[Cite as State v. Goode, 2013-Ohio-958.]




           IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

         Plaintiff-Appellee                         :        C.A. CASE NO.     25175

v.                                                 :         T.C. NO.   09CR2389/3

KYREE GOODE                                         :        (Criminal appeal from
                                                             Common Pleas Court)
         Defendant-Appellant                       :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    15th    day of      March        , 2013.

                                           ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 West
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

     J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
          Attorney for Defendant-Appellant

                                           ..........

FROELICH, J.

                 {¶ 1} After the trial court overruled in part his motion to suppress, Kyree

Goode pled no contest to possession of crack cocaine in an amount of 10 grams or more but
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less than 25 grams, a second-degree felony. The trial court sentenced him to a mandatory

term of four years in prison, suspended his driver’s license for six months, imposed a

mandatory fine of $10,000, and ordered him to pay court costs. Goode appeals from his

conviction, claiming that the trial court erred in denying his motion to suppress the drugs.

For the following reasons, the trial court’s judgment will be affirmed.

       {¶ 2}     When ruling on a motion to suppress, “the trial court assumes the role of

trier of facts and is in the best position to resolve questions of fact and evaluate the

credibility of witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d

Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th

Dist.1994). In reviewing a trial court’s decision on the motion to suppress, an appellate

court must accept the trial court’s findings of fact as true, if they are supported by competent,

credible evidence. State v. Burnside, 110 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. The appellate court must then determine, without deference to the conclusion of the

trial court, whether the facts satisfy the applicable legal standard. Id.

       {¶ 3}    The evidence from the suppression hearing revealed the following facts.

       {¶ 4}    At approximately 3:45 a.m. on July 23, 2009, Dayton Police Officer Mark

Orick was on patrol in uniform and in a marked cruiser at a large apartment complex when

he observed a woman, Danielle Jones, with whom he had come into contact a couple of

weeks earlier (when he arrested Jones’s husband, Shawn). Due to the late hour, Orick

stopped to observe her while she talked to another woman.

       {¶ 5}    After three or four minutes, Officer Orick exited his cruiser and approached

Jones, who was standing about seven feet from the rear door of 805 Danner. (The rear door
                                                                                           3

faced a cul-du-sac, where people regularly parked.) Jones immediately recognized the

officer. While Officer Orick and Jones were speaking, the rear door to 805 Danner opened,

and Orick witnessed Shawn Jones step backward out of the residence and engage in a

hand-to-hand drug transaction with a man in the apartment.             After the transaction

concluded, the officer secured Shawn Jones in handcuffs, retrieved suspected crack cocaine

from his hand, and radioed for back-up. Another officer arrived “within seconds” and took

custody of the Joneses. Other officers arrived to assist Orick with making contact with the

other person involved in the drug transaction, who was later identified as Lloyd Kelley.

       {¶ 6}    Officer Orick knocked on the rear door of 805 Danner and announced

himself. Kelley answered the door. Orick positioned himself between the open screen

door and the threshold and told Kelley that he had observed him engage in a drug

transaction. From the doorway, Orick could see several items of contraband inside the

apartment, including two digital scales, baggies that were commonly used to transport drugs,

and what appeared to be crack cocaine on the kitchen table. Orick testified that, because he

was witnessing “a felony in progress,” he decided to enter the home. Once inside, he

observed another digital scale with cocaine residue on a dining room table.

       {¶ 7}    Officer Orick saw two small children asleep on a fold-out couch, and he

asked Kelley if anyone else were in the apartment. Kelley replied that his wife, sons, and

two others were upstairs. Orick and other officers then conducted a “protective sweep.”

When Orick and another officer, Officer Meehan, went upstairs, two bedroom doors were

open and one was closed and locked from the inside.           Officer Meehan escorted the

individuals from the two open rooms downstairs.
                                                                                            4

       {¶ 8}    After Officer Meehan returned, Officer Orick knocked on the locked door.

It was opened by a woman. Orick saw a man, later identified as Goode, asleep in the room.

 While attempting to wake Goode, Orick saw a large baggie of what appeared to be crack

cocaine in front of a television on a television stand in the room. When Goode was awake,

Orick asked him if anyone else was in the room. Goode responded, “No, that’s why I keep

the door locked.” The officers took Goode and the woman downstairs.

       {¶ 9}    At their sergeant’s direction, Officers Orick and Meehan returned upstairs

with Goode and the others who had been upstairs, one at a time, so they could identify which

room they had been in. When Goode went up, he told the officers that he had come out of

one of the rooms that had been open. He was then taken back downstairs. Afterward,

again at their sergeant’s direction, Officers Orick and Meehan searched upstairs for more

drug paraphernalia and/or weapons. Orick secured the crack cocaine that he had observed

in Goode’s room. The officers also searched Goode’s mattress, which was on the floor, and

found approximately $1591 in cash underneath.

       {¶ 10} Goode was ultimately arrested and placed in a cruiser. When he was patted

down, the officers found an additional $500 in cash. Goode was informed of his Miranda

rights; he did not make any statements following his arrest.

       {¶ 11} Goode was charged with possession of crack cocaine, and he moved to

suppress the evidence recovered from the residence and any statements he had made. After

a hearing, the trial court suppressed the money located under the mattress, but otherwise

overruled the motion. The court concluded that officers lawfully entered the residence due

to the “felony in progress,” that the officers were justified in conducting a protective sweep
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of the residence, and that the protective sweep “revealed the baggy of crack cocaine in

Defendant’s room in plain sight.” The court further found that the statements Goode made

prior to being informed of his Miranda rights were “investigatory in nature and not subject

to Miranda.”1

       {¶ 12}       The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v.

Pressley, 2d Dist. Montgomery No. 24852, 2012-Ohio-4083, ¶ 18. “[P]hysical entry of the

home is the chief evil against which the wording of the Fourth Amendment was directed.”

(Citation omitted.) Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980). It is a basic principle of Fourth Amendment law that searches and seizures inside a

home without a warrant are presumptively unreasonable. Id. at 586.                                       However, exigent

circumstances are a well-established exception to the Fourth Amendment’s warrant

requirement. State v. Berry, 167 Ohio App.3d 206, 2006-Ohio-3035, 854 N.E.2d 558, ¶ 12

(2d Dist.). The State has the burden of showing the validity of a warrantless search. State

v. Hilton, 2d Dist. Champaign No. 08-CA-18, 2009-Ohio-5744, ¶ 21-22, citing Xenia v.

Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988).

       {¶ 13} The exigent or emergency circumstances exception to the warrant

requirement applies in a variety of situations, including when entry into a building is

necessary to protect or preserve life, to prevent physical harm to persons or property, or to

prevent the concealment or destruction of evidence, or when officers are in “hot pursuit” of a

          1
              On appeal, Goode does not argue that the trial court erred in denying his motion to suppress his statements.
                                                                                              6

fleeing suspect or someone inside poses a danger to the police officer’s safety. E.g., State v.

Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960, ¶ 48 (2d Dist.); Kentucky v.

King, – U.S. –, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). “In order to justify an

exception to the warrant requirement, the costs involved in obtaining a warrant must be

sufficiently significant to justify avoiding the delay inherent in procuring a warrant.”

Sharpe at ¶ 29; see King at 1858 (“[W]arrantless searches are allowed when the

circumstances make it reasonable, within the meaning of the Fourth Amendment, to

dispense with the warrant requirement.”).

       {¶ 14} In the present case, Officer Orick testified that there was a cul-du-sac behind

the apartments along Danner, and he approached Jones, who was standing near the rear door

to 805 Danner. After Jones’s husband came out of the rear door of that apartment and was

arrested, Officer Orick knocked on the back door of 805 Danner (which appeared to be a

common entry point for visitors to the residence) and announced himself. When Kelley

opened the rear door, Officer Orick could see, from the threshold outside the residence,

several items of contraband, including two digital scales, baggies, and what appeared to be

crack cocaine.

       {¶ 15} At the suppression hearing, Officer Orick initially testified that he entered

the apartment due to a “felony in progress.” On cross-examination, he stated: “Based on my

eyewitness account of seeing him [Kelley] do a hand-to-hand drug transaction, knowing that

I had the crack cocaine in my pocket that I secured off the person that he’s – just gave it to –

then, yes, then I made entrance into the apartment.” The trial court found that the “felony in

progress” was a sufficient justification for the officer’s entry. We disagree that there is a
                                                                                          7

“felony in progress” exception to the warrant requirement.

       {¶ 16}   In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980), the United States Supreme Court held that the Fourth Amendment prohibits the

police from making a warrantless and nonconsensual entry into a suspect’s house in order to

make a routine felony arrest. See also Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684,

109 L.Ed.2d 85 (1990). At the time of Orick’s entry into 805 Danner, the hand-to-hand

drug transaction between Shawn Jones and Lloyd Kelley was completed and Kelley was in

his apartment. The only apparent felony in progress was the possession of drugs and drug

paraphernalia inside the apartment.

       {¶ 17}   It is true that the existence of a felony in progress within a home may

involve circumstances that provide the exigency required to justify an officer’s warrantless

entry into the home. Where the particular felony creates an immediate need for an officer to

enter the home for the protection of property or persons who may be inside, we have found

the officer’s entry to be lawful. E.g., State v. Goodwin, 2d Dist. Montgomery No. 23800,

2010-Ohio-6480 (exigent circumstances warranted entry into home where officers were

dispatched due to a report of a burglary in progress). We emphasize, however, that the mere

existence of a “felony in progress” does not justify the warrantless entry; not every felony

demands urgent police entry into a home. For example, an officer’s observation that a

home contains marijuana may create probable cause that a felony is in progress, but it might

not necessarily create an urgent need to enter the home without a search or arrest warrant.

State v. Alihassan, 10th Dist. Franklin No. 11AP-578, 2012-Ohio-825, ¶ 23 (the observance

of marijuana and a grinder within a residence, alone, did not justify the police officer’s
                                                                                             8

warrantless entry). See also, e.g., Horton v. California, 496 U.S. 128, 137, fn.7, 110 S.Ct.

2301, 110 L.Ed.2d 112 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971); United States v. Morgan, 743 F.2d 1158, 1167 (6th Cir.1984)

(warrantless entry into a private home is not justified by plain view doctrine “merely because

an item of contraband has become visible to those outside”). A warrantless entry due to a

felony in progress is only permitted where the particular circumstances of the felony

demonstrate the existence of an exigent or emergency circumstance.

       {¶ 18} On appeal, the State argues that Officer Orick was justified in entering the

home to prevent the drugs from being lost or destroyed. “[A] warrantless entry to prevent

the destruction of evidence is justified if the government demonstrates: ‘(1) a reasonable

belief that third parties are inside the dwelling; and (2) a reasonable belief that these third

parties may soon become aware the police are on their trail, so that the destruction of

evidence would be in order.’” State v. Enyart, 10th Dist. Franklin Nos. 08AP-184 &

08AP-318, 2010-Ohio-5623, ¶ 21, quoting United States v. Lewis, 231 F.3d 238, 241 (6th

Cir.2000). We agree with the State that Officer Orick could have reasonably entered the

residence to prevent the destruction or loss of the crack cocaine on the table inside.

       {¶ 19} Just prior to approaching 805 Danner, Officer Orick witnessed Shawn Jones

hand money to Kelley and Kelley give him a baggie with what appeared to be crack cocaine.

 When Kelley opened the door in response to the officer’s knock, the officer advised him

that he had just observed Kelley do a hand-to-hand drug transaction. Kelley denied the

allegation, but Orick responded that it was Kelley he had seen. At that time, Kelley knew

that the police were aware of his drug trafficking activity. And, the officer could have
                                                                                           9

reasonably believed that, if he waited to get a search warrant, Kelley would attempt to

destroy the drugs in the residence, rather than allow them to be seized by the police.

       {¶ 20} Prior to King, we held that the police may not act on an exigency that they

created. E.g., State v. Johnson, 187 Ohio App.3d 322, 2010-Ohio-1790, 931 N.E.2d 1162,

¶ 14 (2d Dist.) (“police cannot by their own conduct create an exigency by announcing their

presence and then enter a private premises without a warrant under the rubric of exigent

circumstances in order to prevent destruction of evidence inside”). However, where “the

police did not create the exigency by engaging or threatening to engage in conduct that

violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is

reasonable and thus allowed.” King, – U.S. –, 131 S.Ct. 1849, 1858, 179 L.Ed.2d 865

(2011). See State v. Hancock, 2d Dist. Montgomery No. 24654, 2012-Ohio-1436, ¶ 13

(rejecting, on the authority of King, defendant’s argument that exigent circumstances did not

justify a warrantless entry into the home because police created the exigency).

       {¶ 21}    Here, Officer Orick acted lawfully when he knocked on the rear door of 805

Danner in order to talk with Kelley and investigate the drug transaction he had witnessed.

See King at 1862 (“When law enforcement officers who are not armed with a warrant knock

on a door, they do no more than any private citizen might do. And whether the person who

knocks on the door and requests the opportunity to speak is a police officer or a private

citizen, the occupant has no obligation to open the door or to speak.”). Officer Orick was

unaware that there were additional drugs inside the home until Kelley opened the door to the

apartment, revealing the crack cocaine inside. The fact that the officer’s action might

reasonably lead those inside to destroy the drugs does not render the officer’s entry to
                                                                                           10

prevent the drugs’ destruction unconstitutional.

       {¶ 22} Goode next argues that the officers did not properly conduct a protective

sweep of the residence. A “protective sweep” is “a quick and limited search of premises,

incident to an arrest and conducted to protect the safety of police officers and others. It is

narrowly confined to a cursory visual inspection of those places in which a person might be

hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990);

State v. Hunter, 2d Dist. Montgomery No. 24350, 2011-Ohio-6321, ¶ 33.             The United

States Supreme Court explained that “as incident to the arrest, the officers could, as a

precautionary matter and without probable cause or reasonable suspicion, look in closets and

other spaces immediately adjoining the place of arrest from which an attack could be

immediately launched.” Buie at 334. In order for the officers to conduct a “protective

sweep” beyond that area, the officers must have “articulable facts which, taken together with

the rational inferences from those facts, would warrant a reasonably prudent officer in

believing that the area to be swept harbors an individual posing a danger to those on the

arrest scene.” Id.

       {¶ 23}    “By adopting the ‘reasonable and articulable suspicion’ standard of Terry

and Long, the Supreme Court in Buie imposed a circumstantial predicate on the authority

conferred on law enforcement officers to conduct a protective sweep of a defendant’s

residence following his arrest.     There must be articulable facts from which police

reasonably suspect that the premises in which defendant is arrested harbors another person or

persons who may launch an attack on the officers who are there. Absent that basis to act, a

protective sweep is an unreasonable search for purposes of the Fourth Amendment, and any
                                                                                          11

incriminating evidence it produces must be suppressed.” State v. Sharpe, 174 Ohio App.3d

498, 2008-Ohio-267, 882 N.E.2d 960 ¶ 37 (2d Dist.), quoted by State v. Young, 2d Dist.

Montgomery No. 24537, 2011-Ohio-4875, ¶ 19.

         {¶ 24} Officer Orick entered 805 Danner at 3:45 a.m. shortly after witnessing a

drug transaction at the doorway to that apartment. Prior to entering, he saw additional crack

cocaine, baggies, and digital scales in the apartment. As soon as he walked through the

back door, he observed additional drugs and drug paraphernalia, and he saw two small

children sleeping on a couch. The officer was told by Kelley that his two sons, wife, and

“another girl and a guy” were upstairs. The officer then decided to conduct a protective

sweep.

         {¶ 25}      The officer explained at the suppression hearing:

         [O]nce we were told that we already knew there were people upstairs, we

         would never just ignore the upstairs because we don’t know who’s upstairs.

         We don’t know if they’re armed, we’ve obviously seen drugs in the house.

         And typically, nine times out of ten, when there’s drugs, there’s weapons.

         So that’s for our safety to ensure that the house is completely empty so that

         we know the only people in the house are who we’re dealing with and police

         officers.

Given that the officer had just witnessed a drug transaction occur at the residence, that he

saw drugs in multiple rooms in the house, and that he was informed that other adults were

present upstairs, we conclude that Officer Orick acted in a reasonably prudent manner when

he and other officers conducted a protective sweep of the home to ensure that none of the
                                                                                             12

other individuals inside would pose a danger to them. See, e.g., State v. Smith, 5th Dist.

Stark No. 2011 CA 140, 2011-Ohio-6872.

       {¶ 26} Upon entering Goode’s room to wake him and have him come downstairs,

Officer Orick observed crack cocaine sitting on the television stand in front of the television.

 Under the plain view doctrine, a warrantless seizure of incriminating evidence, such as the

crack cocaine, is permissible where (1) the officers are lawfully positioned in a place from

which the object can be plainly viewed, (2) the incriminating character of the object is

immediately apparent, and (3) the officer has a lawful right of access to the object itself.

Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993);

Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

Officer Orick lawfully seized the crack cocaine on the television stand under the plain view

doctrine.

       {¶ 27} The assignment of error is overruled.

       {¶ 28} The trial court’s judgment will be affirmed.

                                         ..........

FAIN, P.J., and WELBAUM, J., concur.

Copies mailed to:

Michele D. Phipps
J. Allen Wilmes
Hon. Barbara P. Gorman
