[Cite as State v. Wagner, 2014-Ohio-5548.]




                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 101153



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                       TERELLE L. WAGNER

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-579793-A

        BEFORE:         McCormack, J., Kilbane, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: December 18, 2014
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: John D. Kirkland
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

        {¶1} Defendant-appellant, Terelle Wagner, appeals from his conviction of carrying a

concealed weapon and having weapons while under disability. On appeal, he claims the trial

court erred in denying his motion to suppress the evidence. Finding no merit to his appeal, we

affirm the trial court’s judgment.

        {¶2}    Wagner was charged with carrying a concealed weapon in violation of R.C.

2923.12(A)(2), a felony of the fourth degree, and having weapons while under disability, in

violation of R.C. 2923.13(A)(3), a felony of the third degree. He filed a motion to suppress the

evidence. The trial court denied the motion after a hearing.        Wagner then pleaded no contest.

The trial court found him guilty of the offenses and imposed one year of community control

sanctions.

        {¶3} On appeal, Wagner raises one assignment of error, claiming the trial court erred in

denying his motion to suppress.

                              Testimony at the Suppression Hearing

        {¶4}    While on patrol at around 8:00 p.m on October 30, 2010, several police officers

received a dispatch call indicating a person being held and a gun was involved, on a house on

Walton Avenue, Cleveland. Officer Neagu was asked to assist Officers Schade and Sauders.

Officer Neagu testified that he arrived at the scene within ten minutes. He and the other two

officers walked up to the house and knocked on the front door. A male, later identified as

Kenneth Schoffner, answered the door, and the officers advised him the reason of the presence of

the officers.   Schoffner let the officers in.   Officer Neagu testified as follows:
       Q.      What did you do when you got to the residence?

       A.      We knocked on the front door. Person answered the door. We advised him

               why we were there, that we had received a call to check about a person

               being held against their will. He said there was no one there being held

               against their will. Obviously given the severity of the situation, we asked if

               he minded if we went in and checked and he had no problem with that and

               let us in.

       {¶5} Officer Shade’s testimony was consistent with a consented entry.      He testified:

       * * *A male did answer the door. I don't recall his name or anything like that.
       He answered the door and then PO Sauders had a brief
       conversation, stating why we are here, that we are here for a male held against his

       will and I don’t recall what the male said at that point, but all I remember is they

       made entry to the door with the male stating that I guess they were allowed, and I

       checked the upstairs.

       {¶6}    While Officer Shade checked the upstairs unit of the house, the other officers

followed Schoffner into the downstairs unit.        The apartment looked “abandoned” and in

disarray.   It was also dark. The only lights that were on came from the kitchen area. The

officers had to use their flashlights. Another man stood in the darkness in the dining room area.

Officer Neagu found it peculiar that this man, later identified as Wagner, was just standing there

in the darkness. Because of the nature of the dispatch call, Officer Neagu asked the two men if

there was anyone else in the house. Both said no.

       {¶7}    At that point, Officer Neagu was standing with his back to a door. To ensure his

safety, he turned around and opened the door, which revealed a closet in which a male was

standing in the pitch dark with his back to the doorway.    Officer Neagu ordered the man out of
the closet and immediately ordered all three men on the ground. The officers then handcuffed

them and patted them down for weapons.          While patting down Wagner, Officer Neagu felt a

magazine clip. Wagner admitted he had a gun on him. A loaded gun was found on his

waistband.

       {¶8}    Officer Fairchild testified that he removed the gun from Wagner’s waistband. It

was a semiautomatic handgun, a 0.380 Hi Point. Two other officers testified. Officer Schuler

testified that he and his partner, Officer Lozinak, heard a Code One radio broadcast regarding a

male being held by a gun. When they arrived at the house, the men in the house were already

detained by the other officers. He explained Code One is the most serious radio broadcast.

Officer Shade testified he checked the upstairs unit while the other officers went into the

downstairs unit — Wagner’s apartment.

       {¶9}    Wagner testified on his own behalf.         He admitted to prior offenses of drug

trafficking, burglary, and having weapons while under disability. He testified that he shared

the apartment with Schoffner and Schoffner’s then-girlfriend.           Schoffner’s sister and her

boyfriend also stayed there but had moved out. On the day of the incident, an acquaintance

Juan Broom — the man standing inside the closet, was there. Wagner explained the house was

in disarray because they were packing up to move out of the house. He stated that before the

police came, he, Schoffner, and Broom rolled up some joints and were about to smoke. Wagner

stated he recognized the voice in the 911 call as the voice of a friend, “Nook,” but could not

explain why “Nook” made the call.

       {¶10} Although the “dispatch narrative” in the police report in this case contained a

notation “unsure if this is real or a prank,” the officers were not aware of the uncertainty.

                                        Standard of Review
       {¶11} An appellate review of a motion to suppress presents a mixed question of law and

fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We accept

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

Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.). Once we

accept the factual findings as true, however, we must independently determine, as a matter of law

and without deference to the trial court’s conclusion, whether the trial court's decision meets the

applicable legal standard. State v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998).

       {¶12} Wagner claims the anonymous tip did not provide the police with probable cause to

make a warrantless entry and search of the home.

       {¶13} Our review of the suppression hearing transcript shows that the police entered

Wagner’s apartment with consent.      However, even if the consent was not clearly reflected by

the testimony, as Wagner claims, the police entry would qualify under the emergency-aid or

exigent-circumstance exception to the Fourth Amendment’s warrant requirement.

                     Emergency-Aid or Exigent-Circumstance Exception

       {¶14} Warrantless searches are presumptively unconstitutional, but several exceptions

to the warrant requirement have been delineated by the courts, including the one pertinent to this

case, the “community-caretaking exception,” which courts sometimes refer to as the

“emergency-aid exception” or “exigent-circumstance exception.”         State v. Dunn, 131 Ohio

St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 15. The exception is based on a recognition that

       [p]olice officers are not simply criminal law enforcers, charged with investigating
       criminal conduct and developing and maintaining evidence of crime. They have
       other roles, one of which is their community health, safety, and protection role.
       Police officers are charged with the duty to prevent crime, preserve the peace, and
       protect persons and property.
State v. Russell, 127 Ohio App.3d 414, 417, 713 N.E.2d 56 (9th Dist.1998), citing State v. Hyde,

26 Ohio App.2d 32, 33, 268 N.E.2d 820 (9th Dist.1971).

       {¶15} Accordingly, “‘[t]he Fourth Amendment does not bar police officers from making

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

immediate aid.’”     State v. Nields, 93 Ohio St.3d 6, 16, 752 N.E.2d 859 (2001), quoting

Mincey v. Arizona, 437 U.S. 385, 391, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). “‘The need to

protect or preserve life or avoid serious injury is justification for what would be otherwise illegal

absent an exigency or emergency.’” Dunn at ¶18, quoting Wayne v. United States , 318 F.2d 205,

212    (D.C.Cir.1963)      (the   community-caretaking/emergency-aid        exception    allows    a

law-enforcement officer to act without a warrant when the officer has objectively reasonable

grounds to believe that there is an immediate need for the officer’s assistance to protect life or

prevent serious injury);   Hyde, supra (the emergency-aid exception to the warrant requirement

is satisfied by a showing the police officers had reasonable grounds to believe that some kind of

emergency existed).        “The ultimate standard set forth in the Fourth Amendment is

reasonableness.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706

(1973). “Reasonable belief is assessed from the facts and circumstances known to the officers,

and from their point of view.” Lakewood v. Simpson, 8th Dist. Cuyahoga No. 80383,

2002-Ohio-4086, ¶ 14, citing State v. Robinson, 103 Ohio App.3d 490, 496, 659 N.E.2d 1292

(1st Dist.1995).

       {¶16}       We are aware that the dispatch here was based on an anonymous tipster, the

least reliable among different classes of informants.       However, whether an anonymous tip

provides reasonable suspicion or probable cause is determined by the totality of the

circumstances. Navarette v. California, 572 U.S. ___, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014).
       {¶17} Here, although there appeared to be a notation in the dispatcher’s note that the call

might be a prank, the officers were not aware of that uncertainty.      The officers believed they

were responding to a Code One dispatch, the highest priority call, involving the presence of a gun

and a person in imminent harm’s way.     The courts have noted that “‘[t]he business of policemen

and firemen is to act, not to speculate or meditate on whether the report is correct. People could

well die in emergencies if police tried to act with the calm deliberation of the judicial process.’”

State v. Johnson, 8th Dist. Cuyahoga No. 96983, 2012-Ohio-1344, ¶ 11, quoting Wayne at 212.

The entry, if indeed without consent as Wagner claims, was justified by the officers’ reasonable

belief that entering the residence was necessary to investigate what appeared to be an emergency.

 See Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037 (the court cited with

approval a Florida Supreme Court case that held that the warrantless entry and search of an

apartment in response to a call indicating that a person in the apartment had threatened to kill

himself was lawful because of exigent circumstances indicating the need for help).

       {¶18} Once the officers entered the apartment, their suspicion of a potential criminal

activity was not dispelled. They saw a dark apartment in disarray and a male standing in the

darkness. There was no TV watching or other usual household activities going on in the

apartment.    Immediately after the two men in the apartment assured the officer that no one else

was in the apartment, the officer opened a door behind him —          understandably to secure the

officers’ safety — a third man was found standing inside the pitch-dark closet, contradicting the

two men’s representation.      Under these circumstances, the officers’ belief they had an

immediate need to protect themselves was prudent and not unreasonable.              They were, of

necessity, entitled to search the three men for weapons to ensure their own safety. As the

Supreme Court of Ohio cautioned, “‘[w]e cannot blind ourselves               to the need for law
enforcement officers to protect themselves and other prospective victims of violence in situations

where they may lack probable cause for an arrest.’” State v. Andrews, 57 Ohio St.3d 86, 89,

565 N.E.2d 1271, quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

       {¶19} For the foregoing reasons, we overrule the assignment of error.     The trial court’s

judgment denying the motion to suppress the evidence is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
