[Cite as State v. Hallam, 2012-Ohio-5793.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :        C.A. CASE NO.     2012 CA 19

v.                                                  :        T.C. NO.   11CR333

BRYAN HALLAM                                        :        (Criminal appeal from
                                                              Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                             ..........

                                             OPINION

                         Rendered on the      7th   day of    December       , 2012.

                                             ..........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

RICHARD E. MAYHALL, Atty. Reg. No. 0030017, 20 S. Limestone Street, Suite 120,
Springfield, Ohio 45502
       Attorney for Defendant-Appellant

                                             ..........

DONOVAN, J.

        {¶ 1}     This matter is before the Court on the Notice of Appeal of Bryan Hallam,

filed
[Cite as State v. Hallam, 2012-Ohio-5793.]
March 26, 2012. Hallam appeals from his conviction and sentence, on one count of illegal

cultivation of marijuana, in violation of R.C. 2925.04, a felony of the fifth degree, following

a no contest plea, which Hallam entered after the trial court overruled his motion to

suppress. Hallam was sentenced to one year of community control sanctions. We hereby

affirm the judgment of the trial court.

        {¶ 2}     At the suppression hearing, Deputy Dustin Hensely, of the Clark County

Sheriff’s Office, testified that on November 28, 2010, he responded to 3787 Miller Road

“to conduct a welfare check at the request of Deputy Ronny Lemen” regarding “some small

juveniles supposedly staying at the residence.” According to Hensley, Lemen advised him

“that the gentleman he was talking to, I believe it was the ex-husband of Miss Bolin and the

father of the children that I was being sent to check the location for, wanted us to conduct a

welfare check just because to make sure that the children were okay. And Miss Bolin was

okay. For whatever reason, he hadn’t heard from them.” Hensely stated that the residence

“was quite a distance from the road.”

        {¶ 3}      Hensley testified as follows:

                 * * * when I pulled up to the residence, there were several vehicles in

        the driveway. The house was dark. I couldn’t tell for sure whether anybody

        was home. The garage doors were up though, so I went inside the garage is

        my first area that I noticed when I pulled into the driveway (sic). Went

        inside the garage and then attempted to knock on the interior garage door to

        try and raise somebody inside the house. Wasn’t able to get any answer

        there.

                 So I proceeded to walk around the house to the front of the house, and
                                                                                           3

       that’s when I noticed the front door. So I went to approach the front door,

       and I noticed that the front door appeared to have been left open or was

       slightly ajar. I knocked on the door again and announced myself inside the

       residence, “Sheriff’s department, anybody home?         Sheriff’s department.”

       And yet again, I didn’t get any response.

               While I was checking the outside front of the residence, I noticed a

       broken glass pane window. I also looked inside the windows and stuff like

       that into the interior of the residence.     I noticed that the house inside

       appeared to be in total disarray. There were clothes, furniture, other kind of

       furniture, blankets, and whatnot just scattered all around the front living room

       area of the house; and the house appeared to me to be ransacked.

He stated that the broken window he observed was “on the side of the garage,” and that the

condition of the window indicated to him “somebody could have forced entry * * * into the

garage. I couldn’t tell at that time. It was dark and whatnot, but I couldn’t tell whether it

was old or new damage. * * * .” Hensley stated that he did not further inspect the window.

       {¶ 4}          Regarding the front door, Hensley testified as follows:

               Appeared like it had been closed, but it wasn’t closed all the way.

       Like when I went to knock, it had opened up even further; and so then I

       checked the door handle to see if the door was even locked at any point in

       time. The door was unlocked itself because when I was jiggling the outside

       of the handle, the latch would move in and out, indicating that it had not even

       been locked.
[Cite as State v. Hallam, 2012-Ohio-5793.]
        {¶ 5}     Hensley further testified, based upon the requested welfare check, the

condition of the home’s interior, and the unlocked and ajar front door, “At that point in

time I wasn’t sure what exactly was going on here. I knew that, you know, I needed to find

out whether or not there was anybody that required any kind of emergency attention inside

the residence.” Hensley stated that he entered the front door, and noticed that there “was a

high level, kind of like an overlook balcony overlooking my current position,” as well as a

hallway leading to the rest of the home. Out of concern for his safety, Hensley stated that

he decided to check the upstairs area first. Hensley stated that he proceeded upstairs, where

he observed a small office, a bedroom and a bathroom.

        {¶ 6}     After determining that no one was upstairs, Hensley returned to the first

floor and proceeded down the hallway while announcing his presence. Hensley stated that

he opened the first door he reached in the hallway, which “led downstairs to a basement.”

As he began to descend the stairs, Hensley sensed “like really moisture-filled air and also I

smelled the odor of marijuana.” Once downstairs, Hensley observed sliding doors that were

covered with a blanket “so nobody could see inside from outside the residence.” Hensley

stated that there were “items all over the area, including some furniture and whatnot.”

Hensley testified that he also observed “construction grade plastic” that was “draped from

the ceiling of the basement all the way down [to] the floor and it was like boxing in a certain

corner of the room.” Hensley stated that he believed the area was a “makeshift bedroom,”

and he heard a fan and observed that the area was lit. While announcing his presence

without response, Hensley stated that he approached the area, where he located several

plants that appeared to be marijuana, along with heat lamps and fan blowing on the plants.

Hensely stated that, upon this discovery, he “backed out of the residence and called for
                                                                                            5

backup,” due to “the seriousness of the situation that I was in and, not knowing whether or

not for sure anybody was waiting in ambush for me in the house.”

          {¶ 7}    On cross-examination, Hensley stated that he approached the house at 7:40

p.m. Hensley stated that he did not attempt to open the interior garage door but rather

proceeded to the front of the house, where he observed the broken window on his way to the

front door. He remembered “walking around the back of the house and also walking around

the bottom side where I saw the sliding doors; and I tried to shine my flashlight inside and,

obviously, I couldn’t because” of the blanket. Hensely stated that he did not approach the

back of the house from the outside until additional units responded to the scene. When

asked through which window he initially viewed the disarray inside the home, he responded,

“It was one of the front house windows.” When defense counsel advised Hensley that all of

the windows on the front of the home are garage windows, Hensley stated, “It might have

been even through the - - through the front door. I can’t remember exactly.”

          {¶ 8}   Hensley identified a photograph of the front door of the home and

acknowledged that the narrow windows on either side of the door do not contain “clear

glass.”     While he was unable to “distinctly” see through these windows, Hensley stated that

he was “pretty sure I was able to shine my flashlight through the window there as well as the

cracked door; and it was ajar. As I knocked on it, I could open it up even more. So I was

able to see inside the residence at that point.” Hensley acknowledged that in his written

report, he did not indicate that the residence was in disarray prior to his entry therein. In

response to a question from defense counsel, Hensley acknowledged that his report provides

that he smelled marijuana as soon as he entered the house but could not determine where the
                                                                                            6

odor originated.

       {¶ 9}       Hensley stated that he passed through large iron gates at the base of the

driveway, which were open, as he approached the residence. He stated that he did not

observe “lights being turned on or off” in the residence as he approached. Except for the

fan, Hensley stated that he did not hear any sounds within the residence.              Hensley

acknowledged that his written report indicates that “Deputy Lemen contacted you and asked

if you could go to this residence and have Miss Bolin contact him in regards to the civil

custody dispute.” The following exchange occurred:

               Q. * * * Now, you received no information the children involved in

       this civil dispute, or anybody else for that matter at that residence, was in any

       kind of distress or any kind of danger.

               A. At that point in time I had not received any information, but I at

       the same time knew that nobody had been able to contact them.

               Q. For what period of time?

               A. I don’t know.

               Q. Again, no indication, no information that anybody was in trouble.

               A. Correct.

               Q. Was there any other reason for you to be dispatched to 3787

       Miller Road that evening?

               A. No sir, not that I can recall.

               Q. There were no reports of burglar alarms having gone off?

               A. Alarms? No sir.
                                                                                          7

              Q. No reports from neighbors or from anyone else that there were

       intruders in the premises?

              A. No sir, the house was pretty secluded. It * * * sat quite a ways

       off the roadway. So at that point I had no idea what was going on in the

       residence once I found the initial items that were out of order.

              Q. * * * So you had received no reports from anybody that there was a

       problem at this residence.

              A. Correct, other than the welfare check.

       {¶ 10} Hensley identified a photograph of the broken window he observed at the

residence. When asked if there was another pane of unbroken glass behind the broken pane,

Hensley stated that he did not know. Hensley stated that he “didn’t know if it would have

been something where somebody could have reached in and unlocked any additional

windows or anything like that. I just initially saw the window was broken, looked out of

order, and that’s when, you know, it concerned me.” Hensley stated that he did not see any

broken glass inside the garage. When asked why he did not further investigate the condition

of the window, he stated, “ * * * my initial, you know, thinking pattern when I was at this

location was I need to try to make contact with somebody at this residence. That’s why I

approached the front door. Like I said, I didn’t know if it was old or new. I didn’t know if

there was still somebody inside the residence or what kind of situation I was in, especially

being there by myself.” Hensely stated he “wasn’t concerned at the time because [the

window] was leading into the garage. There didn’t appear to be anything missing or out of

order that I could tell in the garage. So initially my first step was to try to make contact
                                                                                            8

with somebody.” Hensley stated that he did not know if the garage doors had been opened

from the inside.

       {¶ 11} Regarding the front door, Hensley stated that it was a quarter inch ajar, “like

it hadn’t been pulled closed all the way.” Hensely stated that he looked for signs of forced

entry but observed none. The following exchange occurred:

               Q. Now, the search warrant said that you entered the residence - -

       and I understand that you didn’t make this search warrant affidavit; but it said

       that you entered the residence in an attempt to sweep for possible victims for

       intruders (sic).

               A. Yes, sir.

               Q. * * * That’s a true statement?

               A. Yes, sir.

               Q.    Would you tell me every fact, every circumstance that you

       observed out there that led you to conclude that there was a fair probability

       that there was an intruder or possible victim in that residence?

               A. The fact that the door was ajar, the front door was ajar, the garage

       doors were opened.         There was no answer when I called inside the

       residence. It was a very large residence, as well as the broken glass that I

       observed at that point in time, which later I noticed that it appeared that it had

       been like that; but, you know while I was there, as well as when I saw the

       door open and looked inside the house, the house was in disarray. It didn’t

       appear that, you know, to me it was pretty unkempt. So I wasn’t sure
                                                                                             9

        whether or not anybody had been inside the house, ransacked it, or looking

        for something or if somebody - - or if there was a struggle at that point in

        time.

Hensley acknowledged that in his written report, he “indicated that the house appeared to be

a renovation or construction site,” and that he later learned that was in fact true.

        {¶ 12} Hallam testified that he owns the residence at issue. He denied that his

front door could remain ajar, as Hensly testified, “[b]ecause we have heat inside the house,

and when that door opens automatically, you cannot hold the door at a crack. You can’t try

to hold it shut. If the door handle is open at all, the door swings all the way open and faces

the fireplace because the heat in the house sucks the door open and the cool air in.” Hallam

stated that he attempted to recreate the scenario Hensley described with his door, and

“there’s no way to hold the door in that position.” He also stated that he owns “five puppy

dogs” who “would have been inside that house if the door was open.” Hallam testified that

his dogs were outside when he returned home on the evening in question.

        {¶ 13} Hallam identified a photograph of his garage window. He testified that it is

a triple pane window, and that “a brick had been tossed into it about six years ago from the

lawn mower.” He stated that he had not replaced the window because “the back panes are

not broke so it still keeps the cold air out of the garage.” Hallam stated that the hole in the

glass at its widest part is eight inches. When asked if the hole was large enough for

someone to gain entry to the garage thereby, Hallam replied, “No, not at that elevation that

the hole is.”

        {¶ 14} At the conclusion of closing arguments by counsel, the following exchange
                                                                                       10

occurred:

              THE COURT: What he had when he went out there, as I understand

       it, was another deputy telling him that he had gotten a call from a custodial

       parent saying that they had not returned * * * the children in time and he

       can’t reach them on the phone. Is that correct?

              MR. DRISCOLL: That’s my understanding, yes.

              THE COURT: But there was no, nothing saying that the person - - the

       custodial parent knew that they were at that house, was there?

              MR. DRISCOLL: Well, that I believe that’s where they were

       supposed to be.

              THE COURT: No, they were supposed to be returned to the custodial

       parent. Did he have any way of knowing or any information that they were

       at that house that day?

              MR. DRISCOLLL: I believe that’s why they were sent to the house

       because - -

              THE COURT: Because someone made the assumption that they

       would be at home.

       ***

              THE COURT: * * * But it still would have been dark or fairly dark at

       7:30, a broken window, not all three panes broken; and I know we’ve got

       testimony that the door will not stay closed with only a quarter-inch crack

       between the door and the frame.     That would assume all of the barometric
                                                                                             11

       pressures and all other pressures at the time were the same as the time of the

       test; but if it was slightly ajar and upon knocking, it opened a little bit further

       allowing to see disarray in the house and the garage door open, and

       considering the location of the house, the options the deputy had was to check

       closer to see if there was a problem or to walk away, he walks away and

       somebody’s inside injured, then the argument would be that he didn’t follow

       the obvious clues.

               Having followed clues which, in retrospect, do not seem all that great;

       but at the same time when it became possibility (sic) of a problem, the Court

       finds no fault with what the deputy did.

       {¶ 15} In its Decision overruling Hallam’s motion, the court, in “considering the

totality of the circumstances,” found that “exigent circumstances existed justifying the

warrantless entry into defendant’s home.      Once in the home and during a walk through in

an attempt to determine if there was someone in need of emergency assistance, the evidence

regarding the cultivation of marijuana came into plain sight.”

       {¶ 16} Hallam asserts one assignment of error as follows:

       “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

OVERRULING HALLAM’S MOTION TO SUPPRESS.”

       {¶ 17} Hallam directs our attention to several facts adduced in Hensley’s testimony,

namely that Hensley observed no signs of forced entry at the residence, he had received no

information that anyone in the the house was in distress or trouble, or even inside the home,

and there were no reports of an activated burglar alarm.       Hallam asserts that one broken
                                                                                            12

pane of glass in a triple pane window does not support an inference of forced entry, and he

argues that Hensely “testified, essentially, that he did not think the broken pane was any

indication that an exigent circumstance or emergency existed.” Hallam also asserts that

Hensley “conceded that, in his written report, he never mentioned seeing disarray in the

house until he had made his entry.” Finally, Hallam directs our attention to his testimony

that his front door, if ajar as Hensely testified, “would have blown wide open.”

       {¶ 18}    As this Court has previously noted:

                “Appellate courts give great deference to the factual findings of the

       trier of facts. (Internal citations omitted) . At a suppression hearing, the trial

       court serves as the trier of fact, and must judge the credibility of witnesses

       and the weight of the evidence. (Internal citations omitted). The trial court is

       in the best position to resolve questions of fact and evaluate witness

       credibility. (Internal citations omitted). In reviewing a trial court’s decision

       on a motion to suppress, an appellate court accepts the trial court’s factual

       findings, relies on the trial court’s ability to assess the credibility of

       witnesses, and independently determines whether the trial court applied the

       proper legal standard to the facts as found. (Internal citations omitted). An

       appellate court is bound to accept the trial court’s factual findings as long as

       they are supported by competent, credible evidence.”             State v. Hurt,

       Montgomery App. No. 21009, 2006-Ohio-990.

State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.

       {¶ 19}    The Fourth Amendment to the Untied States Constitution, which is
                                                                                         13

applicable to the states through the Fourteenth Amendment, provides: “The right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to        be

searched, and the persons and things to be seized.” Violations of the Fourth Amendment

require courts to apply the exclusionary rule, suppressing use of any evidence that was

illegally obtained. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

       {¶ 20}    As this court has further previously indicated:

                The Fourth Amendment to the United States Constitution protects

       people from “unreasonable” searches and seizures. Warrantless searches and

       seizures are per se unreasonable under the Fourth Amendment, subject to

       only a few well recognized exceptions. Katz v. United States (1967), 389

       U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. One such recognized exception is

       the exigent circumstances or “emergency” exception. Pursuant to that rule, a

       police officer, even absent a warrant or probable cause, may lawfully enter a

       structure, including a private home, when the totality of the facts and

       circumstances known to the officer gives rise to a reasonable belief that

       immediate entry is necessary to either protect that property or assist people

       inside who may be in danger or in need of immediate aid. Ringel, Searches,

       Seizures, Arrests and Confessions, Section 10.5(a); Katz, Ohio Arrest, Search

       and Seizure, Section 10.01-10.03.

                A myriad of factual circumstances may give rise to an emergency
                                                                                        14

       situation and the corresponding need for an immediate warrantless entry. * *

       * When police reasonably believe that a burglary is in progress or has

       occurred at a particular structure, an immediate warrantless entry undertaken

       to investigate and protect that property and assist any victims inside who may

       be in danger or in need of immediate aid has been upheld by the courts as a

       reasonable search. See Lafave, Search and Seizure, Section 6.6(a) and (b).

              The concept of emergency circumstances justifying an immediate

       warrantless entry by police has long been recognized in Ohio. State v. Hyde

       (1971), 26 Ohio App.2d 32, 268 N.E.2d 820; State v. Roach (1982), 8 Ohio

       App.3d 42, 455 N.E.2d 1328; State v. Morris (November 29, 1989),

       Montgomery App. No. 10992, unreported. However, the warrantless entry

       and search must be limited in duration and scope to the purpose justifying

       that intrusion, including only that which is necessary to alleviate the

       emergency and the dangers associated therewith.         Mincey    v. Arizona

       (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290. During a warrantless

       emergency entry police may seize contraband which is in plain view. * * *.

State v. Overholser, 2d Dist. Clark No. 96-CA-0073, 1997 WL 451473 (July 25, 1997).

       {¶ 21} As this Court noted in Overholser, quoting Morris:

              Every Fourth Amendment question turns on the issue of

       reasonableness, and every determination of reasonableness is sui generis.

       When in an investigation of crime a search and seizure is impelled by reasons

       of genuine physical danger to any person, it presents concerns and needs that
                                                                                         15

       are not easily served by a slow, deliberative process. Actions are to be

       judged on a common sense standard[.]

       {¶ 22}    At issue herein is whether Hensley, at the time he entered Hallam’s home,

based upon the totality of the circumstances, had a reasonable belief that a burglary was in

progress or had just occurred, or that there might be someone inside the home who was in

danger or in need of prompt aid. We agree with the trial court that exigent circumstances

existed justifying Hensley’s warrantless entry into the residence, based upon the sequential

events leading up to the entry.   We first note that Hensley was dispatched to the residence

based upon an express concern for the welfare of small children and their mother. Upon

arrival at the dark and remote location, Hensley, who was alone, discovered “several

vehicles,” the presence of which would suggest that people might be present at the premises.

 At 7:40 p.m. it is reasonable to expect any occupants of the home to be up and about,

although no lights were visible inside the residence. The garage door stood open, and when

Hensley went inside the garage and knocked on the door to the home and announced his

presence, there was no response. The fact that he got no response after having been

dispatched on a welfare check was legitimate cause for concern. As Hensley approached

the front of the house, he noticed a broken garage window, which initially indicated to him

that “somebody could have forced entry * * * into the garage,” and he did not know if the

garage had been opened from within. We note that to the extent Hallam asserts that Hensley

testified that the broken pane did not indicate to him the existence of any exigency, Hallam

mischaracterizes Hensley’s testimony.     In the darkness Hensely was unable to discern

whether the broken window “was old or new damage,” and since nothing seemed out of
                                                                                         16

order in the garage, he continued directly to the front door with elevated concern to locate

any occupants. Hensley noted that the front door was ajar and the home was accordingly

not secure. When Hensley knocked and announced his presence, again without response,

the door opened further and Hensley observed that the home was in disarray. The interior

condition of the residence suggested to Hensley the possibility that someone had ransacked

the home in search of something, or engaged in a struggle therein, consistent with a crime

scene, and Hensley entered the residence. Applying common sense to the facts herein,

although a close call, we conclude that Hensley’s entry into Hallam’s residence was

reasonable and lawful, and the contraband he located was in plain view and subject to

seizure.

       {¶ 23} There being no merit to Hallam’s assigned error, it is overruled.         The

judgment of the trial court is affirmed.




                                           ..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Lisa M. Fannin
Richard E. Mayhall
Hon. Richard J. O’Neill
