[Cite as State v. Lunder, 2017-Ohio-84.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103653



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      JOSEPH LUNDER
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-591532-B

        BEFORE:           McCormack, J., Jones, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: January 12, 2017
ATTORNEYS FOR APPELLANT

Donald J. Malarcik
Seneca Konturas
The Gothic Building
54 E. Mill Street, Ste. 400
Akron, OH 44308



ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: John Farley Hirschauer
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

        {¶1} Appellant Joseph Lunder appeals from a judgment of the Cuyahoga County

Court of Common Pleas that convicted him of multiple drug offenses.                  Lunder’s

convictions stemmed from a 911 call made by Pastor Jerome Golden on a Sunday

morning. Golden called 911 to report that the door to a warehouse building across the

street from his church was wide open and he felt something was wrong. Maple Heights

police officers quickly responded to the report of a suspected burglary.      The officers

entered the building without a warrant through the wide open door. Instead of finding

suspects or victims, the officers stumbled on a substantial marijuana growth operation.

        {¶2} The main issue in this appeal is whether the Maple Heights police search of

the warehouse building       without first obtaining a warrant violated the Fourth

Amendment protections against unreasonable search and seizure.

        {¶3} At the outset, we recognize that vigorous nurturing of the protections

contained in the Constitution’s Fourth Amendment is essential to the American way of

life.   With that orientation, we carefully and thoroughly considered this case.          We

conclude the search conducted by the police without a warrant was not an unreasonable

one; it was, in fact, beyond just reasonable. It was solid, legal police work. As we also

conclude appellant’s convictions were supported by sufficient evidence and were not

against the manifest weight of the evidence, we affirm the trial court’s judgment.
Substantive Facts and Procedural History

       {¶4} Around 11:00 a.m. on Easter Sunday, April 22, 2014, Maple Heights police

officers responded to a 911 call from Jerome Golden, a pastor at Golden Outreach

Deliverance Center on Broadway Avenue, Maple Heights.         He called to report a possible

break-in of a warehouse building across the street from his church.     The police quickly

responded.

       {¶5} When Officer Charles Lee and Corporal Williams Kevern arrived, the door

to the building was wide open, confirming the 911 call, and there was spilled dirt on the

floor of the entrance.    Because of the size of the building, the officers waited for

additional officers to arrive before entering.   The officers announced their presence and

then entered the building to look for suspects or victims. They did not find anyone

inside the building, but observed, in plain view, items consistent with a marijuana

growing operation, including freshly cut marijuana plants, hazmat suits, fans, fluorescent

lights, oxygen masks, and soil.

       {¶6} Once the building was cleared for any suspects or victims, the officers

exited. Detective Allen Henderson arrived to further investigate the building.   Due to the

presence of a large amount of mold, Henderson called the fire department first for a

hazardous response team to examine the mold and other chemicals present.         Henderson

then telephoned the county prosecutor’s office seeking advice as to whether a search

warrant was necessary to take further actions regarding the evidence.      Henderson was

advised that a warrant would not be necessary under the circumstances in that the plants
were in plain view.    Henderson then arranged for Detective Griffs from Southeast Area

Law Enforcement (“SEAL”) Narcotics Task Force to collect the evidence found

throughout the warehouse.

       {¶7} The warehouse is a two-story building that formerly housed a wedding

accessories business, as indicated by an old sign above the building. It had a large sign

in the front window stating “Building for Rent,” which listed a telephone number to call.

The officers entered the building without first calling the rental phone number.

       {¶8} While Detective Henderson searched the building, Maple Heights police

attempted to reach the owner of the building by searching the police database for local

businesses.     They reached Jerry Skuhrovec.     Apparently he and his ex-wife Nancy

Calafato jointly owned the building before their divorce but Nancy was now the sole

owner of the building after their divorce.    Jerry Skuhrovec arrived at the scene but not

before the police already entered the building to investigate the report of the suspected

break-in.     Jerry’s brother Joseph Skuhrovec, Sr., who had the keys to the building,

arrived at the scene    later.   When Joseph Sr. went to his truck to retrieve the keys,

Detective Henderson saw in Joseph Sr.’s truck latex gloves and Tyvek suits that matched

those found in the building. The police arrested Joseph Sr.

       {¶9} The police suspected Joseph Lunder, who was married to Joseph Sr.’s

daughter Ashley Skuhrovec, was also involved in the marijuana growing operation.

Items with Joseph Lunder’s name on them were found inside the building: his 2011

tax returns;    a prescription bottle with his name on it; a Home Depot receipt for a
five-gallon bucket purchased with Lunder’s military discount; a box for an

industrial-sized 23000 BTU air conditioning unit with Lunder’s former address in Akron;

and a business card with Lunder’s username “JLunder77” on it. The DNA from the cuffs

of the Tyvek suits matched Lunder’s DNA profile.

      {¶10} Based on the items found in the warehouse, Detective Griffis obtained a

search warrant for Lunder’s residence, where he lived with his wife Ashley Skuhrovec

and her brother Joseph Skuhrovec, Jr.       In a truck parked in the driveway of the

residence, Detective Griffis found Winter Green Kodiak chewing tobacco, which was

also found in the trash at the warehouse building and inside a coat found there that

contained Lunder’s prescription, and Rock Star energy drink, also found in the building.

In the garage, Detective Griffis found a bucket lid matching a bucket from the warehouse

building, as well as latex gloves, gardening shears, timing devices, and ceramic heaters

identical to those found in the building.     Detective Griffis also found an iPad in

Lunder’s bedroom with the browser opened to websites with advice and instructions for

growing marijuana. Also found were Polaroid pictures of Lunder standing next to large

marijuana plants.

      {¶11} Lunder and Joseph Skuhrovec, Sr., were indicted for three counts of drug

offenses:   illegal manufacture of drugs or cultivation of marijuana (in an amount more

than five thousand and less than twenty thousand grams), trafficking in marijuana (in an

amount more than five thousand grams and less than twenty thousand grams), and
possession of marijuana (in an amount more than five thousand and less than twenty

thousand grams). In addition, they were indicted for possession of criminal tools.

       {¶12} Joseph Skuhrovec, Sr., filed a motion to suppress, and Lunder joined on that

motion.     Skuhrovec, however, subsequently pleaded guilty to illegal manufacture of

drugs or cultivation of marijuana, a felony of the third degree.

       {¶13} Lunder pleaded not guilty. The trial court held a hearing on his motion to

suppress and denied the motion.     The matter proceeded to a jury trial, and Lunder was

found guilty on all counts.      The trial court merged the marijuana trafficking and

marijuana possession counts into the manufacturing/cultivation count.              For his

convictions, the court sentenced him to 40 months of community control with

electronic-home monitoring for 100 days and 300 hours of community service. The court

also imposed the forfeiture specifications, retaining his seized property. In addition,

Lunder received a fine of $5,000.

       {¶14} On appeal, Lunder raises the following assignments of error:

       1.      The trial court erred when it failed to grant defendant/appellant’s
               motion to suppress evidence seized by police without a warrant in
               violation of defendant/appellant’s Fourth Amendment Rights against
               unreasonable search and seizure.

       2.      The trial court erred in failing to grant the defendant’s Ohio Crim.R.
               29 Motions for Acquittal.

       3.      The trial court erred in entering judgment on the verdict because it
               was not supported by sufficient evidence.

       4.      The trial court erred in entering judgment on the verdict that was
               against the manifest weight of the evidence.
Warrantless Search

       {¶15} Under the first assignment of error, Lunder claims the evidence for his

convictions was seized by the police without a warrant, in violation of his Fourth

Amendment right against unreasonable search and seizure.

       {¶16} An appellate review of a motion to suppress presents a mixed question of

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

8. We accept the trial court’s findings of fact if they are supported by competent, credible

evidence. State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶

22 (8th Dist.).   Once we accept the factual findings as true, however, “‘we must

independently determine, as a matter of law and without deference to the trial court’s

conclusion, whether the trial court met the applicable legal standard.’” Id., quoting State

v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998).

       {¶17} We recognize that, subject to certain exceptions, warrantless searches and

seizures are per se unreasonable pursuant to the Fourteenth Amendment of the United

States Constitution and Article I, Section 14 of the Ohio Constitution. Under the full

circumstances of this case, the procedures followed and resultant conduct of the Maple

Heights police officers is lawful pursuant to the well-established “community-caretaking

exception” to the search warrant requirement, also referred to as the “emergency-aid

exception” or “exigent-circumstance exception.” State v. Dunn, 131 Ohio St.3d 325,

2012-Ohio-1008, 964 N.E.2d 1037, ¶ 15.
       {¶18} The courts have always recognized that police officers have roles other than

investigating criminal conduct and developing and maintaining evidence of crime.

Police officers are also charged with the duty to “prevent crime, preserve the peace, and

protect persons and property.” State v. Russell, 127 Ohio App.3d 414, 417, 713 N.E.2d

56 (9th Dist.1998).    Under this exception, Ohio courts have recognized that a police

officer may lawfully enter a structure to protect the property of the owner or occupant

when the police reasonably believe that the premises have been or are being burglarized.

State v. Sladeck, 132 Ohio App.3d 86, 89, 724 N.E.2d 488 (1st Dist.1998).

       {¶19} Therefore, the case before us turns on whether the officers on that Sunday

morning reasonably believed the building had been breached, requiring        an immediate

action to safeguard either life, property, or both.

       {¶20} “[I]n determining whether the totality of the facts and circumstances known

to an officer give rise to a reasonable belief that immediate entry is necessary,” we apply

an objective standard.         State v. Simmons, 4th Dist. Highland No. 05CA4,

2006-Ohio-953, ¶ 39.     The question is    whether a prudent and reasonable officer would

see a need to act immediately. Wayne v. United States, 318 F.2d 205 (D.C.Cir.1963).

“Reasonable belief is assessed from the facts and circumstances known to the officers,

and from their point of view.” Lakewood v. Simpson, 8th Dist. Cuyahoga No. 80383,

2002-Ohio-4086, ¶ 14.

       {¶21} At the suppression hearing, Pastor Golden testified that he was at his church,

located across the street from the warehouse building, every Sunday morning.      On most
Sunday mornings, there would be a van parked in front of the building. On that Sunday

morning, the front door of the building was “wide open” but there was no van in sight and

no one was around.        Based on his familiarity with the building on Sunday mornings,

he felt “something was wrong.” He called 911 to inform the police that the front

entrance of the building across the street from his church was wide open, which was

unusual.

       {¶22} Officer Charles Lee and Corporal William Kevern responded to the dispatch

call for an open building, later joined by Detective Allen Henderson.     All three testified

at the hearing.   Officer Lee testified that there were burglaries and robberies in that

Maple Heights neighborhood and, prior to the incident, he had personally responded to

break-ins and burglaries in the area.   Detective Allen Henderson testified at the hearing

that there were 34 burglaries within a year within five-square miles of the building.

       {¶23} When Officer Lee arrived at the scene with his supervisor Corporal Kevern,

what they observed confirmed the 911 call: the front entrance to the building was wide

open and no one appeared to be around. On a Sunday morning, this raised suspicions.

Indeed, Officer Lee and Corporal Kevern requested additional backup officers before

entering the building — the fear of the possibility of interrupting nefarious criminal

activity in progress was real.

       {¶24} To assess whether the officers’ action was reasonable, we bear in mind that

the nature of the duty of policemen and firemen at times requires them “‘to act, not to

speculate or meditate on whether the report is correct.’” State v. Johnson, 8th Dist.
Cuyahoga No. 96983, 2012-Ohio-1344, ¶ 11, quoting Wayne v. United States, 318 F.2d

205, 212 (D.C.Cir.1963). We must also judge the reasonableness of the officer’s belief

from the perspective of the officers on the scene, rather than with the 20/20 vision of

hindsight.

       {¶25} How reasonable then was the officers’ action?      Was there any aspect of the

entry and search of the property that had a disingenuous, unsupportable, unsavory,

alternative purpose to it?   Was the police department operating in genuine good faith in

responding to the 911 call, or was their action merely a pretext to improperly gather

evidence of criminal misconduct that they suspected or knew was taking place?        Should

the officers have first called the phone number of the sales or rental agents of the building

listed on the window sign before going in?       Were the officers cutting corners, hasty,

negligent, careless, or heavy handed?    Did the totality of the circumstances that morning

require a court-ordered search warrant prior to their entering the building?

       {¶26} Given the totality of the facts and circumstances known to the Maple

Heights police officers on that Sunday morning, the officers reasonably interpreted the

911 call as reporting a possible break-in in progress.   They understandably decided that

time was of the essence.     They were duty bound to move immediately to prevent the

possible endangering of human life or destruction of real or personal property inside an

apparently breached building. Until they went in, until they saw room to room for

themselves, they could not know for certain the degree of threat that existed.     This was
diligent and prudent police work.     This safety forces work does not constitute an

unreasonable search and seizure.

      {¶27} It is worth noting the measured Fourth-Amendment-based progression of

action that is evident through the officers’ response and investigation. The responding

officers took steps to abide by the mandate of the reasonable search and seizure

requirement of the Fourth Amendment when it became clear that they had entered into not

just a possible breaking and entering, but an industrial-sized marijuana production

operation. First, they stopped to obtain an opinion from the county prosecutor’s office

as to the necessity of a search warrant and were advised that immediate circumstances

and bulk evidence in plain view did not require a warrant.       Further, when a target of

their investigation was identified as Mr. Lunder, a search warrant was sought and

obtained before an attempt to search his home.    The police department well understood

the nuances — there was a time to move as contrasted with the time to pause.    So did the

trial court. The court properly denied the motion to suppress.

      {¶28} When Pastor Golden placed the 911 call on that Sunday morning, he was

reaching out to a community lifeline, his local police department. His instinct and

judgment was that something was out of place, something was wrong across the street, it

was something unusual, and it needed to be addressed then and there. He was not

calling to report uncollected trash or a pothole but to report that a neighboring property

may have been unlawfully breached by unauthorized persons.       The Maple Heights Police

Department responded to an at-risk area accordingly. Viewed in its totality, the police
conduct in this case constituted constitutionally sustained, exemplary community

policing.

       {¶29} The first assignment of error lacks merit.

Sufficiency and Manifest Weight of the Evidence

       {¶30} Under the second, third, and fourth assignments, Lunder claims his

convictions were not supported by sufficient evidence and they were against the manifest

weight of the evidence.   We address these assigned errors together.

       {¶31} When considering a challenge of the sufficiency of the evidence, a

reviewing court examines the evidence admitted at trial and determines whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus.   “The relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.” Id.       A reviewing

court is not to assess “whether the state’s evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.”         State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

       {¶32} Lunder argues that the state did not present sufficient evidence to prove

possession, an essential element of the drug offenses he was charged with.

       {¶33} Pursuant to R.C. 2925.01(K), “possession” means “having control over a

thing or substance, but may not be inferred solely from mere access to the thing or
substance through ownership or occupation of the premises upon which the thing or

substance is found.”

      {¶34} Possession of a controlled substance may be actual or constructive.   State v.

Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d 585 (8th Dist.1993). “Actual possession

requires ownership and, or, physical control.” State v. Messer, 107 Ohio App.3d 51, 56,

667 N.E.2d 1022 (9th Dist.1995). Constructive possession, on the other hand, exists

when a person “knowingly exercises dominion and control over an object, even though

that object may not be within his immediate physical possession.” State v. Hankerson,

70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. Dominion and control may be

proved by circumstantial evidence alone. State v. Trembly, 137 Ohio App.3d 134, 141,

738 N.E.2d 93 (8th Dist.2000).

      {¶35} Here, the state presented substantial circumstantial evidence showing not

only Lunder’s presence in the warehouse but also his direct involvement in the marijuana

growing operation.     Nancy Calafato testified that Lunder leased the building from her

and paid her monthly rent and utilities in cash, which Joseph Sr. would bring her every

month. On one occasion, Lunder thanked Calafato for letting him use the building.

Lunder’s business card, tax returns, Home Depot receipt for a five-gallon bucket,

medication prescription, his chewing tobacco and energy drinks, as well as gardening

shears were found in the warehouse.      A box for an industrial-sized 23,000 BTU air

conditioning unit in the building was addressed to “Joseph Lunder” at his former Akron

residence. His DNA was consistent with the DNA from the cuffs of the Tyvek suits
found in the building. Websites with instructions on marijuana growing were opened in

an iPad found in his bedroom. Several Polaroid pictures showed Lunder standing next

to large marijuana plants.

       {¶36} Thus, the state produced overwhelming circumstantial evidence to prove

Lunder’s possession of the illegal substance at issue, both actual and constructive.

Lunder’s sufficiency-of-evidence claim regarding his offense of possession of criminal

tools likewise fails.

       {¶37} While the test for sufficiency requires a determination of whether the state

has met its burden of production at trial, a manifest-weight challenge questions whether

the state has met its burden of persuasion.   Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d

541.   Unlike challenges to the sufficiency of the evidence, which raise a question of law,

manifest weight challenges raise factual issues.      When a defendant asserts that his

conviction is against the manifest weight of the evidence, the court,

       “reviewing the entire record, weighs the evidence and all reasonable
       inferences, considers the credibility of witnesses and determines whether in
       resolving conflicts in the evidence, the jury clearly lost its way and created
       such a manifest miscarriage of justice that the conviction must be reversed
       and a new trial ordered. The discretionary power to grant a new trial should
       be exercised only in the exceptional case in which the evidence weighs
       heavily against the conviction.”

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶38} Mindful that the weight to be given the evidence presented by the state and

the credibility of the witnesses are primarily for the trier of the facts, State v. DeHass,
10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus, we cannot

conclude the jury in this case lost its way and created such a manifest miscarriage of

justice that Lunder’s   convictions must be reversed and a new trial ordered. The second,

third, and fourth assignments of error are without merit.

       {¶39} Judgment is affirmed.

       It is ordered that appellee recover of appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.       Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

____________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., CONCURS;
PATRICIA ANN BLACKMON, J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)

PATRICIA ANN BLACKMON, J., DISSENTING:

       {¶40} I respectfully dissent from the majority opinion because I believe that the

trial court should have granted the defendant’s motion to suppress.

       {¶41} Based on the facts presented at the suppression hearing, the police did not

have a reasonable belief that immediate action was necessary to enter the building without
a warrant.    The majority is of the belief that when a neighbor calls 911 to report what

“they” perceive to be an unusual situation, the police have a right to disregard the Fourth

Amendment and investigate even when         there are no signs of immediate danger.

       {¶42} At the hearing, Pastor Golden, the neighbor, testified that ordinarily on

Sundays, he saw a white Econo-line van parked in front of the building and saw

individuals moving tools in and out of the building. On this Sunday, the door was open,

but no van was in sight. The majority believes this was cause for immediate alarm and

entry into the building.

       {¶43} Interestingly, the officers did not enter immediately; they took the time to

wait for back-up, but failed to further question the pastor or call the telephone number

prominently displayed on the front window to further determine whether immediate entry

was necessary.    Without more evidence of a break-in, I believe that the entrance without

a warrant violated the Fourth Amendment.       In fact, if speculation is the basis for entry, it

could just as easily been speculated that someone left the door open while in the process

of moving in or out of the premises. In fact, the dispatch reported the incident as an

“open door” not a burglary. A door simply open with no sign of forced entry is not

enough to allow for a warrantless search.

       {¶44} The police bear a heavy burden when attempting to demonstrate an urgent

need that might justify warrantless searches or arrests. State v. Sheppard, 144 Ohio

App.3d 135, 140-141, 759 N.E.2d 823 (1st Dist.2001), citing Welsh v. Wisconsin, 466

U.S. 740, 749-750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). As such, the decision to
enter must be based on more than a hunch. United States v. Radka, 904 F.2d 357, 362

(6th Cir.1990).   The key issue is whether the officers had reasonable grounds to believe

that some kind of emergency existed, and “the officer must be able to point to specific

and articulable facts, which, taken with rational inferences from those facts, reasonably

warrant intrusion into protected areas.”        State v. White, 175 Ohio App.3d 302,

2008-Ohio-657, 886 N.E.2d 904, ¶ 17 (9th Dist.). The fact that the pastor stated that the

front door was “wide open” and that this was “unusual” was not enough alone to support

reasonable grounds that an emergency existed.

      {¶45} The state cited to several cases where courts have held that the exigent

circumstance exception applied when the home is being burglarized or has been

burglarized.   However, in those cases, there was definitive evidence of a forced entry.

See State v. Sladeck, 132 Ohio App.3d 86, 724 N.E.2d 488 (1st Dist.1998) (police entered

home after call from a neighbor who saw two juveniles kick in the window but was

unsure whether the suspects were still inside); State v. Overholser, 2d Dist. Clark No.

96-CA-0073, 1997 Ohio App. LEXIS 3571 (July 25, 1997) (police entered home after

call from alarm company that alarm had alerted); State v. Canty, 9th Dist. Lorain No.

90CA004775, 1990 Ohio App. LEXIS 3604 (Aug. 22, 1990) (police entered home after

call from neighbor who saw broken basement window, back gate open, and no response

at door); State v. Durbin, 12th Dist. Butler No. CA87-12-167, 1988 Ohio App. LEXIS

2746 (July 11, 1988) (police entered home after anonymous call that someone with

flashlight was behind a house where no one was home; police saw back door to basement
ajar and doorknob on ground); United States v. Estes, 479 F.2d 1273 (6th Cir.1973)

(police responded to radio dispatch of breaking and entering and entered after finding

apartment door wide open with pry marks.)

       {¶46} Here, unlike the cases above, the circumstances confronting the police were

relatively benign: a vacant building with an open door at 11:00 a.m. This was not an

emergency situation in which the police could not wait for a warrant to be obtained.

There was no indication how long the door had been open.      There was no sign of forced

entry, no pry marks on the front door, and no broken windows. No one reported a

suspicious person in the area of the building.   No alarm had been triggered.   There was

no evidence that there was an immediate threat to person or property.

       {¶47} In fact, Officer Lee first testified that he was concerned that someone was

“habitating” in the building.    This would not create an urgent matter requiring an

intrusion without a warrant.    On redirect, Officer Lee admitted that he did not know

whether someone was in need of assistance or whether the building was being

burglarized.   These facts are different from the cases cited by the state where there were

positive indications that the property was in fact being burglarized, i.e., broken window,

alarm triggered, suspicious person seen, door pried open, person observed kicking a

window open.     In the instant case, the officers’ intrusion was based solely on a “hunch”

that something was amiss.

       {¶48} This case was more akin to the decision of this court in State v. Robinson,

8th Dist. Cuyahoga No. 83508, 2004-Ohio-4483. In Robinson, we held that the exigent
circumstance exception to a warrantless search did not apply.      In that case, a neighbor

informed the officer he had observed cars coming and going at all hours of the night from

a supposedly vacant house. The responding officer observed the house with the lights

on and tracks showing recent vehicular traffic.    There were no noises coming from the

house, which appeared to be empty.      The officer suspected teenagers were partying in

what he believed was a vacant house and entered the unlocked door where he found 290

pounds of marijuana. We reversed the trial court’s denial of the defendant’s motion to

suppress, concluding that the fact that the door was unlocked and the officer believed that

teenagers were partying in what he believed to be a vacant house did not present an

emergency situation that would allow the police to enter without first obtaining a warrant.

       {¶49} The Ninth District decision in State v. Hendrix, 9th Dist. Summit No. 27217,

2014-Ohio-3577, is even more similar to the facts in our case.      In Hendrix, a neighbor

called police at 10:30 a.m. to report that his neighbor’s garage door was open and that no

one had been seen at the house.        He told the police that this was unusual.        The

responding officer testified that based on the call, he was concerned that the person living

in the house was in need of assistance or that there had been a burglary.        When the

officers arrived on the scene, the garage was open and no cars were in the garage.    There

was no evidence of a break-in.    The mail carrier told the officers that the mail had not

been picked up from the prior day, but that this was not unusual. The officers entered

the home through an unlocked door in the garage and found that the bathroom was being

used to grow marijuana.
       {¶50} The Hendrix court held that the circumstance did not, when viewed

objectively, lead one to believe that anyone in the house was in need of immediate

assistance. The court found that the police could not confirm how long the door was

open or whether the resident had been absent for a significant length of time.    There was

no sign of a break-in, and the mail carrier confirmed that the fact that the mail was not

retrieved was not out of character.    The court concluded:

       We share the officers’ concern for the safety of area citizens, but those
       concerns must rise to the level of a reasonable belief that someone in the
       residence is in need of immediate aid, see [State v.] Nields, [93 Ohio St.3d
       6, 15, 752 N.E.2d 859 (2001)], in order to justify a warrantless intrusion
       into a private residence. Given the record before us, we cannot say that
       the trial court erred in concluding that the emergency aid exception did not
       apply in light of the circumstances present. This is not to say that calls by
       concerned neighbors accompanied by the appropriate circumstances at the
       scene can never satisfy the emergency aid exception; we only decide that
       the trial court did not err in finding that the emergency aid exception did not
       apply to the situation faced by Officers Hall and Semonin. In other words,
       when objectively viewed, the exigencies of the situation were not so
       compelling as to render a warrantless entry and search reasonable under the
       circumstances. See Mincey, 437 U.S. at 394. Instead, their entry was
       based on the mere possibility that there might be someone inside who might
       be in need of assistance. Such is insufficient to warrant entry under the
       emergency aid exception.

Id. at ¶ 13.

       {¶51} In conclusion, I believe that when objectively viewed, the simple fact that

the door to the business was open was not so compelling as to render the warrantless

entry and search reasonable under these circumstances.           The community-caretaker

doctrine cited to by the majority simply is not applicable here. There was absolutely no

evidence that a person was in harms way or that property was at risk.       I simply cannot
accept that an open door of a commercial building on a Sunday morning is, in and of

itself, an occurrence that reasonably and objectively creates the impression of an

immediate threat to person or property to justify a warrantless search of the premises.

Whatever suspicion or concern the open door aroused in the officers falls far short of that

needed to justify the warrantless entry into the building. To hold otherwise requires an

adopting of a security check exception to the warrant requirement or stretch of the

emergency exception far beyond its intended and logical reach.       In my judgment, the

Fourth Amendment rights of all citizens outweigh the expectations of some business

owners that law enforcement authorities will enter and secure commercial premises found

open during the day.    The officers needed a warrant, and the matter should have been

presented to a neutral, detached magistrate.   They surely had plenty of time to get one,

and the Fourth Amendment requires one when faced with these facts.

       {¶52} I would reverse the trial court’s decision denying the motion to suppress and

vacate Lunder’s convictions.
