial Court Case No. 2015-CR-3976
                                                 :
 LAQUITTA T. BYRD                                :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                              Rendered on the 21st day of July, 2017.

                                            ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

KATHERINE ROSS-KINZIE, Atty. Reg. No. 009762, Assistant State Public Defender, 250
East Broad Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellant

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




WELBAUM, J.
                                                                                        -2-




      {¶ 1} Defendant-appellant, LaQuitta T. Byrd, appeals from her conviction and

sentence, following a bench trial, on one count of possession of cocaine, one count of

possession of heroin, and one count of illegal conveyance of drugs onto the grounds of a

detention facility. Byrd contends that the trial court erred in overruling her motion to

suppress evidence obtained as a result of a warrantless search of her residence. For

the reasons outlined below, the judgment of the trial court will be reversed and the cause

remanded for further proceedings consistent with this Opinion.



                          Facts and Course of Proceedings

      {¶ 2} On the morning of December 23, 2015, members of the Dayton Police

Department sought to execute an arrest warrant on Andrew Nason. Using a cellular

phone number that was known to be associated with Nason, the police were able to

determine that Nason’s phone was located inside the residence at 1641 South Smithville

Road in Dayton.    Dayton police officers surrounded the home. Two vehicles were in

the driveway of the residence. The police officers connected both vehicles to Julie

Custer, the mother of two of Nason’s children.

      {¶ 3} The police officers began knocking on the doors and windows of the

residence. During the forty-five minutes that the police had the residence surrounded,

the police made several announcements over a loud speaker system, instructing any

occupants of the house to exit the house and alerting any occupants that the police had

an arrest warrant for Nason. While the house was surrounded, two of the officers in the

back of the house saw Nason attempting to escape through a rear window of the home.
                                                                                         -3-


After seeing the officers, Nason retreated back into the home.

         {¶ 4} A canine police unit arrived at the house. The police announced over the

loud speaker system that the officers were prepared to forcibly enter the residence and

deploy the canine to apprehend Nason. Following this announcement, Nason opened

the front door of the house and surrendered.        Officers secured Nason in handcuffs

outside of the house.

         {¶ 5} After Nason was secured outside the residence, two officers entered the

residence and began a search of the house. Detective Stutz proceeded up the stairs of

the house and encountered Byrd at the top of the stairs. Byrd was dressed and appeared

alert.   Detective Stutz and Detective Cope escorted Byrd to a police cruiser.            In

response to questions, Byrd stated that she lived at the residence and that she did not

exit the house while it was surrounded because she was afraid of the police, not Nason.

Byrd was placed under arrest and taken to the Montgomery County Jail. During a search

of Byrd at the jail, police discovered heroin and crack cocaine hidden in Byrd’s groin area.

         {¶ 6} On December 31, 2015, the Montgomery County Grand Jury indicted Byrd

on one count of possession of cocaine (twenty-seven grams but less than one hundred

grams), a felony of the first degree in violation of R.C. 2925.11(A), one count of

possession of heroin (one gram but less than five grams), a felony of the fourth degree in

violation of R.C. 2925.11(A); one count of tampering with evidence, a felony of the third

degree in violation of R.C. 2921.12(A)(1); one count of illegal conveyance of drugs of

abuse onto the grounds of a detention facility, a felony of the third degree in violation of

R.C. 2921.36(A)(2); one count of obstructing official business, a misdemeanor of the

second degree in violation of R.C. 2921.31(A); and one count of obstructing justice, a
                                                                                        -4-


felony of the third degree in violation of R.C. 2921.32(A)(1). Dkt. 1.

       {¶ 7} On January 19, 2016, Byrd filed a motion to suppress. Following a hearing,

the trial court overruled the motion. Dkt. 21. Byrd subsequently waived her right to a

jury trial. Dkt. 32. The State dismissed the one count of obstructing official business.

Following a bench trial, the trial court found Byrd guilty as charged on the cocaine

possession, heroin possession, and illegal conveyance counts in the indictment and not

guilty on the tampering with evidence and obstructing justice counts. Dkt. 46.

       {¶ 8} On October 5, 2016, the trial court sentenced Byrd to three years in prison

for cocaine possession, one year in prison for heroin possession, and one year in prison

for illegal conveyance, all to be served concurrently with each other. Dkt. 52. The trial

court stayed execution of Byrd’s sentence pending appeal. Byrd now appeals from her

conviction and sentence.



                               First Assignment of Error

       {¶ 9} Byrd’s First Assignment of Error is as follows:

              THE TRIAL COURT ERRED IN OVERRULING LAQUITTA BYRD’S

       MOTION      TO    SUPPRESS,       IN   VIOLATION        OF   THE   FOURTH

       AMENDMENT TO THE UNITED STATES CONSTITUTION, AND

       ARTICLE 1, SECTION 14, OF THE OHIO CONSTITUTION.

       {¶ 10} Byrd contends that the trial court erred in overruling her motion to suppress

based on a finding that the police officers discovered her during a permissible protective

sweep of the inside of the residence. According to Byrd, “the necessary arrest [of Nason]

was already made outside the residence and no circumstances justified a protective
                                                                                         -5-


sweep.” Byrd Appellate Brief, p. 8.

       {¶ 11} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

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

credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the

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

(Citation omitted.) Id. “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” (Citation omitted.) Id.

       {¶ 12} It is undisputed that Byrd was arrested as a direct result of a warrantless

search of her residence. “The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution guarantee that ‘the right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures shall not be violated * * *.’ ” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994). “These provisions grant to the citizens of Ohio what is among

our most cherished of constitutional rights.” Id. “[P]hysical entry of the home is the chief

evil against which the wording of the Fourth Amendment was directed.”              (Citation

omitted.) Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980). It is a basic principle of Fourth Amendment law that searches and seizures inside

a home without a warrant are presumptively unreasonable. Id. at 586.

       {¶ 13} Exigent circumstances are a well-established exception to the Fourth

Amendment’s warrant requirement. State v. Berry, 167 Ohio App.3d 206, 2006-Ohio-
                                                                                        -6-


3035, 854 N.E.2d 558, ¶ 12 (2d Dist.). The State has the burden of showing the validity

of a warrantless search. State v. Hilton, 2d Dist. Champaign No. 08-CA-18, 2009-Ohio-

5744, ¶ 21-22, citing Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988).

The exigent or emergency circumstances exception to the warrant requirement applies 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 officers are in “hot pursuit” of a fleeing

suspect or someone inside poses a danger to the police officer’s safety. E.g., State v.

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

v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). “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.”

Sharpe at ¶ 29.

      {¶ 14} The State contends that the discovery of Byrd in her residence was the

product of a permissible protective sweep conducted by the police officers. A protective

sweep is a reasonable exception to the Fourth Amendment’s warrant requirement as a

corollary of the exigent or emergency circumstances exception. State v. McLemore, 197

Ohio App.3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 9 (2d Dist.); State v. Mathews, 2d

Dist. Montgomery No. 26326, 2015-Ohio-1047, ¶ 10, citing Maryland v. Buie, 494 U.S.

325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

      {¶ 15} “A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others. It is narrowly

confined to a cursory visual inspection of those places in which a person might be hiding.”
                                                                                          -7-

Buie at 327. In Buie, the United States Supreme Court provided the following reasoning

for allowing police officers to conduct warrantless, protective sweeps after an arrest has

been made:

             In [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),]

      and [Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201

      (1983),] we were concerned with the immediate interest of the police officers

      in taking steps to assure themselves that the persons with whom they were

      dealing were not armed with, or able to gain immediate control of, a weapon

      that could unexpectedly and fatally be used against them. In the instant

      case, there is an analogous interest of the officers in taking steps to assure

      themselves that the house in which a suspect is being, or has just been,

      arrested is not harboring other persons who are dangerous and who could

      unexpectedly launch an attack. The risk of danger in the context of an

      arrest in the home is as great as, if not greater than, it is in an on-the-street

      or roadside investigatory encounter. A Terry or Long frisk occurs before a

      police-citizen confrontation has escalated to the point of arrest.             A

      protective sweep, in contrast, occurs as an adjunct to the serious step of

      taking a person into custody for the purpose of prosecuting him for a crime.

      Moreover, unlike an encounter on the street or along a highway, an in-home

      arrest puts the officer at the disadvantage of being on his adversary's “turf.”

      An ambush in a confined setting of unknown configuration is more to be

      feared than it is in open, more familiar surroundings.

Buie at 332-333.
                                                                                        -8-

       {¶ 16} With that in mind, the Buie Court held:

             [T]hat as an incident to the arrest the officers could, as a

       precautionary matter and without probable cause or reasonable suspicion,

       look in closets and other spaces immediately adjoining the place of arrest

       from which an attack could be immediately launched.            Beyond that,

       however, we hold that there must be articulable facts which, taken together

       with the rational inferences from those facts, would warrant a reasonably

       prudent officer in believing that the area to be swept harbors an individual

       posing a danger to those on the arrest scene.

Buie, 494 U.S. at 334, 110 S.Ct. 1093, 108 L.Ed.2d 276.

       {¶ 17} The Buie holding also includes a subjective requirement, as the court further

held that:

             The Fourth Amendment permits a properly limited protective sweep

       in conjunction with an in-home arrest when the searching officer possesses

       a reasonable belief based on specific and articulable facts that the area to

       be swept harbors an individual posing a danger to those on the arrest scene.

Id. at 337. See also Messing, The Protective Sweep Doctrine: Reaffirming a Limited

Exception, 44 Colum. J.L. & Soc. Probs. 33 (2010) (“Unlike the standard in [Terry], the

[Buie] standard has both an objective and subjective requirement. The government not

only must meet the burden of showing a reasonable belief that a third party is present but

also must satisfy the subjective requirement that the searching officer actually possessed

that belief. The [Buie] test therefore requires a reasonable suspicion that another person

(1) is present and (2) poses a danger.”).
                                                                                           -9-

          {¶ 18} In State v. Lyons, 83 Ohio App.3d 525, 615 N.E.2d 310 (2d Dist.1992), we

summarized the Buie test relating to warrantless, protective sweeps conducted after an

arrest:

                 As we understand the holding in Maryland v. Buie, the applicable test

          is whether the officers effecting the arrest have a reasonable belief, based

          upon articulable facts and rational inferences from those facts, that the area

          to be swept harbors an individual posing a danger to them. The scope of

          the protective sweep must not exceed that reasonably necessary to protect

          the safety of the officers.

Id. at 534.

          {¶ 19} In State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960

(2d Dist.), we provided further guidance on the limits of the protective-sweep exception:

                 The protective-sweep exception to the warrant requirement in Buie

          and Lyons requires some positive indication that another person or persons

          remain in the residential premises where a subject is arrested and that they

          pose a threat to the safety of officers or others. Lacking that indication,

          there is not a need to act sufficient to avoid the requirement of a prior

          warrant if the house is to be searched after a defendant’s arrest there.

          Mere suspicion that a weapon remains inside is insufficient. Likewise, not

          knowing whether anyone else is there is an insufficient pretext because the

          need for protection necessarily implies that another person or persons are

          there. Faced with such doubts, and absent any reason to believe that other

          persons may be inside, officers must obtain a warrant before they conduct
                                                                                         -10-


       a search of a defendant’s house after a defendant’s arrest there.

Id. at ¶ 46.

       {¶ 20} In Sharpe, we found that the police officers did not have a reasonable belief,

based upon articulable facts and rational inferences from those facts, that the area to be

swept harbors an individual posing a danger to them. We explained that:

               After Sharpe was arrested, his prior threat of suicide presented no

       basis to search for a gun he could have used for that purpose, but didn’t.

       The only other person involved in the alleged domestic-violence offense,

       Stephanie McConnaghey, the alleged victim, had been safe outside the

       house with police during the previous two to three hours they were there.

       Police saw no one else go in or come out of the house during that time.

       The record does not reflect that any shots, calls for help, or other

       disturbances were heard from inside the house during those several hours.

       Sharpe’s arrest when he emerged from the house was calm and uneventful.

       The state suggests that Sharpe’s prior unorthodox method of entry, through

       a rear window, supports a suspicion that someone else was inside the

       house and possibly had been injured. That is speculative.

Id. at ¶ 54.

       {¶ 21} Similarly, in McLemore, 197 Ohio App.3d 726, 2012-Ohio-521, 968 N.E.2d

612, we held that once a defendant came out of the residence “and was taken into custody

by police, there was no suggestion either that another person or persons remained inside

that residence or that the person posed a threat to the safety of the officers or others.”

Id. at ¶ 11. In McLemore, nearly two hours passed between the victim’s initial call to
                                                                                          -11-


police and the officers’ arrival at the residence in question. Because of this, the State

argued that the police had no idea who might have entered the residence during that time.

We noted that “[n]ot knowing whether anyone else was inside the residence is an

insufficient pretext for a protective sweep to learn whether anyone is, in fact, inside.” Id.

at ¶ 13, citing Sharpe. We also rejected the argument that the warrantless search was

permissible to determine if anyone was inside who needed aid. We held:

              Police had no reasonable basis to suspect that anyone in need of

       their aid was inside the residence after defendant came outside and was

       arrested by police. Police knew that the sole victim was not at that location

       and was safe. That they did not know whether anyone else was inside is

       insufficient to justify their entry.   Sharpe.   Their concern that another

       person might be inside who needed aid is wholly speculative on these facts

       and presented no emergency justifying their warrantless entry into the

       residence. Id. For the same reasons we concluded that the protective-

       sweep exception has not been established in this case, neither has the

       exigent- or emergency-circumstances exception been established. The

       warrantless protective-sweep search of this residence by police violated

       defendant’s Fourth Amendment rights.

McLemore at ¶ 16.

       {¶ 22} In State v. Spradlin, 187 Ohio App.3d 767, 2010-Ohio-2140, 933 N.E.2d

1131 (2d Dist.), we distinguished our decision in Sharpe and affirmed the trial court’s

determination that the officers had a reasonable and articulable suspicion that other

persons remained in the apartment who could pose a risk to the police officers. We
                                                                                         -12-


stated:

              McDaniel was wanted for felonious assault with a deadly weapon in

       connection with a shooting that left a man paralyzed. While repeatedly

       knocking on the door of Spradlin’s apartment for 25 minutes, Donley stated

       that he heard “scurrying around and moving around, things moving around

       inside the door,” and “people within the house,” and “conversations,

       whispering.”    Upon entering the apartment and finding McDaniel, the

       officers also encountered Spradlin and Jones, who was walking around in

       the rear of the apartment.      At that time, they were unable to view the

       entirety of the apartment, including the kitchen, bedrooms and bathroom,

       and given the noises they had heard prior to entry, they had reason to

       believe that other persons could be inside. The fact that the officers had

       legitimate reason to believe that other persons were present in the

       apartment, a fact confirmed by the presence of Jones and Spradlin, is

       significant and distinguishes this case from Sharpe.        Importantly, the

       officers expressed concern for their safety.

              On this record, we agree with the trial court that the officers had a

       reasonable and articulable suspicion that following McDaniel’s arrest, other

       persons besides Spradlin and Jones, who could pose a risk to the safety of

       the officers, remained inside the apartment.

Spradlin at ¶ 34-35.

       {¶ 23} In overruling Byrd’s motion to suppress relating to the warrantless entry into

her residence, the trial court found (Dkt. 21, p. 6):
                                                                                        -13-


             The protective sweep conducted in this case falls, it seems to this

      writer, somewhere between State v. Sharpe and State v. Spradlin, [187

      Ohio App.3d 767, 2010-Ohio-2140, 933 N.E.2d 1131 (2d Dist.)], but, in the

      end, it is concluded that Detective Stutz and the other officers had, using

      the Second District’s language, a reasonable and articulable suspicion that

      other persons were in the home and that these persons could pose a danger

      to the officers or could need assistance. The officers knew Nason did not

      live at 1641 S. Smithville Road, and, further, the officers did not know what,

      if any, connection Nason had to the home. This circumstance suggested

      the significant possibility that the individuals who lived at the home were

      present. Additionally, two vehicles connected to Nason were parked in the

      home’s driveway with the presence of a second vehicle increasing the

      possibility of individuals other than Nason being in the home.           It is

      concluded, based upon these factors, that Detective Stutz and the other

      officers had a legitimate, articulable suspicion that Nason was not alone in

      the home, and that, since there was no response to the repeated knocks on

      the door and commands to exit, that such individuals could pose a danger

      to the officers or others or, perhaps, needed assistance. It is, accordingly,

      concluded that the police entry into 1641 S. Smithville Road did not violate

      the 4th Amendment.

      {¶ 24} In reviewing the trial court’s ruling on Byrd’s motion to suppress, we must

keep in mind that the State has the burden of showing the validity of a warrantless search.

In attempting to meet its burden, the State offered the testimony of three officers who
                                                                                        -14-


were present at the scene when Nason and Byrd were arrested. Sergeant Daniel A.

Williger, a patrol sergeant with the Dayton City Police Department, testified that when he

arrived on the scene at 1641 South Smithville Road, there were already four or five police

officers at the residence.   Transcript of the February 10, 2016 Motion to Suppress

Hearing, p. 8-9.    Sergeant Williger announced the following several times over his

cruiser’s PA system during a twenty-minute period: “Andrew Nason, this is the Dayton

Police Department, there is a warrant for your arrest, we are giving you orders to come

out of the house, showing empty hands. You need to do so immediately.” Id. at 9. At

one point while the house was surrounded, two uniformed officers at the back of the house

saw Nason attempting to escape through a rear window. Id. Upon seeing the officers,

Nason retreated back into the house and continued to ignore verbal commands from the

police to come out and give himself up. Id. Once the K-9 officer arrived at the scene,

Sergeant Williger gave one final command over the PA system announcing that the police

were going to force entry into the residence and send in a K-9 to assist in getting Nason

out of the house.     Id. at 12.     As soon as Sergeant Williger completed this final

announcement, “the front door of the residence came open very quickly. Mr. Nason did

in fact, lay down on the ground. He complied with all commands and was handcuffed

without any further incident.” Id.

       {¶ 25} According to Sergeant Williger, once Nason was handcuffed:

              Mr. Nason was removed from the house and secured in the vehicle

       and in order to be able to say that the house was clear in its entirety, as we

       have no knowledge whether there may be persons either hurt within the

       house or being held against their will. Detectives went in the house to clear
                                                                                         -15-


      the house to ensure that there was nobody who was in any state of duress.

Id. at 12. From the time that Sergeant Williger arrived at the scene until the time Byrd

was arrested, Sergeant Williger had no knowledge of who owned the residence and who

resided there. Id. at 20-21.

      {¶ 26} Officer Thomas Cope, a homicide investigator for the Dayton Police

Department, also testified regarding the events leading up to the arrest of Byrd. Id. at

24-25. Upon arrival at the scene, Officer Cope discovered that there were two cars

parked in the driveway that were registered to Julie Custer, who is the mother of a couple

of Nason’s children. Id. at 27. This information made Officer Cope “very certain” that

Nason was inside the residence. Id. at 28. After several police officers surrounded the

residence, Officer Cope knocked on the door numerous times, announcing the presence

of the Dayton Police Department and advising of an arrest warrant for Nason and

requesting all occupants to come out of the house. Id. at 29-30. Officer Cope received

information from another officer that Nason was spotted attempting to come out through

a window in the back of the house. Id. at 30. Officer Cope was not aware if anyone

else was in the house other than Nason. Id. at 31.

      {¶ 27} Officer Cope testified that after Nason exited the house:

             I placed him in - - well, we ordered him to the ground, we - - he was

      - - ordered his hands behind his back. He was not immediately compliant,

      so we had to put his hands behind his back. We put him in handcuffs and

      then walked him to a cruiser.      I believe - - actually, I believe it was a

      uniformed officer that walked him to the cruiser, then I cleared the first floor

      of the house, while other officers went and cleared the second floor of the
                                                                                         -16-


       house.

Id. at 32.

       {¶ 28} Officer Cope further testified that he did not attempt to get a search warrant

after pings to Nason’s phone showed the presence of Nason’s phone at 1641 South

Smithville Road or after Nason was spotted attempting to come out of the back of the

residence. Id. at 44-45. Officer Cope did not see any evidence of any activity going on

inside the house prior to Nason’s exit from the house. Id. at 47. Officer Cope gave the

following explanation of why he entered the residence and cleared the first floor after

Nason was taken to the police cruiser in handcuffs:

              No, I was just making sure he didn’t have any hostages or anything

       like that in there. Because after a prolonged standoff like that, you never

       know what’s in there. So, for our safety since we might be there for a while

       and also the safety of anyone else who might be in there, we do what we

       call protective sweep of the house, just checking broad areas where people

       might be. We don’t open anything, we don’t look in anywhere. We just

       look for places where people might be hiding or stashed out.

Id. at 46.

       {¶ 29} Detective Ginger Stutz with the Dayton Police Department also testified at

the suppression hearing. She worked with Officer Cope in the attempt to arrest Nason.

Detective Stutz gave Nason’s phone number to Officer Cope so that he could ping it to

determine the location of the phone. Id. at 50-51. When Detective Stutz arrived at 1641

South Smithville Road, she recognized a red car parked in the driveway as one that

belonged to Julie Custer, who was Nason’s girlfriend and mother of two of his children.
                                                                                           -17-

Id. at 51-52. Detective Stutz did not make any effort to determine who lived at 1641

South Smithville and did not run the plate on the car parked in the driveway. Id. at 52-

53. The location of Nason’s cell phone at that address along with the presence of a car

that matched the description of a car belonging to Nason’s girlfriend was enough to

convince Detective Stutz that Nason was inside the residence. Id. at 54. Detective

Stutz knocked on windows and on the side door as announcements were made by other

police officers. Id. at 54.

       {¶ 30} Detective Stutz testified as follows regarding how she proceeded after

Nason was arrested:

              While [Nason] was laying on the ground, Detective Cope and

       Detective Daugherty were bringing his hands behind his back, they were

       getting ready to do that. We didn’t have anybody else in the house at that

       point, any officers. So I stepped over Andrew Nason and went into the

       house, so that way I could have Detective Daugherty and Detective Cope’s

       back in case there were anybody - - was anybody else in the house.

              ***

              I remained stationed at that point in the living room, I believe, right in

       front of the door until Andrew Nason was picked up off the ground and

       escorted out. At that point, another - - a uniformed crew came in and he

       and I began walking up the steps.

Id. at 55. Detective Stutz did not know anyone else was in the home other than Nason

until she discovered Byrd during the protective sweep. Id. at 70.

       {¶ 31} The common thread across the testimony of the three police officers is that
                                                                                          -18-


none of them were aware of the presence of any other individuals in the house other than

Nason. At the time of the warrantless entry, none of the officers knew who resided at

1641 South Smithville. In fact, the State stipulated at the suppression hearing that at the

time of the arrest of Nason, the Dayton Police had no idea that Byrd was living at 1641

South Smithville Road. Id. at 41-42. Further, none of the officers heard any activity or

sounds coming from inside of the house while the house was surrounded and did not see

anyone enter or leave the house other than when Nason attempted to escape out a

window in the back of the house. The facts before us are consistent with the facts in

Sharpe and McLemore where there was lacking any facts that would permit the officers

to form a reasonable and articulable belief that other persons were in the home and that

these persons posed a danger to the officers or needed assistance.

       {¶ 32} The trial court relied heavily on the fact that there were two cars in the

driveway and that the officers were not aware of any connection between Nason and the

house to infer that there was a “significant possibility that the individuals who lived at the

home were present.” Dkt. 21, p. 6. But this finding is inconsistent with the testimony of

the police officers, as none of the officers testified that the two cars led them to believe

there were other individuals inside the house. In fact, the officers testified that they were

not aware of anyone being inside the house with Nason and that they did not see or hear

any activity inside the house. Accordingly, their testimony is consistent with conducting

a protective sweep as a matter of course rather than doing so due to any heightened

safety concerns derived from particular observations or information the officers obtained

after arriving at 1641 South Smithville Road.          “Clearly, Buie requires more than

ignorance or a constant assumption that more than one person is present in a residence.”
                                                                                            -19-

United States v. Archibald, 589 F.3d 289, 300 (6th Cir.2009). “In fact, allowing the police

to conduct protective sweeps whenever they do not know whether anyone else is inside

a home creates an incentive for the police to stay ignorant as to whether or not anyone

else is inside a house in order to conduct a protective sweep.” Id. Further, “an overly

generous application of the ‘protective sweep’ exception could swallow the presumptive

rule against warrantless searches of houses.” United States v. Barone, 721 F. Supp.2d

261, 275 (S.D.N.Y.2010).

       {¶ 33} We conclude that, under the particular facts before us, the warrantless,

protective-sweep search of Byrd’s residence by Dayton police officers violated Byrd’s

Fourth Amendment rights. Therefore, the trial court erred in overruling Byrd’s motion to

suppress.

       {¶ 34} Byrd’s first assignment of error is sustained.1



                               Second Assignment of Error

       {¶ 35} Byrd’s second assignment of error states:

            THE   TRIAL     COURT      ERRED       WHEN      IT   CONVICTED        AND

       SENTENCED LAQUITTA BYRD TO AN ENHANCED LEVEL OF

       POSSESSION IN COCAINE BASED ON A GROSS WEIGHT THAT

       INCLUDED FILLER MATERIAL. STATE V. GONZALES, SLIP OPINION

       NO. 2016-OHIO-8319.


1 In this assignment of error, Byrd also contends that the trial court erred in failing to grant
her motion to suppress on the alternative basis that police officers lacked probable cause
to arrest her. Given our conclusion that the warrantless, protective-sweep search of her
residence by Dayton police officers violated Byrd’s Fourth Amendment rights, we need
not address Byrd’s probable cause argument.
                                                                                      -20-


      {¶ 36} Based on our disposition of the first assignment of error, Byrd’s second

assignment of error is overruled as moot. App.R. 12(A)(1)(c).



                                     Conclusion

      {¶ 37} Having sustained Byrd’s first assignment of error, the judgment of the trial

court is reversed and the cause is remanded for further proceedings consistent with this

Opinion.



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



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michael J. Scarpelli
Katherine Ross-Kinzie
Hon. Erik R. Blaine
