[Cite as State v. Lam, 2013-Ohio-505.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :        C.A. CASE NO.      25336

v.                                                 :        T.C. NO.     11CR4263

TIMOTHY LAM                                        :        (Criminal appeal from
                                                            Common Pleas Court)
        Defendant-Appellant                        :

                                                   :
                                           ..........

                                           OPINION

                         Rendered on the    15th   day of     February     , 2013.

                                           ..........

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

CANDI S. RAMBO, Atty. Reg. No. 0076627, 15 West Fourth Street, Suite 100, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                           ..........

FROELICH, J.

                 {¶ 1} Timothy Lam appeals from a judgment of the Montgomery County

Court of Common Pleas, which found him guilty of possession of heroin on his no contest
                                                                                             2

plea after overruling his motion to suppress evidence. He was sentenced to twelve months

of imprisonment.

               {¶ 2} For the following reasons, the judgment of the trial court will be

               affirmed.

       {¶ 3}     The events which led to Lam’s arrest began when Dayton police officers

approached his brother, Jeffrey Lam (“Jeffrey”), regarding a traffic violation. On the evening

of December 12, 2011, Officers Michael Saylors and Randy Beane observed Jeffrey driving

a gold Intrigue near the intersection of Hodapp and Lorain Avenues. The officers were

familiar with Jeffrey from “a lot of history,” and they knew that Jeffrey and his brother,

Timothy, had possessed firearms and drugs during past contacts with the police.

Additionally, Beane knew that Jeffrey had fled from police two weeks earlier in the same

car, because Beane had participated in the search for the vehicle. The officers knew from

prior interactions that Jeffrey’s driver’s license had been suspended several times, and Beane

knew from running Jeffrey’s license two weeks earlier that Jeffrey had been under

suspension at that time.

       {¶ 4}     Based on Jeffrey’s history of fleeing from the police, the officers’ desire to

avoid a chase, and the officers’ knowledge that they were in the vicinity of Jeffrey’s home,

which was located at 645 Creighton Avenue, the officers decided to follow Jeffrey rather

than immediately initiate a stop for driving without a license and any other pending charges

related to his flight from police two weeks earlier. (The officers did not know, at that time,

whether there were any outstanding warrants for Jeffrey.) While following him, they

observed a turn signal violation. When Jeffrey parked behind 645 Creighton, the officers
                                                                                                                            3

activated their emergency lights.

         {¶ 5}        As soon as the lights were activated, both doors of the Intrigue “flew open,”

and Jeffrey and another individual (James Farr) fled on foot.                         The officers pursued Jeffrey

and Farr. Saylors tackled and detained Farr. After a brief chase through the neighborhood,

Beane saw Timothy Lam (Jeffrey’s brother) on the porch of 645 Creighton and saw Jeffrey

run from between the neighboring houses into 645 Creighton. Both men went into the

house and closed the door behind them. The officers attempted, unsuccessfully, to kick in

the door. Although the officers could see individuals inside the house, no one responded to

their commands to open the door. The officers retrieved a battering ram from their cruiser

and, using it, entered the house. Additional backup had arrived by this time.

         {¶ 6}        Upon entering the house, Beane ordered Jeffrey and another man to the

floor at gunpoint.         Beane heard an upstairs toilet flushing, and another officer on the

perimeter of the house radioed that he heard a person or persons moving around on the

second floor of the house. Officers conducted a sweep of the house for their safety. They

encountered Timothy Lam coming down the steps from the second floor, and two other men

were found upstairs, including one who was hiding.

         {¶ 7}        During their sweep of the house, officers observed crack cocaine in a

bedroom, marijuana under a bed and on a stairwell, and heroin in the kitchen, all in plain

view. While detaining the men found in the house, the officers called for a drug unit and

obtained a search warrant for the house.1 One of the rooms had a note with Timothy Lam’s


             1
               Officer Beane testified that the Lams’ mother, Cheryl Fitswater, who “rents the house,” gave them permission to
   search the house, but the State did not rely on this alleged consent at the suppression hearing.
                                                                                              4

name on it taped to the door, and inside the room a pill bottle and checkbook listed Timothy

Lam’s name. In searching this bedroom pursuant to the warrant, Detective Jason Barnes

found crack cocaine in a nightstand drawer. Timothy Lam was placed under arrest for

possession and obstruction of justice (for not opening the door on the officers’ orders), and

he was searched. The search revealed a bag of heroin tied to the drawstring of the shorts

Lam was wearing under his jeans.

       {¶ 8}     Lam entered a not guilty plea and filed a motion to suppress, in which he

argued that the police lacked any legal basis to enter his home without a warrant and to

search his home and his person.

       {¶ 9}     After a hearing, the court agreed, in principle, with Lam’s argument that a

warrantless entry into a house “may not be made for [a] minor misdemeanor.” Further, the

court cautioned that “courts should carefully assess circumstances when obstructing official

business is sought to be used for warrantless entry into a premises.” The court observed

that, in some circumstances, such as an obstruction charge rooted in the failure to open a

door to officers attempting to serve a minor misdemeanor citation, it might find that police

entry into a home was unlawful. Under the facts of this case, however, the court concluded

that a “wholly separate criminal act” from the turn signal violation occurred when Jeffrey

“challenged the officer’s authority to lawfully cite a citizen found outside the sanctity of his

home” by fleeing, and that this separate act justified the pursuit into the home. The trial

court’s decision did not refer to the officers’ alleged belief that Jeffrey had been driving

without a valid license. The trial court overruled the motion to suppress.

       {¶ 10}    Lam subsequently entered a no contest plea to possession of heroin in an
                                                                                           5

amount greater than one gram but less than five grams, a felony of the fourth degree. He

was found guilty and sentenced to twelve months of imprisonment.

       {¶ 11}    Lam raises one assignment of error on appeal.

       The Trial Court Erred in Overruling Appellant’s Motion to Suppress.

       {¶ 12}    Lam contends that the evidence against him should have been suppressed

because no exigent circumstances justified the police officers’ entry into his home and

because the officers lacked probable cause to arrest him.

       {¶ 13}    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. Pressly,

2d Dist. Montgomery No. 24852, 2012-Ohio-4083, ¶ 18.               “Under applicable legal

standards, the State has the burden of showing the validity of a warrantless search, because

warrantless searches are ‘per se unreasonable under the Fourth Amendment – subject only to

a few specifically established and well delineated exceptions.’” 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). Exigent circumstances are a well-established exception

to the Fourth Amendment's warrant requirement. State v. Andrews, 177 Ohio App.3d 593,

2008-Ohio-3993, 895 N.E.2d 585,¶ 23 (11th Dist.); State v. Berry, 167 Ohio App.3d 206,

2006-Ohio-3035, 854 N.E.2d 558,¶ 12 (2d Dist.).

       {¶ 14}    “The United States Supreme Court has held that an exigent circumstance is

(1) an emergency situation which arises when a person in the home is in need of ‘immediate

aid’ or there is a life-threatening situation, or (2) a ‘hot pursuit.’ Mincey v. Arizona, 437
                                                                                            6

U.S. 385, 392-393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); State v. Bowe, 52 Ohio App.3d

112, 113, 557 N.E.2d 139 (9th Dist.1988).” State v. Bell, 2d Dist. Greene No. 2012 CA 15,

2012-Ohio-4853. See also State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49, 51, 482

N.E.2d 606 (1985) (holding that hot pursuit and probable cause to search accompanied by

the presence of exigent circumstances have each been recognized as exceptions to the search

warrant requirement).      In Lam’s case, the State did not assert that there had been a

life-threatening situation, a potential for the destruction of evidence, or any other

“emergency situation” constituting an exigent circumstance; it argued that the officers had

been justified in entering the house because they did so in hot pursuit of Jeffrey.

       {¶ 15}    Lam’s argument emphasizes that Jeffrey’s turn signal violation was a minor

misdemeanor, “the most minor offense possible” and subject only to a fine. Relying on

Welsh v. Wisconsin, 466 U.S. 740, 754, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) and other

cases, he asserts that “the exigent circumstance premised upon flight from a

minor-misdemeanor        offense   is   insufficient   to   overcome    the   presumption   of

unreasonableness” that attaches to a warrantless entry. Welsh’s home was entered without a

warrant and he was arrested for DWI but, at the time, this was a “non-criminal civil

forfeiture offense.” The entry was based on the argument that Welsh’s blood-alcohol level

might have dissipated had the officers waited for a warrant. There was no “hot pursuit”

argument in that case.

       {¶ 16}    Lam also relies on Dorman v. United States, 435 F.2d 385 (C.A.D.C.1970)

and State v. Bowe, 52 Ohio App.3d 112, 557 N.E.2d 139 (9th Dist.1988), which set forth

factors to be considered in determining whether there was “an immediate major crisis
                                                                                                                            7

mandating a warrantless entry of a home.”                                Bowe at 114. But these cases addressed

emergency situations, not hot pursuit. In neither Dorman nor Bowe did officers chase

suspects into the homes they entered; in these cases, both of which involved robberies, the

locations that were searched were identified through a probation report that was left at the

scene by one of the suspects (Dorman) and through tracing the license plate of a vehicle

observed at the scene (Bowe).

        {¶ 17}         In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300

(1976), the Supreme Court held 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,” including a

home, notwithstanding the general prohibition against warrantless entry into a residence.

Id. at 43. The suspect in Santana was believed to have committed a felony, and the police

pursued her from a public place (her porch), at which they first confronted her, into her

home. The U.S. Supreme Court held that the police, who had probable cause to arrest the

defendant, could not be thwarted in that effort by the defendant’s retreat into her house.

        {¶ 18}         In Middletown v. Flinchum, 95 Ohio St.3d 43,                                        2002-Ohio-1625, 765

N.E.2d 330, the Supreme Court of Ohio, relying on Santana, extended the hot pursuit

exception to the search warrant requirement to misdemeanor offenses, stating, “we see no

reason to differentiate appellant’s offense and give him a free pass merely because he was

not charged with a more serious crime. The basic fact remains that appellant fled from

police who were in hot pursuit of him and who had identified themselves as police officers.”

 Id. at 45.2


           2
               The court did not rely on the flight itself as an additional basis or offense justifying the pursuit.
[Cite as State v. Lam, 2013-Ohio-505.]
         {¶ 19}       As in Jeffrey Lam’s case, the offense for which the police sought to arrest

the defendant in Flinchum was a minor misdemeanor (reckless operation). “The crux of

[Flinchum’s] claim [was] that police could not enter his home to arrest him without a

warrant where he had committed only a traffic infraction, which is a minor misdemeanor.”

Middletown v. Flinchum, 12th Dist. Butler No. CA99-11-193, 2000 WL 1843199, *2 (Dec.

18, 2000). Although Flinchum was ultimately charged with driving under the influence as

well as reckless driving, the appellate court’s opinion expressly stated that the arresting

officer “was not aware of facts that would have shown appellant was intoxicated until the

officer observed appellant inside his home during his arrest.”                               Id. at *4, fn.5.          Thus,

although the supreme court in Flinchum refers to fleeing into a house to avoid arrest, the

basis for the pursuit in Flinchum was a traffic infraction (as was the case with the pursuit of

Jeffrey Lam), which is typically not an arrestable offense.3 On the authority of Flinchum,

we must conclude that the police were lawfully inside the Lams’ house when they observed

the drugs which formed the basis for the search warrant.

         {¶ 20}       The supreme court’s opinion in Flinchum contains a strongly-worded

dissent in which Justice Pfeifer distinguishes Santana from Flinchum, based on the

seriousness of the offense and the “realistic expectation” in Santana that delay in executing a

search would result in the destruction of evidence (heroin and marked money), a concern

which was not present in Flinchum.                      It also emphasizes that “the circumstances of a

particular situation must be grave * * * to merit a lifting of [Fourth Amendment]


             3
               We note that the appellate court in Flinchum made a distinction among misdemeanor offenses, for purposes of
   warrantless entry, based on whether the offense was “minor” or “serious,” which was determined by whether it was “a jailable
   offense.” The supreme court, however, did not mention these distinctions in affirming the appellate court.
                                                                                             9

protections.” Flinchum, 95 Ohio St.3d at 47 (Pfeifer, J., dissenting), citing Welsh, 466 U.S.

740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (involving exigent circumstances).             Justice

Pfeifer observed that, when warrantless arrests in the home are at issue, hesitation in finding

a basis for acting without a warrant “is particularly appropriate when the underlying offense

for which there is probable cause to arrest is relatively minor. * * * When the government’s

interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is

difficult to rebut, and the government usually should be allowed to make such arrests only

with a warrant issued upon probable cause by a neutral and detached magistrate.” Id., citing

Welsh at 750. The dissent concluded that the government had not successfully rebutted the

presumption of unreasonableness in Flinchum, because only a minor traffic offense was at

issue, and that the arrest of “a mere tire spinner” did not justify the chipping away of a

well-established Fourth Amendment right.

       {¶ 21}    We share the concerns expressed in the Flinchum dissent. Although we

are bound by supreme court precedent, we have reservations about permitting police officers

to chase a suspect who is known to have committed only a minor traffic violation and to

forcibly enter into his house, in the absence of exigent circumstances.             This is a

circumstance where a potential traffic violation developed into a chase of the driver, which

led to the forcible entry of that person’s home, which turned into a protective sweep of the

home, which resulted in the plain view of contraband, which generated a search warrant,

which resulted in the arrest of a second person, which resulted in the discovery of drugs.

This may be the unusual situation where legal reasoning has plunged off the slippery slope

or where the exceptions have swallowed the rule.
                                                                                          10

       {¶ 22}    We see no reason why, in Jeffrey Lam’s case, the officers could not have

waited outside the house while they obtained a search warrant or checked for outstanding

warrants for Jeffrey. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from

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

routine felony arrest. As discussed above, Payton and other decisions have recognized an

exception for “exigent circumstances.” Id. at 1386. Similarly, R.C. 2935.12 only permits

entry by force to make a warrantless arrest if exigent circumstances exist. State v. Boyd, 2d

Dist. Montgomery No. 13425, 1993 WL 169104 (May 21, 1993).

       {¶ 23}    However, the principle from which any exceptions to the warrant

requirement emanate is reflected in the oft-quoted remarks of William Pitt in 1763: "The

poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail;

its roof may shake; the wind may blow through it, the storm may enter; the rain may enter;

but the King of England cannot enter – all his force dares not cross the threshold of the

ruined tenement!” Payton at 1388, fn. 54, citing Miller v. United States, 357 U.S. 301, 307,

78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Indeed, President John Adams traced the origins of

our independence from England to James Otis’s 1791 argument against British writs of

assistance, where he declared that a “man’s house is his castle.”          United States v.

Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1072, 108 L.Ed.2d 222, fn. 8 (1990)

(Brennan, J., dissenting). It may be that Jeffrey would have temporarily “defeated” his

citation for the traffic offense by “escaping to a private place,” but weighing the immediate

serving of a citation for a non-jailable minor misdemeanor against the Fourth Amendment’s
                                                                                                                         11

protection of the home, we would make what should be the obvious choice.

         {¶ 24}      However, the facts surrounding the chase of Jeffrey Lam are not legally

distinguishable from the facts in                  Flinchum.        Thus, we are obligated to follow our

understanding of the majority’s opinion in Flinchum, as the trial court did, and to conclude

that the police officers lawfully entered into the house. We hope that the Ohio Supreme

Court will reconsider or clarify its position.

         {¶ 25}      Once inside the house, the officers heard a toilet flushing upstairs, and an

officer on the perimeter of the house reported hearing movement upstairs. The officers on

the scene were aware that the Lams had been known to possess drugs and firearms in the

past and had tried to run over a police officer with a vehicle. In this situation, they had

legitimate concerns for their safety, and they were justified in conducting a protective sweep

of the house. See Maryland v. Buie, 494 U.S. 325, 333, 110 S.Ct. 1093, 108 L.Ed.2d 276

(1990) (finding a legitimate “interest of the officers in taking steps to assure themselves that

the house in which a suspect is being, or has just been, arrested, is not harboring other

persons who are dangerous and who could unexpectedly launch an attack.”).4

         {¶ 26}      During the protective sweep, officers observed heroin in the kitchen in a

trash can with no lid, crack cocaine in one of the bedrooms, marijuana under a bed (while

looking for anyone who might be hiding), and marijuana on the stairs. The plain view

exception to the warrant requirement applies in situations where (1) the original intrusion by

which the police viewed the item was lawful; (2) the discovery of the evidence was


             4
               Upon observing drugs in the house and hearing a toilet flush upstairs, exigent circumstances – the fear of the
   destruction of evidence – may also have justified the search.
                                                                                          12

inadvertent; and (3) the incriminating nature of the evidence was immediately apparent.

State v. Williams, 55 Ohio St.2d 82, 85, 377 N.E.2d 1013 (1978), citing Coolidge v. New

Hampshire, 403 U.S. 443, 446, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The plain view

doctrine applied under the facts of this case, and the officers properly relied on the drugs

observed in plain view to obtain a search warrant for the house.

       {¶ 27}    Lam also argues that the crack cocaine was found in his nightstand drawer

during the officers’ protective sweep and that they used this evidence “to justify his arrest

and subsequent search of his person,” which led to the discovery of the heroin tied to the

drawstring of his pants. He claims that, because a person could not fit in his drawer, the

officers should not have been looking there during the protective sweep, and his arrest was

improper.

       {¶ 28}    Lam’s argument is refuted by the evidence offered at the suppression

hearing. Detective Jason Barnes testified that the crack cocaine in Lam’s nightstand was

found when Barnes conducted his search pursuant to the search warrant. No evidence was

presented that the nightstand was searched during the protective sweep. Thus, Lam’s arrest

pursuant to the discovery of drugs in his room, and the search that followed, were not

improper.

       {¶ 29}    The trial court did not err in overruling Lam’s motion to suppress.

       {¶ 30}    The assignment of error is overruled.

       {¶ 31}    The judgment of the trial court will be affirmed.

                                         ..........

DONOVAN, J., concurs in judgment only.
                                                                                                13

FAIN, J., concurring in the judgment:

       {¶ 32}    I write separately because I do not share in the criticism of the result in

Middletown v. Flinchum, 93 Ohio St.3d 43, 2002-Ohio-1625, 765 N.E.2d 330.                      The

defendant in that case, like Jeffrey Lam in this case, was complicit in the escalation of the

events that began with the police having initiated a traffic stop. Both men could have

stopped and waited for the police to issue a citation. Instead, they fled. In my view, it was

not unreasonable, in either case, for the police to pursue the fleeing suspect, even when that

resulted in a warrantless entry into a residence.

       {¶ 33}    In all other respects, I concur in Judge Froelich’s opinion for this Court.

                                          ..........

Copies mailed to:

Michele D. Phipps
Candi S. Rambo
Hon. Gregory F. Singer
