[Cite as State v. Diamond, 2019-Ohio-2527.]

                                 IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellant,                :               No. 18AP-489
                                                                (M.C. No. 2017 CRB 023639)
v.                                                   :
                                                                (REGULAR CALENDAR)
Rusty Diamond,                                       :

                 Defendant-Appellee.                 :



                                              D E C I S I O N

                                     Rendered on June 25, 2019


                 On brief: Zach Klein, City Attorney, Lara N. Baker,
                 Melanie R. Tobias, and Orly Ahroni, for appellant. Argued:
                 Orly Ahroni.

                 On brief: Campbell Law, LLC, and April F. Campbell, for
                 appellee. Argued: April F. Campbell.

                      APPEAL from the Franklin County Municipal Court

LUPER SCHUSTER, J.
        {¶ 1} Plaintiff-appellant, State of Ohio, appeals from a decision and entry of the
Franklin County Municipal Court granting in part and denying in part the motion to
suppress of defendant-appellee, Rusty Diamond. For the following reasons, we reverse.
I. Facts and Procedural History
        {¶ 2} By complaint filed November 11, 2017, the state charged Diamond with one
count of domestic violence in violation of R.C. 2919.25, a first-degree misdemeanor; and
one count of assault in violation of R.C. 2903.13, a first-degree misdemeanor.               The
complaint stemmed from an incident in which T.T., Diamond's girlfriend and the mother
of Diamond's child, called 911 alleging Diamond bit her on the nose. Diamond entered a
plea of not guilty and requested a jury trial.
No. 18AP-489                                                                                 2


          {¶ 3} Subsequently, on January 29, 2018, Diamond filed a motion to suppress
(1) the evidence police obtained following their warrantless entry into Diamond's residence;
(2) T.T.'s 911 call; and (3) Diamond's various statements made to police both before and
after police gave him Miranda1 warnings. The state opposed the motion, and the trial court
set the matter for a hearing.
          {¶ 4} At the suppression hearing on April 12, 2018, Joshua Bell, an officer with the
Columbus Division of Police, testified that on November 10, 2017 he responded to a
dispatch to 340 South Powell Avenue where a woman reported having been struck by her
child's father and was requesting police presence. The state played T.T.'s 911 call during
the hearing during which she says, through sobs, that Diamond bit her nose in front of their
son and that she was bleeding. Officer Bell testified he responded to the scene, without
running lights and sirens on his police cruiser, with his partner, Officer Jared Randall.
          {¶ 5} The state also played the video recording from Officer Bell's body camera. As
depicted in the video, Diamond's house had a solid front door with an accompanying screen
door in front of it. When the officers arrived at Diamond's residence and shone their
flashlights at the windows, Diamond opened the inner door, stated everything was fine, and
said he only opened the door to determine the source of the lights. The officers told
Diamond to come outside to talk to them and opened the screen door. T.T. is visible in the
video behind Diamond and can be heard talking. Officer Bell testified that T.T. was more
visible in person than she is on the video and that she had blood on her. Further, Officer
Bell testified he could hear T.T. contradicting Diamond's assertions that everything was
fine.
          {¶ 6} Diamond did go outside with the officers to talk to them, at which point T.T.'s
son began screaming "daddy." (State's Ex. A at 23:57:24-59.) At that point, T.T. took her
son farther into the house and away from the officers out front, but she did not close the
inner door. After talking to Diamond for a few minutes but without asking for explicit
permission to enter the house from either Diamond or T.T., Officer Bell entered the house
and walked to the kitchen where he encountered T.T. and her son. T.T. had blood on her



1   Miranda v. Arizona, 384 U.S. 436 (1966).
No. 18AP-489                                                                               3


nose, shirt, and pants. While inside the house, Officer Bell obtained an official statement
from T.T. regarding the incident.
       {¶ 7} After talking with and observing T.T., Officers Bell and Randall handcuffed
Diamond, searched his person, and placed him in a police cruiser. Once inside the cruiser,
but before the officers read Diamond his Miranda rights, Diamond talked to the officers for
approximately one hour. The state also played the video recording from the camera inside
the police cruiser. Though Diamond admitted that he and T.T. would argue, he denied that
he either bit or hit T.T.
       {¶ 8} The officers then recited the Miranda rights to Diamond, and he initially
requested a lawyer. Subsequently, however, Diamond indicated that he wanted to continue
to talk to the police, and he again denied that he had bitten or harmed T.T. When the
officers confronted Diamond about T.T. having a bloody bite mark on her nose, Diamond
stated that T.T. had somehow managed to bite herself on the nose in an attempt to frame
him.
       {¶ 9} Following the hearing, the trial court accepted additional briefing from the
parties on the issues raised at the hearing. In a June 11, 2018 decision and entry, the trial
court granted in part and denied in part Diamond's motion to suppress. Specifically, the
trial court denied Diamond's motion to suppress as it related to the 911 call and Diamond's
statements to police both before and after he received his Miranda rights. However, the
trial court also concluded that because no exigency existed by the time police arrived at the
scene and because police never obtained explicit consent to enter the home, suppression
was warranted for all evidence obtained as a result of the illegal entry, including the body
camera footage obtained inside the house and T.T.'s statement. The state timely appeals
pursuant to Crim.R. 12(K) and R.C. 2945.67(A).
II. Assignments of Error
       {¶ 10} The state assigns the following errors for our review:
               [1.] The trial court erred in finding that the warrantless entry
               into the home was unlawful and not justified by the exigent
               circumstances/emergency aid exception to the warrant
               requirement and suppressing the evidence obtained as a result
               of the entry.
No. 18AP-489                                                                               4


              [2.] The trial court erred in finding that the police unlawfully
              entered the home without consent and suppressing the
              evidence obtained as a result of the entry.

For ease of discussion, we address the state's assignments of error out of order.
III. Second Assignment of Error – Consent
       {¶ 11} In its second assignment of error, the state argues the trial court erred in
concluding that police unlawfully entered the home without consent and granting
Diamond's motion to suppress on that basis.
       {¶ 12} " '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. 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.' "
(Citations omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
       {¶ 13} The trial court granted in part Diamond's motion to suppress on the grounds
that the officers did not obtain consent to enter the home and because exigent
circumstances did not exist to justify the warrantless entry. The Fourth Amendment to the
United States Constitution as applied to the states through the Fourteenth Amendment, as
well as Article I, Section 14 of the Ohio Constitution, prohibit the government from
conducting warrantless searches and seizures, rendering them per se unreasonable unless
an exception applies. State v. Mendoza, 10th Dist. No. 08AP-645, 2009-Ohio-1182, ¶ 11,
citing Katz v. United States, 389 U.S. 347, 357 (1967), superseded by statute on other
grounds. Courts must exclude evidence obtained by searches and seizures that violate the
Fourth Amendment. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 181.
       {¶ 14} In granting in part Diamond's motion to suppress, the trial court stated that
Officer Bell did not obtain consent and then proceeded to analyze the matter to determine
whether exigent circumstances justified the entry into the home. However, the trial court
No. 18AP-489                                                                                5


limited its consideration of consent to Diamond's explicit consent and did not consider
whether T.T. provided consent to enter the home.
       {¶ 15} "One specifically established exception to the warrant requirement is 'a
search that is conducted with consent.' " State v. Hawkins, 10th Dist. No. 15AP-35, 2016-
Ohio-1404, ¶ 98, quoting State v. Portman, 2d Dist. No. 2013-CA-68, 2014-Ohio-4343, ¶ 11,
citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). "Further, '[c]onsent to search
can be "obtained, either from the individual whose property is searched, or from a third
party who possesses common authority over the premises." ' " Hawkins at ¶ 98, quoting
Portman at ¶ 11, quoting Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). So long as a third
party who possesses common authority over the property voluntarily consents to the
search, law enforcement officers may conduct a search without a warrant. Hawkins at ¶
98, citing State v. Reynolds, 9th Dist. No. 19062 (Oct. 27, 1999), citing United States v.
Matlock, 415 U.S. 164 (1974). " ' "Common authority" exists when two or more persons
have joint access or control over the property, each has the right to consent to permit
inspection, and each has assumed the risk that any one of them might so consent.' "
Hawkins at ¶ 98, quoting Reynolds, citing Matlock at 172, fn. 7. Moreover, " '[e]ven if an
officer erroneously believes that a third-party is authorized to give consent, using an
objective standard, third-party consent is valid if an officer looking at the then-available
facts could reasonably conclude that the third-party had apparent authority to consent.' "
Hawkins at ¶ 99, quoting Portman at ¶ 13.
       {¶ 16} Here, T.T. called 911 requesting police assistance and was occupying the
residence when police arrived. The Supreme Court of Ohio has held that when a person
has access to a home and calls for the authorities to respond, police then have "ample reason
to believe that [the third-party] had authority to consent to a search of the home," rendering
the search valid. State v. Tibbets, 92 Ohio St.3d 146, 166 (2001). Thus, we conclude T.T.'s
act of calling for police assistance and her not objecting when police came inside the
residence to assess her needs constituted her consent to enter, and the police had the
requisite reasonable belief that T.T. had apparent authority to give consent. The trial
court's failure to consider whether T.T. provided the requisite consent to enter the
premises, or, alternatively, failure to construe T.T.'s actions as providing consent, was
erroneous.
No. 18AP-489                                                                                6


       {¶ 17} Having concluded T.T. provided consent for the officers to enter the home,
the trial court erred in granting in part Diamond's motion to suppress on the grounds of
lack of consent. Thus, the trial court erred in suppressing the body camera footage obtained
inside the home and T.T.'s statements to the officers. Accordingly, we sustain the state's
second assignment of error.
IV. First Assignment of Error – Exigent Circumstances
       {¶ 18} In its first assignment of error, the state argues the trial court erred in
concluding exigent circumstances did not exist to justify the warrantless entry into the
home. However, having determined in our resolution of the state's second assignment of
error that the police officers had T.T.'s consent to enter the home, the state's first
assignment of error is moot.
V. Disposition
       {¶ 19} Based on the foregoing reasons, the trial court erred in determining police
officers did not have consent to enter the home, and it erred in suppressing the body camera
footage obtained inside the home and T.T.'s statement based on that erroneous conclusion.
Having sustained the state's second assignment of error, rendering moot the state's first
assignment of error, we reverse the judgment of the Franklin County Municipal Court and
remand this matter to that court for further proceedings consistent with this decision.
                                                     Judgment reversed; cause remanded.


                      BRUNNER and BEATTY BLUNT, JJ., concur.

BRUNNER, J., concurring.
       {¶ 20} I concur in the majority decision sustaining the state's second assignment of
error because T.T. gave consent for the police to enter the home she shared with Diamond
when she called 911 to request aid in her home. She had left the door open for the officers
and welcomed the officer's aid when he entered the home. The warrantless entry was
justified by her consent and I concur in reversing the trial court's decision on the motion to
suppress on that basis.
No. 18AP-489                                                                               7


       {¶ 21} The trial court's decision, however, only addressed explicit consent, that of
Diamond, thereafter relying on the doctrine of exigent circumstances.             The Fourth
Amendment to the U.S. Constitution 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 or things to be seized.

(Emphasis added.) Homes are "first among equals" when it comes to spaces protected by
the Fourth Amendment. Florida v. Jardines, 569 U.S. 1, 6 (2013). A search of a home
absent a warrant is "presumptively unreasonable." Collins v. Virginia, __ U.S. __, 138
S.Ct. 1663, 1670 (2018). Thus, "[w]hen a defendant moves to suppress evidence recovered
during a warrantless search, the state has the burden of showing that the search fits within
one of the defined exceptions to the Fourth Amendment's warrant requirement." State v.
Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 18, citing Athens v. Wolf, 38 Ohio
St.2d 237, 241 (1974).
       {¶ 22} One exception to the warrant requirement specifically concerning homes is
when an ongoing emergency or exigent circumstance "make[s] the needs of law
enforcement so compelling that a warrantless search is objectively reasonable under the
Fourth Amendment." (Brackets, quotation marks, and citations omitted.) Kentucky v.
King, 563 U.S. 452, 460 (2011). Examples of this include law enforcement's need "to assist
persons who are seriously injured or threatened with such injury," or, phrased differently,
to provide "emergency assistance to an injured occupant or to protect an occupant from
imminent injury." Brigham City v. Stuart, 547 U.S. 398, 403 (2006); see also Michigan v.
Fisher, 558 U.S. 45, 47-48 (2009) (per curiam). Other classic examples of such exigent
emergencies are "hot pursuit" of a fleeing suspect, United States v. Santana, 427 U.S. 38,
42-43 (1976), entering a burning building to put out a fire and investigate its cause,
Michigan v. Tyler, 436 U.S. 499, 509-10 (1978), or to prevent the imminent destruction of
evidence, Cupp v. Murphy, 412 U.S. 291, 296 (1973). Whatever the species of exigency,
however, there must be a "compelling need for official action and no time to secure a
warrant." Tyler at 509.
No. 18AP-489                                                                                8


       {¶ 23} In this case, the State argued that the need to render emergency aid to T.T.
was such an exigency. (State's Brief at 12-30.) The trial court disagreed, finding that, while
T.T. was injured, her injuries did not appear serious, Diamond had already been secured,
and the officer testified that he entered the house to "check on" her and to "get her side of
the story," not to render emergency aid. (June 11, 2018 Decision & Entry at 2-3.) While the
majority finds the state's first assignment of error moot, I would emphasize that there is no
clear error in the trial court's conclusions based on its factual determinations concerning a
lack of exigent circumstances. Nor do I detect any error of law in the trial court's
enunciation of the exigent circumstances exception to the warrant requirement.
       {¶ 24} With that addition, I respectfully concur in the decision of the majority.
