[Cite as State v. Cross, 2014-Ohio-1046.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                 WASHINGTON COUNTY

STATE OF OHIO,                                   :
                                                 :
        Plaintiff-Appellee,                      :
                                                 :           Case No. 12CA54
        v.                                       :
                                                 :           DECISION AND
BRYAN E. CROSS,                                  :           JUDGMENT ENTRY
                                                 :
        Defendant-Appellant.                     :           Released: 03/11/2013

                                            APPEARANCES:
Angela Wilson Miller, Jupiter, Florida, for Appellant.

Paul Bertam, III, City Law Director, and Timsi Pathak, Assistant City Law Director,
Marietta, Ohio, for Appellee.



Hoover, J.

        {¶ 1} This is an appeal of a judgment from the Marietta Municipal Court wherein

appellant Bryan E. Cross was convicted of OVI. Appellant had filed a motion to

suppress alleging that evidence was obtained during a non-consensual search of his home

and person. The trial court denied appellant’s motion. The trial court found that the “hot

pursuit” exception to the Fourth Amendment of the United States Constitution’s

prohibition on warrantless entries applied in this case. Afterwards, appellant changed his

plea to “no contest” and was found guilty of OVI.

        {¶ 2} The trial court made a clearly erroneous finding of fact. The trial court

questioned the appellant’s credibility as a result of the erroneous finding of fact. Because

this case presents a close question on the issue regarding whether the “hot pursuit”
Washington App. No. 12CA54                                                                    2


exception applies under the facts of this case, we reverse the judgment of the trial court

and remand the case for further proceedings consistent with this opinion.

       {¶ 3} Appellant presents the following assignment of error:

       THE TRIAL COURT ERRED IN DENYING APPELLANT CROSS’S

       MOTION TO SUPPRESS AS THE STATEMENTS HE MADE IN

       RESPONSE TO QUESTIONING AND THE SOBRIETY TEST

       RESULTS WERE ELICITED IN VIOLATION OF HIS

       CONSTITUTIONAL RIGHTS UNDER THE FOURTH AND

       FOURTEENTH AMENDMENTS TO THE UNITED STATES

       CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO

       CONSTITUTION.

                                             I.

                          FACTS & PROCEDURAL HISTORY

       {¶ 4} On the night of March 15, 2012, Deputy Brian Rhodes of the Washington

County Sheriff’s Office was dispatched to the area of Mile Post 10 on State Route 555 in

Decatur Township. A resident had called in a complaint about four-wheelers driving up

and down the roadway. Deputy Rhodes patrolled the area for four-wheelers; but he did

not locate them. He then decided to remain stationary in his patrol car at the intersection

of State Route 555 and Big Run.

       {¶ 5} While Deputy Rhodes was stationary, he noticed a vehicle back out of a

driveway and drive towards him, going left of center for a short distance. The car then

passed the deputy. Once the car passed him, Deputy Rhodes looked over his shoulder

and saw the car turn left on to Bank Street without using a left turn signal. After
Washington App. No. 12CA54                                                                    3


witnessing the traffic violations, Deputy Rhodes followed the vehicle until it stopped in

the driveway where it first pulled out. Deputy Rhodes never activated the patrol car’s

lights or siren.

        {¶ 6} The car pulled into the driveway and Deputy Rhodes pulled in behind the

car. The driver of the vehicle, appellant Bryan E. Cross, was closing the door to his

vehicle as Deputy Rhodes was pulling into the driveway and getting out of his vehicle.

Deputy Rhodes testified that as soon as he exited his vehicle, he could smell the odor of

an alcoholic beverage.

        {¶ 7} Appellant proceeded towards his garage. According to Deputy Rhodes,

when Deputy Rhodes was approximately twenty to twenty-five feet from the garage, he

ordered appellant to stop; but the appellant did not stop. Deputy Rhodes testified that the

appellant looked back and kept going. Deputy Rhodes further testified that the appellant

did not run from him but he picked up his pace after acknowledging his presence.

Deputy Rhodes testified that “it wasn’t a pursuit, but yeah, I went towards him.”

        {¶ 8} According to Deputy Rhodes, when he initially made contact with

appellant, they were “very near the threshold” of the garage. Deputy Rhodes testified

that “[w]e may have been two steps in. We may have been two steps out. But it was near

the threshold of the garage.”

        {¶ 9} Appellant testified that he heard the officer asking him to stop only after he

was already ten to fifteen feet in his garage. Appellant responded by telling the deputy

that he was in his house. Appellant did not run or flee from the deputy. Appellant further

testified that Deputy Rhodes grabbed appellant’s arm or shoulder area when they were
Washington App. No. 12CA54                                                                 4


already in the garage. The appellant admitted to hearing the car in the driveway; but he

did not hear him shut the door.

         {¶ 10} Once Deputy Rhodes and appellant were in the garage, Deputy Rhodes

administered the Horizontal Gaze Nystagmus test, the one leg stand, and the walk and

turn test. Appellant submitted to a portable breathalyzer test yielding a BAC reading of

.143. The garage door remained open throughout the interaction between Deputy Rhodes

and appellant. As a result of the stop and the tests administered, the appellant was

arrested for OVI and transported to jail.

        {¶ 11} Appellant pled not guilty at his arraignment. Thereafter, he filed a motion

to suppress. Appellant sought to suppress “any evidence or testimony concerning any

evidence seized during a pre-arrest, warrantless, non-consensual search of Defendant’s

home and person by Lt. B.P. Rhodes of the Washington County Sheriff’s Department.”

Deputy Rhodes and appellant testified at the hearing on the Motion to Suppress.

        {¶ 12} On September 27, 2012, the trial court denied the Motion to Suppress.

The trial court’s findings of fact stated:

        …

        7. Defendant testified that he did not notice the officer’s car or lights until

        he had crossed the threshold of the garage.

        8. Defendant further testified that he was already 10’ -15’ inside the

        garage when he heard the officer’s command to stop.

        9. In contrast, the officer testified he had pulled into the driveway behind

        the Defendant’s truck with emergency lights activated all before

        Defendant crossed into his garage.
Washington App. No. 12CA54                                                                  5


       10. Lt. Rhodes testified he commanded the Defendant to stop before

       Defendant entered the garage. He testified that Defendant did not stop and

       instead hurried up.

       11. The court does not find the Defendant’s testimony credible that he did

       not notice the cruiser or its emergency lights behind him in his driveway

       in the complete darkness at midnight or one o’clock in the morning.

       12. Because the Court finds Defendant’s testimony that he noticed

       neither the headlights or the emergency lights behind him in his

       driveway not credible, the Court is not inclined to believe the balance of

       his testimony.

       (Emphasis Added).

       {¶ 13} The trial court found the “hot pursuit” exception to the Fourth

Amendment’s prohibition against warrantless entries to be applicable here. The trial court

stated that it was “not inclined to believe the balance of his testimony” based on the

finding of fact that appellant did not notice the emergency lights behind him in his

driveway.

       {¶14} The trial court denied the appellant’s motion to suppress. As a result of the

denial of the motion to suppress, appellant entered a change of plea from “not guilty” to

“no contest.” On December 5, 2012 the trial court found appellant guilty of OVI, in

violation of R.C. 4511.19, and sentenced appellant. Appellant timely filed this appeal.

                                             II.

                                       ANALYSIS
Washington App. No. 12CA54                                                                   6


       {¶ 15} In his sole assignment of error, appellant argues that the trial court erred

when it denied his motion to suppress. He contends his statements and the sobriety test

results were elicited in violation of his constitutional rights under the Fourth Amendment

of the United States Constitution and Section 10 of the Ohio Constitution. Specifically,

appellant argues that the police officer in this case entered his home without consent.

Appellant further argues that the officer was not in “hot pursuit” of him to justify the

warrantless entry.

                                   A. Standard of Review

       {¶ 16} Our review of a trial court’s decision on a motion to suppress presents a

mixed question of law and fact. State v. Jones, 4th Dist. Washington No.11CA13, 2012-

Ohio-1523, ¶ 6. citing State v. Roberts, 850 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d

1168, ¶ 10 and State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶

8. When considering a motion to suppress, the trial court acts as the trier of fact and is in

the best position to resolve factual questions and evaluate witness credibility. Id.

Accordingly, we defer to the trial court’s findings of fact if they are supported by

competent credible evidence. Id. citing State v. Landrum, 137 Ohio App.3d 718, 722,

739 N.E.2d 1159 (4th Dist.2000). Accepting those facts as true, we must independently

determine whether the trial court reached the correct legal conclusion in analyzing the

facts of the case. Id. citing Roberts at ¶ 100; Burnside at ¶ 8.

                           B. Reasonable Expectation of Privacy

       {¶ 17} The warrant requirement of the Fourth Amendment does not apply unless

the complaining party has a constitutionally protectable expectation of privacy. Katz v.

United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “Modern
Washington App. No. 12CA54                                                                  7


understandings of the Fourth Amendment recognize that it serves to protect an

individual's subjective expectation of privacy if that expectation is reasonable and

justifiable.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, ¶ 14, citing Rakas v.

Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States,

389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Thus, a

threshold issue in the instant case is whether the appellant maintained such an expectation

of privacy in his garage.

       {¶ 18} Here, appellant’s garage is attached to his house. Appellee sets forth that

since the garage door was open, appellant exposed himself to the public view. We are

not prepared to hold that an open garage door nullifies appellant’s reasonable expectation

of privacy. See State v. Cooper, 2nd Dist. Greene No. 97-CA-15, 1997 WL 593754 *2

(Sept. 26, 1997). In Cooper, “the officers had to enter the garage before they could

discover the seized evidence.” Id. Similarly, Deputy Rhodes only discovered evidence

leading to appellant’s arrest after he entered the garage. Inside the garage he obtained

results from the sobriety tests and appellant’s statements, which were sought to be

suppressed in this case. Therefore, as a threshold matter, we find that appellant had a

reasonable expectation of privacy in his garage, subject to the protection of the Fourth

Amendment to the United States Constitution.

                                 C. Hot Pursuit Exception

       {¶ 19} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution guarantee the right of the people to be free from

unreasonable searches and seizures. See State v. Orr, 91 Ohio St.3d 389, 391, 2001-

Ohio-50, 745 N.E.2d 1036. These two provisions contain nearly identical language and
Washington App. No. 12CA54                                                                   8


the Supreme Court of Ohio has interpreted them as affording the same level of protection.

Id. “It is well settled law that, absent consent, the Fourth Amendment prohibits

warrantless entry into a home to make an arrest unless there is both probable cause for the

arrest and the existence of exigent circumstances.” State v. Letsche, 4th Dist. Ross No.

02CA2693, 2003-Ohio-6942, ¶ 19, citing Payton v. New York, 445 U.S. 573, 100 S.Ct.

1371, 63 L.E.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367,

92 L.Ed. 436 (1948); Cleveland v. Shields, 105 Ohio App.3d 118, 121, 663 N.E.2d 726

(8th Dist.1995); State v. Jenkins, 104 Ohio App.3d 265, 268, 661 N.E.2d 806 (1st

Dist.1995).

       {¶ 20} The State bears the burden of establishing exigency from the totality of

the circumstances involved. Letsche at ¶ 20, citing Welsh v. Wisconsin, 466 U.S. 740,

750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); State v. Sladeck, 132 Ohio App.3d 86, 724

N.E.2d 488 (1st Dist.1998); State v. Brooks, 10th Dist. Franklin No. 94APA03-386, 1995

WL 390935 (June 27, 1995). One of the exigent circumstances justifying a warrantless

entry into a home is when police are in “hot pursuit” of a fleeing suspect. See United

States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

       {¶ 21} In Santana, the United States Supreme Court held that a suspect could not

thwart a lawful arrest that began in a public place by retreating into a private place. Id. at

paragraph two of the syllabus. The Ohio Supreme Court extended this exception to the

pursuit of a suspect who committed a misdemeanor rather than a felony. Middletown v.

Flinchum, 95 Ohio St.3d 43, 2002-Ohio-1625, 765 N.E.2d 330 (2002). This Court

previously summarized the facts of Flinchum in State v. Letsche, 4th Dist. Ross No.

02CA2693, 2003-Ohio-6942, ¶ 22:
Washington App. No. 12CA54                                                                  9


               In Flinchum, Middletown police officers observed the appellant

       spinning his car tires and stopping and then rapidly accelerating his car,

       causing the car to fishtail. 95 Ohio St.3d at 43. The officers attempted to

       approach Flinchum’s vehicle twice but Flinchum fled from the police on

       both occasions. Id. Finally, the officers observed Flinchum standing on the

       driver's side of his parked car. Id. When Flinchum saw the officers stop

       their cruiser in front of his car, he ran towards the rear entrance of a house.

       Id. One of the officers repeatedly yelled “Stop” and “Police,” but

       Flinchum continued to run. Id. at 43–44. As the pursuit continued, the

       officer heard a rear screen door slam and then observed Flinchum standing

       in his kitchen approximately five feet inside his home. Id. at 44. Without

       Flinchum's permission, the officer entered his home and arrested him. Id.

       {¶ 22} The Court in Flinchum reasoned: “***we find no reason to differentiate

appellant’s offense and give him a free pass merely because he was not charged with a

more serious crime. The basic fact remains that appellant fled from police who were in

lawful pursuit of him and who had identified themselves as police officers.” Id. at 45.

Under Flinchum, “When officers having identified themselves, are in hot pursuit of a

suspect who flees to a house in order to avoid arrest, the police may enter without a

warrant, regardless of whether the offense for which the suspect is being arrested is a

misdemeanor.”

       {¶ 23} Appellee argues that the “hot pursuit” exception applies. The State

contends that appellant remained in the public view at all times during the facts of this

case. The State makes note that appellant never attempted to close his garage door,
Washington App. No. 12CA54                                                                 10


exposing himself to the public even when he stepped into his garage. The State also

contends that a “hot pursuit” occurred after Deputy Rhodes commanded the appellant to

stop when both men were in appellant’s driveway.

       {¶ 24} The State relies upon State v. Lake, 7th Dist. Columbiana No. 08CO26,

08CO27, 2009-Ohio-3057, as a factually similar case where the Seventh District Court of

Appeals affirmed a trial court’s denial of a Motion to Suppress. In Lake, the Chief of

Police and a fellow officer were driving home after a shift around 5:00 p.m. in an

unmarked city SUV. Id. at ¶ 3. While in single lane traffic, a motorcycle rider passed the

officers on the right side and drove through a red light. Id. at ¶ 4. The rider was not

wearing a helmet and the Chief recognized him. Id. at ¶ 5. From prior interactions, the

Chief knew where the Defendant lived so he proceeded to his residence. Id. There, the

officers found Defendant straddling the motorcycle, walking it into his detached garage.

Id. at ¶ 6. When Defendant was approximately fifteen to twenty feet from his open

garage, the officer ordered him to stop several times and called him by name. Id. The

officers followed defendant into his garage, where they discovered the odor of alcohol

and the defendant’s slurred speech. Id. at ¶ 7.

       {¶ 25} Defendant was subsequently arrested and taken to the police station. Id.

at ¶ 9-10. Defendant was cited for OVI, failure to stop at a red light, passing on the right,

resisting arrest, and aggravated menacing. Id. at ¶ 10. The defendant filed a Motion to

Suppress on the basis of many issues, including warrantless entry into his garage. Id. at ¶

12. The trial court found the officer was permitted to issue the traffic citations as he was

in “hot pursuit” of the defendant when he entered the defendant’s garage. The Seventh

District Court of Appeals upheld the trial court’s decision. On the issue of the
Washington App. No. 12CA54                                                                   11


warrantless entry into defendant’s garage, the Seventh District ruled that “Since the

attempt to arrest was set in motion while appellant was outside in public view, the pursuit

into his garage was lawful, regardless of whether the garage is considered curtilage.” Id.

at ¶ 40.

           {¶ 26} Appellant argues that the trial court erred when it applied the “hot pursuit”

exception to Deputy Rhodes’ warrantless intrusion into his garage. He argues that the

trial court’s decision was based upon a mistaken finding of fact. Furthermore, appellant

contends no “hot pursuit” occurred as he merely got out of his car and walked to his

garage. Therefore, according to appellant, the State failed to establish any exceptions to

the warrant requirement.

           {¶ 27} Our standard of review dictates an appellate court must accept the trial

court’s findings of fact, if supported by some competent evidence. In its decision

denying appellant’s Motion to Suppress, the trial court states: “9. In contrast, the officer

testified he had pulled into the driveway behind Defendant’s truck with emergency lights

activated all before Defendant crossed into his garage.” The trial court refers to the

officer’s emergency lights numerous times in its findings of fact. The evidence does not

support the finding of fact that Deputy Rhodes activated his emergency lights. The

transcript of the hearing on the Motion to Suppress reads: “Q. [Defendant’s Counsel].

And you never activated your lights or sirens or anything like that, correct? A. [Officer

Rhodes] No, I did not.” Since no competent evidence supports the finding that Officer

Rhodes activated his emergency lights or sirens, we do not accept the trial court’s

assertion of that fact.
Washington App. No. 12CA54                                                                 12


       {¶ 28} Under the Ohio Supreme Court’s ruling in Flinchum, three things must be

established for the “hot pursuit” exception to apply: (1) the officers must have identified

themselves; (2) the officers must be in hot pursuit; and (3) the suspect needs to have fled

into a house to avoid arrest. 95 Ohio St.3d at 43.

       {¶ 29} With respect to the first requirement, the record does not establish that

Deputy Rhodes identified himself as a police officer. Deputy Rhodes never activated his

emergency lights. Deputy Rhodes gave testimony only to the fact that he ordered

appellant to stop. Deputy Rhodes claims that he ordered the appellant to stop before he

entered the garage. Appellant claims that he was already in the garage when he heard the

officer ask him to stop.

       {¶ 30} The trial court stated, in its findings of fact: “11. The court does not find

the Defendant’s testimony credible that he did not notice the cruiser or its emergency

lights behind him in his driveway in the complete darkness at midnight or one o’clock in

the morning.” As mentioned previously, the emergency lights on Deputy Rhodes’s

cruiser were not activated. Given that the trial court discounted the appellant’s testimony

based upon the aforementioned mistaken finding of fact, it is unclear when the deputy

actually ordered appellant to stop.

       {¶ 31} The facts here differ from those in Lake, wherein the defendant had

previous dealings with the officer in the Lake case. The officer had ordered the defendant

to stop several times and called him by name. In Lake, the defendant had actually driven

around the vehicle in which the officer and the Chief were riding as the defendant yelled

something indiscernible. Determining if Deputy Rhodes actually identified himself

requires the factfinder to find either appellant or Deputy Rhodes more credible than the
Washington App. No. 12CA54                                                                13


other. Here, the trial court found appellant less credible in part because the mistaken fact

that it was unreasonable for appellant to not notice the officer’s activated lights.

       {¶ 32} We now turn to the second requirement that the officers must be in hot

pursuit of a defendant. On direct examination, Deputy Rhodes offered this testimony:

       Q. [Prosecutor] When you pulled up into the driveway, did the Defendant

       remain in his vehicle?

       A. [Lt. Rhodes] He was actually closing the door to his vehicle as I was

       pulling in and getting out.

       Q. [Prosecutor] So was he exiting the vehicle and closing it?

       A. [Lt. Rhodes] Yes.

       Q. [Prosecutor] Okay. And where did he go?

       A. [Lt. Rhodes] To the garage. That direction.

       Q. [Prosecutor] Did you command the Defendant to stop?

       A. Yes.

       Q. [Prosecutor] And did the Defendant stop?

       A. No.

       Q. Did you pursue the Defendant on foot?

       A. Uh-hum. Well, it wasn’t a pursuit, but yeah, I went towards him.

After Deputy Rhodes was provided a leading question by the State of Ohio, he

clarified his answer that “it wasn’t a pursuit” by answering as follows:

       Q. Okay. You stated the Defendant did not run from you but did he pick

       up his pace after acknowledging your presence?

       A. Yes, ma’am.
Washington App. No. 12CA54                                                                14


       {¶ 33} In contrast to the facts in Flinchum, where the defendant avoided police

on two separate occasions and ran into his house, it is questionable whether the facts here

demonstrate a “hot pursuit.” At no time did Deputy Rhodes activate his cruiser’s lights

or sirens, definitively alerting appellant of police presence. The trial court even

describes the encounter as “lukewarm amble,” rather than a hot pursuit. Accordingly, it

is uncertain whether a “hot pursuit” actually took place here.

       {¶ 34} As for the third requirement, it is also questionable whether the appellant

“fled into a house to avoid arrest.” No evidence was presented that the appellant ran into

his garage. Deputy Rhodes even testified that appellant did not run from him and that “it

wasn’t a pursuit.”

       {¶ 35} The State possesses the burden to demonstrate that the facts in this case

should meet an exception to the Fourth Amendment’s prohibition of warrantless entry to

a home. The trial court in this case recognized in its findings of fact that this was a

“lukewarm amble” just as Justice Pfeifer’s dissent referenced the set of facts in Flinchum.

Therefore, this Court reiterates the statements of Justice Pfeiffer:

               We are dealing in this case with a fundamental part of a

       fundamental right. “It is axiomatic that the ‘physical entry of the home is

       the chief evil against which the wording of the Fourth Amendment is

       directed.’ ” Welsh v. Wisconsin (1984), 466 U.S. 740, 748, 104 S.Ct. 2091,

       80 L.Ed.2d 732, quoting United States v. United States Dist. Court for the

       E. Dist. of Michigan (1972), 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d

       752. It is nearly as axiomatic that “the Court has recognized, as ‘a “basic

       principle of Fourth Amendment law[,]” that searches and seizures inside a
Washington App. No. 12CA54                                                           15


      home without a warrant are presumptively unreasonable.’ ” Id. at 749, 104

      S.Ct. 2091, 80 L.Ed.2d 732, quoting Payton v. New York (1980), 445 U.S.

      573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639. The Welsh court recognized

      exceptions for exigent circumstances, but emphasized that “exceptions to

      the warrant requirement are ‘few in number and carefully delineated’ * * *

      and that police bear a heavy burden when attempting to demonstrate an

      urgent need that might justify warrantless searches or arrests.” 466 U.S. at

      749–750, 104 S.Ct. 2091, 80 L.Ed.2d 732, quoting United States v. United

      States Dist. Court, supra, 407 U.S. at 318, 92 S.Ct. 2125, 32 L.Ed.2d 752.

      In Welsh the court was quick to point out that the exception carved out by

      Santana concerns “hot pursuit of a fleeing felon.” (Emphasis added.) Id. at

      750, 104 S.Ct. 2091, 80 L.Ed.2d 732.

             The gravity of tinkering with the protections of the Fourth

      Amendment is appreciated by the Supreme Court, and that court

      emphasizes that the circumstances of a particular situation must be grave

      enough to merit a lifting of those protections: “Our hesitation in finding

      exigent circumstances, especially when warrantless arrests in the home are

      at issue, is particularly appropriate when the underlying offense for which

      there is probable cause to arrest is relatively minor. * * * When the

      government's interest is only to arrest for a minor offense, that

      presumption of unreasonableness is difficult to rebut, and the government

      usually should be allowed to make such arrests only with a warrant issued

      upon probable cause by a neutral and detached magistrate.” (Footnote
Washington App. No. 12CA54                                                                   16


        omitted.) Id. at 750, 104 S.Ct. 2091, 80 L.Ed.2d 732.

Id. at 46-47 (Pfeiffer, J., dissenting).

        {¶ 36} This Court is unable to accept the trial court’s finding of fact as true that

the officer’s emergency lights were activated. Our standard of review dictates that we

must independently determine whether the trial court reached the correct legal conclusion

in analyzing the facts of the case. Jones, supra at ¶ 6. This Court is unable to determine

that the trial court reached the correct legal conclusion since a key fact in the case was

analyzed incorrectly.

        {¶ 37} This is a close case. Because of the importance of the Fourth Amendment

Rights of our citizens to be free from unreasonable searches and seizures, we remand this

case for the trial court to reevaluate the evidence in light of the mistaken finding of fact.

We are reluctant to find that one mistake of fact taints all other facts and disregard the

decision of the trial court. However, in this case, it is disconcerting that the trial court had

discredited the balance of the appellant’s testimony as a result of the mistaken finding of

fact. A remand in this case would allow the trial court to evaluate the testimony of the

parties without the mistake of fact. A remand would also allow the trial court to take

additional evidence and/or conduct a new hearing.

                                              III.

                                           Conclusion

        {¶ 38} Appellant’s sole assignment of error is sustained. The judgment of the

Marietta Municipal Court is reversed and the cause is remanded for further proceedings

consistent with this opinion.

                                   JUDGMENT REVERSED AND CAUSE REMANDED.
Washington App. No. 12CA54                                                                  17




                                  JUDGMENT ENTRY

        It is ordered that the trial court’s JUDGMENT BE REVERSED and
REMANDED for proceedings consistent with this decision. Appellee shall pay the 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 Marietta
Municipal Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, P.J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents.

                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.
