[Cite as Cleveland v. Lynch, 2012-Ohio-5740.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 98201




                             CITY OF CLEVELAND
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  KELLY M. LYNCH
                                                      DEFENDANT-APPELLANT




                               JUDGMENT:
                         REVERSED AND REMANDED



                                   Criminal Appeal from the
                                   Cleveland Municipal Court
                                   Case No. 2011 TRC 044123

        BEFORE:           Sweeney, J., Stewart, P.J., and Celebrezze, J.
     RELEASED AND JOURNALIZED:                 December 6, 2012

ATTORNEY       FOR APPELLANT

Michael K. Webster
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS       FOR APPELLEE

Barbara Langhenry
Interim Director of Law
By: Jonathan L. Cudnik
Assistant City Prosecutor
601 Lakeside Avenue, Suite 106
Cleveland, Ohio 44114



JAMES J. SWEENEY, J.:

     {¶1} Defendant-appellant, Kelly Lynch, (“defendant”), appeals from

her conviction for driving under the influence under Cleveland Codified

Ordinances 433.01(A)(1). Defendant contends the municipal court erred by

denying her motion to suppress.      For the reasons that follow, defendant’s

appeal has merit.

     {¶2} On    July   26,   2011,   Steve   Corrachione   testified   that   at

approximately 12:40 a.m. he heard a loud boom. He looked outside and saw

defendant’s car smashed into his neighbor’s tree.     Corrachione called the

police and reported the accident. He also requested EMS and fire due to the

large amount of damage to the vehicle.
      {¶3} Corrachione went outside and spoke to defendant, who indicated

that she did not need EMS. Defendant got back into her vehicle and drove

away. Within a few minutes, the police and EMS arrived at the accident

scene. Corrachione gave them a description of defendant and the vehicle and

told them she was headed westbound down Stickney Avenue towards W. 58th

Street.

      {¶4}   Corrachione did not see defendant hit or damage anything

besides her car. There was no significant damage to the tree.

      {¶5} Officers John Kubas and Costanzo responded to the scene of the

accident. Kubas observed minor damage to the tree and debris on the tree

lawn at the accident scene. The vehicle was gone, but he observed car fluids

in the street heading in a westbound direction on Stickney Avenue. They

took Carrachione’s description of the driver and her vehicle.   Kubas and

Costanzo then followed the fluid trail to an address on Traymore Avenue. A

brown Toyota with front-end damage and deployed air bags was in the

driveway. The trail of fluid ended under that vehicle. The rear door of the

residence was open. The officers could see defendant in the kitchen with her

keys and purse on the table.

      {¶6} As they approached the rear door, they heard her say, “Oh, boy.

I’m okay. I’m inside my house.” The screen door was closed. Kubas did not

remember if defendant allowed them inside the house or not.          Officer
Costanzo, however, recalled that she did not give them consent to enter.

Kubas opened the door and entered the house “believing that [defendant] was

[their] suspect involved in this accident * * *.” He asked if she was okay. Her

reply was, “I’m okay.”

      {¶7} Kubas asked defendant to step out of the house.                Kubas

described defendant as “a little noncompliant,” but indicated she did walk out

of the house with them. Once outside, they asked defendant about her car and

she denied being involved in any kind of accident. She claimed to have been

home all night, said she did not know who was driving her car, and also

stated that “it was already like that.”

      {¶8} Kubas indicated he smelled alcoholic beverage on defendant’s

breath, causing him to believe she was intoxicated. Defendant was arrested

on suspicion of OVI, leaving the scene of the accident, and failure to control.

      {¶9} The officers had no suspicions that defendant had been drinking

prior to the time they entered her house without a warrant.

      {¶10} Officer Frank Costanzo’s testimony was substantially similar to

that of Office Kubas. Officer Costanzo stated that they entered defendant’s

house out of concern for her safety and also because she matched the

description of the suspect.     Defendant refused EMS treatment, and the

officers determined that she was not injured.       Officer Costanzo said they
charged defendant with OVI because she “displayed signs that she had been

drinking” although she refused to submit to any testing.

      {¶11} The municipal court denied appellant’s motion to suppress.

Defendant entered a plea of no contest to the charge of driving under the

influence and was found guilty. The remaining charges were nolled.

Sentence was imposed, and defendant now presents the following assignment

of error for our review:

                           ASSIGNMENT OF ERROR:

      The Trial Court erred in denying Appellant’s motion to suppress
      evidence because the warrantless search and seizure of Appellant
      was not justified by any exception to the warrant requirement of
      the Fourth Amendment.


      {¶12} “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, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed. 2d 732 (1984),

quoting United States v. United States Dist. Court for the E. Dist. of Michigan,

407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

      {¶13}     In Welsh, the court noted that while exceptions do exist,

“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.”     Welsh, 466 U.S. at 749-750, 104 S.Ct. 2091, 80 L.Ed.2d 732,
quoting United States v. United States Dist. Court, 407 U.S. at 318, 92 S.Ct.

2125, 32 L.Ed.2d 752.

      {¶14} In this case, the City argues that it established two exceptions

that justified the warrantless intrusion into defendant’s house: (1) exigent

circumstances; and (2) hot pursuit.

      {¶15}    Defendant contends that the City failed to establish any

exceptions that would justify the warrantless entry into her home. For that

reason, defendant argues the municipal court erred by denying her motion to

suppress.

      {¶16} Appellate courts should give great deference to the judgment of

the trier of fact. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134

L.Ed.2d 911 (1996); State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989).

 Accordingly, we are bound to accept the trial court’s findings of fact if they

are supported by competent, credible evidence. State v. Armstrong, 103 Ohio

App.3d 416, 420, 659 N.E.2d 844 (9th Dist.1995); State v. Williams, 86 Ohio

App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993).       However, the reviewing

court must independently determine as a matter of law, without deference to

the trial court’s conclusion, whether the trial court’s decision meets the

appropriate legal standard. State v. Claytor, 85 Ohio App.3d 623, 627, 620

N.E.2d 906 (4th Dist.1993).
     {¶17}    The hot pursuit exception provides that “a suspect may not

defeat an arrest which has been set in motion in a public place * * * by the

expedient of escaping to a private place.” United States v. Santana, 427 U.S.

38, 43, 96 S.Ct. 2406, 49 L.Ed. 2d 300 (1976). This doctrine has been found

to apply in situations where police observe a misdemeanor traffic offense and

pursue the suspect from a public place into a private one. Middletown v.

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

     {¶18} In this instance, the police did not observe defendant commit any

offense and were not in “hot pursuit.” See State v. Letsche, 4th Dist. No.

02CA2693, 2003-Ohio-6942, ¶ 24, citing, Welsh, supra (stating hot pursuit

argument is unconvincing where there was no immediate or continuous

pursuit of the petitioner from the scene of a crime).    The first time the

officers saw defendant, she was in her kitchen. Therefore, the warrantless

entry into defendant’s home was not justified under the “hot pursuit”

exception.

     {¶19} The City contends that an alternative basis for entering the home

is provided by the exigent circumstances exception. A “warrantless police

entry into a private residence is not unlawful if made upon exigent

circumstances * * *,” including when there is an emergency or urgent

situation. State v. Applegate, 68 Ohio St.3d 348, 349, 1994-Ohio-356, 626

N.E.2d 942.   Under the exigent circumstances exception, there must be
“compelling reasons” or “exceptional circumstances” to justify a warrantless

entry.     State v. Lomax, 8th Dist. No. 86632, 2006-Ohio-3725, ¶ 16, citing

Alliance v. Barbee, 5th Dist. No. 2000CA00218, 2001 Ohio App. LEXIS 1120

(Mar. 5, 2001), citing State v. Moore, 90 Ohio St.3d 47, 52, 2000-Ohio-10, 734

N.E.2d 804.

         {¶20} Both officers testified that they entered defendant’s home not

only because they believed she was their suspect, but also out of concern for

her well-being. Police are authorized to make warrantless entry into a

residence if they had a “reasonable belief that it was necessary to investigate

an emergency threatening life and limb.” Applegate, 68 Ohio St. 3d at 350;

see also Mincey v. Arizona, 437 U.S. 385, 392-393, 98 S.Ct. 2408, 57 L.Ed.2d

290 (1978). When considering the totality of the circumstances, the record

does not satisfy this exception.

         {¶21} “[W]arrantless home entry should be severely restricted when

only a minor offense has been committed * * *.” Welsh, 466 U.S. at 750. A

search without a warrant is not justified unless the exigencies of the situation

make that course imperative.       McDonald v. United States, 335 U.S. 451,

454-456, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

         {¶22} The officers did not witness the collision. The gentleman who

reported the accident spoke with defendant, and she told him she was okay.

Defendant drove away, and there is no indication that anyone suspected her
of being intoxicated or under the influence of any substance at that time.

The only property that was damaged belonged to defendant. Defendant did

not appear to be injured. No one else was involved in the accident.

        {¶23} The responding officers followed a trail of car fluid to defendant’s

residence. They observed a damaged vehicle in the driveway. Police were

justified in their belief that defendant was involved in the traffic violation, a

minor offense. However, they did not articulate factual circumstances that

would justify their failure to obtain a warrant prior to entering the home

under exigent circumstances.

        {¶24} Both officers heard defendant shouting to them that she was

okay.       Both officers could see defendant inside the house.      She did not

request any aid and continued to tell them that she was fine. Police did not

see any blood, did not witness defendant stumbling or otherwise struggling.

One officer testified that he could not be sure whether she had suffered some

type of head trauma, but the facts in the record do not support this alleged

concern.1 Although defendant was not really cooperative, by all accounts she


        Compare State v. Williams, 8th Dist. No. 88873, 2007-Ohio-4845, ¶ 26 (“The
        1

warrantless entry into the home was justified because the officers were lawfully
responding to defendant’s call for help when they observed [her ex-husband] lying
on the floor unresponsive. The officers could reasonably believe that it was an
emergency and that [he was] in peril and in immediate need of aid.”); and State v.
Minear, 191 Ohio App.3d 774, 2010-Ohio-6577, 947 N.E.2d 751, ¶ 29-30 (11th
Dist.) (police investigating car accident went to suspect’s resident where they saw
him non-responsive and laying face down in the living room, which caused them to
contact EMS and established exigent circumstances for warrantless entry into the
was coherent. In fact, the officers never called EMS and almost immediately

placed defendant under arrest after entering her house.

     {¶25} Because the City has not established any exception that would

justify the warrantless entry into defendant’s residence, the municipal court

erred by denying defendant’s motion to suppress. The assignment of error is

sustained.

     {¶26} Judgment reversed and remanded for further proceedings.

     It is, therefore, considered that said appellant recover of said appellee

its costs herein.

        It is ordered that a special mandate be sent to said 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.




JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR




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