[Cite as State v. Smith , 2018-Ohio-3436.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellant                       Hon. W. Scott Gwin, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 18 CA 00011
ALBERT N. SMITH

        Defendant-Appellee                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 17 CR 00665


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        August 24, 2018



APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

WILLIAM C. HAYES                               JOSHUA E. HALL
PROSECUTING ATTORNEY                           844 South Front Street
DANIEL J. BENOIT                               Columbus, Ohio 43206
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 18 CA 00011                                                        2

Wise, John, P. J.

       {¶1}      Plaintiff-Appellant State of Ohio appeals the decision of Licking County

Court of Common Pleas granting Defendant-Appellee Albert N. Smith’s motion to

suppress.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}      On February 11, 2017, the City of Heath Fire Department (HFD) received a

call about a potential house fire at 197 Quaker Road in Heath, Ohio. Firefighters arrived

on the scene at approximately 12:15 p.m. (T. at. 7 -8). Among some of the first responders

to arrive, was Firefighter Douglas Brown. Brown is also an investigator and fire inspector.

As fire inspector, Brown is responsible for investigating fires and their origins within the

city of Heath. (T. at 7). When the firefighters first arrived, there was a light haze of smoke

coming from the top of the roof and heavy smoke conditions inside of the home. (T. at 9).

Based on his observations on the scene of the nature and color of the smoke, Brown

anticipated that the fire was likely contained in one room or was located in the basement.

(T. at 9-10). Eventually forced entry was made into the home by the fire department.

There was heavy smoke as the firefighters entered the home, and it was determined that

they were likely dealing with a basement fire. (T. at 10-12). The fire was still active inside

the structure at this time. (T. at 11). Entry was made into the basement, and when water

was introduced, firefighters noticed arcing. (T. at 14). The electricity would eventually be

cut to the home, the fire was extinguished, and the ventilation of the home was started.

(T. at 13-14).

       {¶3}      Once the fire was mostly knocked down and under control, Brown began

his investigation into the cause of the fire. (T. at 15). Brown investigated the basement of
Licking County, Case No. 18 CA 00011                                                        3


the home. As he was attempting to locate the fuse box, he noticed that a bookshelf that

was in the comer had been moved and exposed a hidden room. (T. at 17 -18). This secret

room contained bright green vegetation and a lot of electrical lines and surge protectors.

(T. at 18). Brown stated that his focus was on the electrical issues in the room as opposed

to the vegetation. (T. at 21). Brown believed that the origin of the fire was in the basement,

and it appeared to be electrical in nature. (T. at 22). Brown was unable to pinpoint the

point of origin, and because of this, he was concerned that there could be a secondary

fire. (T. at 23-24). He stated that the cause of the fire did not appear to be arson, but

rather appeared to be accidental. (T. at 24). The cause of the fire in the official report was

listed as indeterminate. (T. at 24).

       {¶4}    At some point during the fire-suppression process, Appellee arrived on

scene and met with firefighting personnel. (T. at 27). Appellee was kept outside the home

and measures were taken by the firefighters to ensure that Appellee did not enter the

residence. (T. at 27-28).

       {¶5}    Brown secured the home, and the Central Ohio Drug Enforcement Task

Force (CODE) was contacted to investigate the apparent marijuana grow. Arson was not

suspected and CODE was called in specifically to investigate the marijuana grow. (T. at.

36-37). Non-firefighting personnel were prohibited from entering the home until the

firefighter in command made the call that the fire is fully extinguished and the residence

is safe to enter. (T. at 29).

       {¶6}    Detective Alan Thomas, member of CODE, was contacted by HFD at 1:07

p.m. regarding the apparent marijuana grow operation located in the basement. (T. at 41).

Det. Thomas arrived on scene approximately 30 minutes after the call. (T. at 42). Prior
Licking County, Case No. 18 CA 00011                                                    4


to entering the residence, Det. Thomas was assured by HFD that the fire was fully

extinguished, electricity had been cut, and it was safe for him to enter. (T. at 53). Det.

Thomas could not see the grow operation from outside the home and had to enter the

residence and go down the steps into the basement to locate the grow room. (T. at. 55).

Upon locating the grow room, Det. Thomas observed marijuana plants, potting soil and

equipment used for growing marijuana. Det. Thomas then got his camera, gloves and

evidence collection supplies from his vehicle and began taking photographs of the house

and secret room. (T. at 46-50, 55).        Det. Thomas also collected marijuana plants,

marijuana, processed marijuana and various marijuana paraphernalia. (T. at. 50).

      {¶7}   On July 27, 2017, as a result of the above investigation, Appellee Albert N.

Smith was indicted for Illegal Cultivation of Marijuana, in violation of R.C.

§2925.04(A)(C)(1)(5)(c), a felony of the fourth degree.

      {¶8}   On October 31, 2017, Appellee filed a Motion to Suppress with regard to

the warrantless search of his residence.

      {¶9}   On January 19, 2018, a hearing was held on Appellee's motion.

      {¶10} On January 26, 2018, Appellant State of Ohio filed a motion contra to

Appellee's motion to suppress.

      {¶11} By Judgment Entry filed February 6, 2018, the trial court issued a ruling

granting the Appellee's motion to suppress and excluding the evidence of the marijuana

grow located within Appellee's home. As the State would be unable to proceed without

this evidence, a notice of appeal was filed on February 22, 2018, in order to bring this

matter before this Court.

      {¶12} Appellant now appeals, raising the following assignment of error on appeal:
Licking County, Case No. 18 CA 00011                                                        5


                                   ASSIGNMENT OF ERROR

       {¶13} “I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION

TO SUPPRESS.”

                                                 I.

       {¶14} In its sole assignment of error, Appellant argues that the trial court erred in

denying its motion to suppress. We disagree.

       {¶15} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141

(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th Dist.1993).

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. In that case, an appellate court can reverse the trial

court for committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d

1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not against the

manifest weight of the evidence and it has properly identified the law to be applied, an

appellant may argue the trial court has incorrectly decided the ultimate or final issue raised

in the motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio

App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623, 620

N.E.2d 906 (4th Dist.1993); Guysinger. As the United States Supreme Court held in
Licking County, Case No. 18 CA 00011                                                         6

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”

       {¶16} In the instant case, Appellant argues the trial court incorrectly decided the

ultimate issue: whether the warrantless entry into the home by the CODE detective was

based upon exigent circumstances. Our standard of review is therefore de novo. State v.

Reed, 5th Dist. No. 16CA50, 2017-Ohio-2644, 90 N.E.3d 222, ¶ 27, citing State v.

Levengood, 2016-Ohio-1340, 61 N.E.3d 766, ¶ 17.

       {¶17} It is undisputed that law enforcement entered upon the property without a

warrant. The Fourth Amendment to the United States Constitution prohibits warrantless

searches and seizures, rendering them per se unreasonable unless an exception to the

warrant requirement applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967). The government may not intrude into areas where legitimate

expectations of privacy exist. In determining whether the Fourth Amendment protects

against a search, “the rule that has emerged * * * is that there is a twofold requirement,

first that a person have exhibited an actual (subjective) expectation of privacy and,

second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”

Katz, 389 U.S. at 361 (Harlan, J., concurring). See Rakas v. Illinois, 439 U.S. 128, 143–

144, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Williams, 73 Ohio St.3d 153, 166–167,

652 N.E.2d 721 (1995).

       {¶18} The Ohio Supreme Court has recognized seven exceptions to the search

warrant requirement: (a) [a] search incident to a lawful arrest; (b) consent signifying

waiver of constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit; (e) probable
Licking County, Case No. 18 CA 00011                                                    7


cause to search and the presence of exigent circumstances; (f) the plain-view doctrine;

or (g) an administrative search. State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49,

51, 482 N.E.2d 606 (1985), certiorari denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d

777 (1986); Stone v. Stow, 64 Ohio St.3d 156, 164, 593 N.E.2d 294, fn. 4 (1992).

       {¶19} The exigent circumstances exception “is founded on the premise that the

existence of an emergency situation, demanding urgent police action, may excuse the

failure to procure a search warrant.” State v. Cheadle, 2d Dist. Miami No. 00CA03, 2000

WL 966167, (July 14, 2000). “Whether exigent circumstances are present is determined

through an objective test that looks at the totality of the circumstances confronting the

police officers at the time of the entry.” State v. Enyart, 10th Dist. Franklin Nos. 08AP–

184, 08AP–318, 2010-Ohio-5623, 2010 WL 4681889, ¶ 21.

       {¶20} In the case sub judice, FF Brown testified that by the time the CODE

detective entered the premises and began collecting evidence, the fire was completely

extinguished, the potential evidence relating to the marijuana grow operation was not

damaged, and the electricity had been turned off to the residence. (T. at 33-34, 37). Det.

Thomas testified that he was assured the fire was out, and the home was safe for him to

enter. (T. at 53). Det. Thomas also stated that he was not told that any of the evidence

was in danger of being damaged by smoke, water or fire. (T. at 53). Det. Thomas

admitted that he did not make any attempt to contact the court or the prosecutor’s office

to obtain a search warrant prior to entering the premises. (T. at 51, 55).

       {¶21} Based on the foregoing, we do not find exigent circumstances existed that

required or allowed for a warrantless search of the premises. We therefore find no error

in the trial court’s suppression of the evidence collected in this matter.
Licking County, Case No. 18 CA 00011                                            8


       {¶22} Appellant’s sole assignment of error is overruled.

       {¶23} Accordingly, the judgment of the Licking County Common Pleas Court is

affirmed.



By: Wise, John, P. J.

Gwin, J., and

Wise, Earle, J., concur.



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