[Cite as State v. Milton, 2011-Ohio-4773.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.         25668

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
REGGIE S. MILTON                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   CR 2010 06 1582(A)

                                  DECISION AND JOURNAL ENTRY

Dated: September 21, 2011



        MOORE, Judge.

        {¶1}     Appellant, the State of Ohio, appeals from the judgment of the Summit County

Court of Common Pleas. This Court reverses.

                                               I.

        {¶2}     On June 5, 2010, at approximately 9:00 a.m., Copley Police Officer Ben

Campbell and his partner were running license plates at a Motel Six in Copley Township,

Summit County, Ohio. They discovered an active misdemeanor warrant from Stark County for

the Appellee, Reggie S. Milton. After verifying with the motel staff that Milton was staying

there, the officers knocked on Milton’s motel room. Officer Campbell identified himself and

announced that there was an outstanding arrest warrant for Milton.

        {¶3}     After approximately one or two minutes, Milton answered the door.      After

acknowledging that he was Milton, the officers advised him that there was a warrant for his

arrest, and he was handcuffed a few steps inside of the hotel room doorway. There was a female
                                                  2


sitting on a bed in the hotel room. Officer Campbell immediately walked to the bathroom “to

make sure there wasn’t any third person in there.” He did not see any person, but did notice a

big box of matches. Upon his return to the room, he noticed a metal can resembling paint thinner

on the floor, and bags of tubing on the dresser. In his experience, these are items consistent with

the production of methamphetamine. Out of concern for everyone’s health, the officers removed

Milton and the female from the room.           Outside of the hotel room, the female was also

handcuffed and arrested.

          {¶4}   On June 22, 2010, Milton was indicted by the Summit County Grand Jury for one

count of illegal manufacture of drugs in violation of R.C. 2925.04, a felony of the first degree,

one count of illegal assembly or possession of chemicals for the manufacture of drugs in

violation of R.C. 2925.041(A), a felony of the third degree, one count of possessing criminal

tools in violation of R.C. 2923.24, a felony of the fifth degree, and one count of illegal use or

possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth

degree.

          {¶5}   On August 3, 2010, Milton filed a motion to suppress. The State did not file a

responsive brief. On October 7, 2010, the trial court conducted a hearing on the motion. On

October 18, 2010, Milton filed a supplemental brief in support of the motion, and the State filed

a reply on October 28, 2010. On November 2, 2010, the trial court granted Milton’s motion to

suppress.

          {¶6}   The State timely filed a notice of appeal. It raises one assignment of error for our

review.
                                                 3


                                                II.

                                  ASSIGNMENT OF ERROR

       “THE TRIAL COURT ERRED IN GRANTING THE MOTION TO
       SUPPRESS.”

       {¶7}    In its sole assignment of error, the State contends that the trial court erred in

granting Milton’s motion to suppress. We agree.

       {¶8}    A motion to suppress evidence presents both a question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8. When 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 witnesses. Id. at 154–55, citing State v. Mills (1992), 62

Ohio St.3d 357, 366. “Consequently, an appellate court must accept the trial court’s findings of

fact if they are supported by competent, credible evidence. 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.” (Internal citations omitted.)

Burnside at ¶8.

       {¶9}    In its order granting the motion to suppress, the trial court concluded that because

the officers had no concern for their safety, and had no reason to believe that anyone was armed,

the officer’s entry into the bathroom of the hotel room was prohibited by the Fourth Amendment.

It further concluded that because the warrantless search and seizure did not fall within any

recognized exception to the exclusionary rule, the Fourth Amendment to the United States

Constitution, and Article I, Section 14 of the Ohio Constitution, required suppression of the

evidence.

       {¶10} The State argues that suppression was improper under Maryland v. Buie (1990),

494 U.S. 325. Generally, the government may not search an individual’s home without the
                                                4


individual’s consent or a search warrant supported by probable cause. Payton v. New York

(1980), 445 U.S. 573, 589-90. This expectation of privacy is extended to occupants of a hotel

room. Stoner v. California (1964), 376 U.S. 483, 490. In Buie, the United States Supreme

Court’s decision authorized officers making in-home arrests to conduct a “protective sweep” or a

“quick and limited search of the premises, incident to an arrest and conducted to protect the

safety of police officers or others.” Buie, 494 U.S. at 327. The risk of danger in the context of

an in-home arrest or otherwise on an “adversary’s turf” is greater and the officer may take

reasonable steps to ensure their own safety. Id. at 333-334.

       {¶11} In Buie, the Supreme Court articulated two holdings: (1) during an in-home arrest,

officers may “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” and (2) the officers may conduct a search that extends beyond those

areas when they have “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.” Id. at 334. See also, U.S. v.

Stover (2007), 474 F.3d 904, 911; State v. Johnson, 8th Dist. No. 82697, 2003-Ohio-6641, at

¶10.

       {¶12} The Buie “protective sweep” is applicable to hotels as well.           See State v.

Brewster, 1st Dist. Nos. C-030024, C-030025, 2004-Ohio-2993, at ¶24. In the case at hand, the

officers entered an open one-bedroom hotel room. The open room contained two beds. A

bathroom was located in the back corner of the room. Officer Campbell testified that Milton was

apprehended a few feet inside of the hotel room, and a protective sweep of the bathroom was

then performed. In U.S. v. Kaler, the Sixth Circuit upheld a protective sweep of a hotel bathtub
                                                 5


without probable cause or reasonable suspicion because it was “an ‘immediately adjoining space’

under Buie.” U.S. v. Kaler (2001), 11 Fed.Appx. 400, 402. There, officers forcibly entered a

hotel room to execute an arrest warrant. Id. at 401. In conducting a protective sweep, “one of

the officers pushed open the adjoining bathroom door, turned on the light, stepped into the

bathroom, and pushed back the shower curtain.” Id. The trial court properly denied the motion

to suppress evidence found in the bathtub as a result of the protective sweep. Id. at 402.

       {¶13} Here, as in Kaler, the officers searched the bathroom “immediately adjoining the

place of arrest” and, under the first Buie holding, could do so “without probable cause or

reasonable suspicion[.]” Buie, 494 U.S. at 334. This protective sweep was also properly limited

in scope. “It consisted of a cursory visual inspection of the bathroom, the place in which a

person might have been hiding, and lasted no longer than necessary to dispel the reasonable

suspicion of danger.”     State v. Brewster, 157 Ohio App.3d 342, 2004-Ohio-2722 at ¶30.

Accordingly, it was improper for the trial court to grant the motion suppress simply because the

officers did not demonstrate concern for their safety.

       {¶14} The State’s sole assignment of error is sustained. The case is remanded to the

trial court to determine whether the evidence seized from the bathroom and the hotel room

should be properly admitted under the plain view exception.

                                                III.

       {¶15} Appellant’s assignment of error is sustained.         The judgment of the Summit

County Court of Common Pleas is reversed and the cause remanded for proceedings consistent

with this opinion.

                                                                                Judgment reversed
                                                                              and cause remanded.
                                                 6




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, P. J.
CONCURS

DICKINSON, J.
DISSENTS, SAYING:

       {¶16} As noted by the majority, in Maryland v. Buie, 494 U.S. 325 (1990), the United

States Supreme Court recognized two levels of “protective sweep” in connection with an in-

home arrest. Id. at 327. At the first level, police may, “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.” Id. at 334. At the
                                               7


second level, based on “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,” police may look beyond

“spaces immediately adjoining the place of arrest from which an attack could be immediately

launched.” Id.

       {¶17} Police arrested Mr. Milton a step or two inside the door of his hotel room within

30 seconds after he had opened that door. Officer Campbell than walked through the hotel room

to the bathroom, which was located at the other end of the hotel room. He spotted the matches

inside the bathroom and the other evidence on his way back out of the hotel room. Under the

facts of this case, the bathroom was not “immediately adjoining the place of arrest.”

Accordingly, the search in this case was a “second level” search that would have required

articulable facts warranting a reasonably prudent officer in believing there was an individual

posing a danger in the bathroom. There were no such facts. Accordingly, I would overrule the

State’s assignment of error and affirm the trial court’s granting of Mr. Milton’s motion to

suppress.


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellant.

ADAM VAN HO, Attorney at Law, for Appellee.
