[Cite as State v. Morrow, 2020-Ohio-3390.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28441
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-3983
                                                  :
 ANTOINE LAMAR MORROW                             :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                             Rendered on the 19th day of June, 2020.

                                             ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020 and CATHERINE H. BREAULT, Atty. Reg. No.
0098433, 130 West Second Street, Suite 2150, Dayton, Ohio 45402
     Attorneys for Defendant-Appellant

                                             .............

WELBAUM, J.
                                                                                       -2-


       {¶ 1} Defendant-Appellant, Antoine Lamar Morrow, appeals from his conviction in

the Montgomery County Court of Common Pleas after he pled no contest to five counts

of having weapons while under disability. In support of his appeal, Morrow challenges the

trial court’s denial of his motion to suppress evidence seized from his residence. For the

reasons outlined below, the judgment of the trial court will be affirmed.



                       I.     Facts and Course of Proceedings

       {¶ 2} In the evening hours of October 12, 2018, Dayton Police Officers Clinton

Evans and Steven Ettinger were en route to investigate a reported argument between

people in an alleyway near an apartment building at 603 Rockford Avenue. A woman

flagged down the officers and led them to the building.

       {¶ 3} Upon arrival, the woman informed the officers that her husband’s company

vehicle had broken down in an alley adjoining an apartment building on Rockford Avenue.

At some point, a man emerged from the front door of the apartment building and began

yelling at them to move the vehicle. When she told the man the vehicle was inoperable,

he threatened her and her husband with a knife and slashed the vehicle’s tires. The

woman identified the assailant as an African-American male wearing a white t-shirt and

blue jeans. The couple left to seek help from the police, and the assailant re-entered the

apartment building through the front door.

       {¶ 4} The officers went to the parking lot on the other side of the building to

investigate. There they found the company vehicle with four flattened tires. Officer

Ettinger noticed lights on in the upstairs apartment. He could make out the shadow of a

figure traversing the room behind the blind-drawn windows. The unit was later determined
                                                                                          -3-


to be apartment 3.

       {¶ 5} The officers attempted to gain entry though the building’s front entrance, but

found it to be secured. Eventually, a female resident heard the officers’ knocking and

came to the front door. The officers informed her they were investigating an incident that

occurred in the parking lot. The resident indicated she was the anonymous caller who

had heard the argument in the alley and summoned the police. She did not know anyone

who matched the description of the knife-wielding man, but offered that someone had

recently moved into apartment 3 upstairs. The officers asked if they could enter the

building to continue their investigation. The female resident unlocked the front door and

allowed them to enter.

       {¶ 6} The officers ascended the stairs toward apartment 3. Officer Ettinger

maintained a position at the first landing, while Officer Evans proceeded to the second

landing, where apartment 3’s front door was located. Evans could hear someone

speaking inside the apartment, but could not tell whether the man was addressing

someone on the phone or in the apartment.

       {¶ 7} Officer Evans knocked on the front door. A male voice responded, “Who the

f*ck is at my door?” The officer replied, “It’s the Dayton Police.” Ten to fifteen seconds of

silence elapsed, after which the man inside repeated, “Who the f*ck is it?” Officer Evans

replied, “It’s the Dayton Police.” The same exchange took place five or six times. The final

time, an increasingly-frustrated Officer Evans replied, “It is the f*cking police, open the

door.” At that moment, the door abruptly opened and an African-American man in a white

t-shirt stood pointing a black handgun at Officer Evans’s head. That man was Morrow.

       {¶ 8} Officer Evans took a backward step and drew his service weapon, firing three
                                                                                       -4-


times. He could no longer see Morrow standing in the open doorway, but could not tell

whether the man had been shot. Evans advanced toward the apartment and peered

inside. He saw Morrow lying on the floor with his back to the door.

       {¶ 9} Officer Evans ordered Morrow to show his hands. Morrow said he had been

shot and could not move his hands; he expressed his belief that he was going to die.

Officer Evans indicated his desire to help but emphasized that he needed to confirm

Morrow was no longer armed before entering. Morrow weakly raised each hand. Due to

the positioning of his body, however, Officer Evans could not tell whether he was

concealing a gun or whether the handgun he had been holding was within reach. Officer

Ettinger radioed for a medic.

       {¶ 10} Other officers arrived on scene. At Officer Evans’s direction, they breached

Morrow’s apartment through a separate entrance. The officers confirmed that they did not

see a gun near Morrow, at which point Evans entered though the front door. He testified

that his purpose in entering the apartment at that point was to render aid to Morrow, as

per standard policy. Evans observed a black handgun laying on the ground next to the

doorframe at the front entrance to the apartment.

       {¶ 11} Morrow sustained a gunshot wound to the torso, just below the sternum. He

was transported to a hospital for treatment. Thereafter, Dayton Police obtained a warrant

to search Morrow’s apartment. Items seized included a Hi-Point 9mm pistol, a shell casing

found near the doorway, a copper bullet jacket, a knife, cell phones, clothing, and

marijuana. (State’s Exhibit 6 at Inventory).

       {¶ 12} On October 22, 2018, a Montgomery County grand jury levied five charges

of having weapons while under disability against Morrow. He initially entered a not guilty
                                                                                           -5-


plea and moved to suppress the evidence seized in connection with the incident.

Following a hearing, the court afforded the parties time to brief the issue of whether Officer

Evans’s order to Morrow to open his door was unlawful, requiring suppression of the

evidence subsequently seized from the apartment.

       {¶ 13} The parties submitted their briefs. In a written decision issued on March 18,

2019, the trial court denied Morrow’s motion to suppress. Thereafter, Morrow pled no

contest to all five counts in the indictment. At sentencing, the court noted that Morrow

should be going to prison. Nonetheless, the court agreed with the recommendation in the

presentence investigation report that Morrow be sentenced to community control. The

court’s May 31, 2019 judgment entry reflects this disposition, sentencing Morrow to

community control sanctions for a period of time not to exceed five years. Morrow

appeals.



               II.    Suppression of Evidence Seized from Apartment

       {¶ 14} In a single assignment of error, Morrow contends that the trial court erred in

denying his motion to suppress. Our review of the facts and circumstances of the case

reveals otherwise.



                                    Standard of Review

       {¶ 15} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-
                                                                                        -6-


Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. * * *

Accepting these facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.” (Citations omitted.) Id.



                      The Initial Encounter with Morrow Was Lawful

       {¶ 16} We begin by reviewing a number of deeply-rooted principles of search and

seizure jurisprudence. An individual’s right to be free from unreasonable searches and

seizures is protected by the Fourth Amendment to the United States Constitution as well

as Article I, Section 14 of the Ohio Constitution. State v. Leak, 145 Ohio St.3d 165, 2016-

Ohio-154, 47 N.E.3d 821, ¶ 13. “It is a ‘basic principle of Fourth Amendment law’ that

searches and seizures inside a home without a warrant are presumptively unreasonable.”

Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), quoting

Coolidge v. New Hampshire, 403 U.S. 443, 476, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

       {¶ 17} “For a search or seizure to be reasonable under the Fourth Amendment, it

must be based upon probable cause and executed pursuant to a warrant.” (Citations

omitted.) State v. Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000). “If probable cause

exists, then a search warrant must be obtained unless an exception to the warrant

requirement applies. If the state fails to satisfy either step, the evidence seized in the

unreasonable search must be suppressed.” (Citations omitted.) Id.

       {¶ 18} Generally speaking, the reasonableness of a search or seizure is

dependent upon the facts and circumstances of each case. Leak at ¶ 13. This
                                                                                         -7-


reasonableness assessment “is measured in objective terms by examining the totality of

the circumstances.” Id., quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136

L.Ed.2d 347 (1996).

       {¶ 19} The aforementioned Fourth Amendment protections are not implicated in

every interaction between police and civilians. State v. Taylor, 106 Ohio App.3d 741, 747,

667 N.E.2d 60 (2d Dist.1995), citing California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547,

113 L.Ed.2d 690 (1991) and State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498

(2d Dist.1994). Rather, “[t]he United States Supreme Court has created three categories

of police-citizen contact to identify the situations where these guarantees are implicated.”

Id., citing Florida v. Royer, 460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

These include: (1) consensual encounters; (2) investigatory detentions; and (3) seizures

in the nature of an arrest. Retherford at 594-595; Taylor at 747-749.

       {¶ 20} Turning to the case at hand, we begin by acknowledging that Officers

Evans and Ettinger acted lawfully in entering the apartment building on Rockford Avenue.

It became necessary for the officers to make contact with the building residents to further

the investigation into the aggravated menacing and criminal damaging allegations. The

first-floor female resident unlocked the front door and permitted the officers to enter the

building’s common area to continue their investigation. Morrow does not argue that these

events violated his constitutional rights.

       {¶ 21} Morrow’s challenge concerns the officers’ actions at the entrance to his

second-floor apartment. According to Morrow, the officers failed to establish a viable

connection between him and the allegations so as to justify ordering him to open his

apartment door. He points to the scant descriptive details provided by the woman in the
                                                                                        -8-


parking lot regarding her assailant, and the fact that the first-floor resident did not

corroborate the woman’s vague identification. Instead, the resident offered that a new

person had moved in upstairs. Morrow maintains that these facts were insufficient to

justify the officers’ infringement upon his right to privacy inside his home.

       {¶ 22} We agree with the trial court that the initial interaction between Officer

Evans and Morrow at the front door to Morrow’s apartment started off as a “knock and

advise.” A number of courts, including this one, have recognized this type of consensual

encounter as a legitimate investigative technique at the home of a suspect or an individual

with information about an investigation. State v. Miller, 2d Dist. Montgomery No. 24609,

2012-Ohio-5206, ¶ 16. A police officer need not possess reasonable suspicion in order

to justify a “knock and advise.” United States v. Cormier, 220 F.3d 1103, 1109 (9th

Cir.2000).

       {¶ 23} Like any other consensual encounter, the Fourth Amendment’s protections

are not implicated by a typical “knock and advise.” Miller at ¶ 15. However, such an

encounter can become coercive where an officer asserts his authority, refuses to leave,

or otherwise makes the inhabitant feel he cannot refuse to open the door. Id. at ¶ 16,

citing United States v. Poe, 462 F.3d 997, 1000 (8th Cir.2006). That is what happened

here. When Officer Evans knocked and announced his presence, Morrow was under no

obligation to open his door and, in fact, did not. Once Officer Evans ordered Morrow to

open the door, however, the interaction shifted.

       {¶ 24} Where a law enforcement officer conveys the impression that compliance

with his request is mandatory, the encounter can no longer be deemed consensual. State

v. Westover, 2014-Ohio-1959, 10 N.E.3d 211, ¶ 15 (10th Dist.), quoting Florida v. Bostick,
                                                                                           -9-


501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Accord State v. Ward, 2017-

Ohio-1391, 89 N.E.3d 124, ¶ 26 (2d Dist.). At this point, “the crucial test is whether, taking

into account all of the circumstances surrounding the encounter, the police conduct would

‘have communicated to a reasonable person that he was not at liberty to ignore the police

presence and go about his business.’ ” Bostick at 437, quoting Michigan v. Chesternut,

486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

       {¶ 25} We agree with the trial court’s assessment that the encounter between

Officer Evans and Morrow lost its consensual air when the officer ordered Morrow to open

his door. The officer testified that his experiences both as a correction officer and a police

officer taught him that using stern language is sometimes necessary to accomplish a goal.

The officer’s continued presence at the door, combined with his harsh tone and strong

language, operated to assert his authority in a manner that would have made a

reasonable person feel they were obligated to obey. At that point, the encounter rose to

the level of an investigatory detention.

       {¶ 26} “Unlike consensual encounters, an investigatory detention constitutes a

seizure; therefore, Fourth Amendment protections are implicated in an investigatory

detention.” (Citations omitted.) State v. Shern, 2018-Ohio-5000, 126 N.E.3d 322, ¶ 13 (2d

Dist.). “An individual is subject to an investigatory detention when, in view of all the

circumstances surrounding the incident, by means of physical force or show of authority,

a reasonable person would have believed that he was not free to leave or [was] compelled

to respond to questions.” State v. Lewis, 2d Dist. Montgomery No. 22726, 2009-Ohio-

158, ¶ 22, citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64

L.Ed.2d 497 (1980).
                                                                                         -10-


       {¶ 27} During investigatory detentions like the one at issue, “police officers may

briefly stop and/or temporarily detain individuals in order to investigate possible criminal

activity if the officers have a reasonable, articulable suspicion that criminal activity may

be afoot[.]” State v. Swift, 2d Dist. Montgomery No. 27036, 2016-Ohio-8191, ¶ 10, citing

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). (Other citations omitted.)

Whether an officer possesses reasonable suspicion is determined by evaluating the

totality of the circumstances, which must be considered “through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting

State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). “This ‘typically

requires [a showing] that the officer making the stop was [personally] aware of sufficient

facts to justify it[.]’ ” State v. Pickett, 2017-Ohio-5830, 94 N.E.3d 1046, ¶ 9 (2d Dist.),

quoting City of Maumee v. Weisner, 87 Ohio St.3d 295, 297, 720 N.E.2d 507 (1999).

       {¶ 28} Although the encounter in this case took on a coercive tone, Officer Evans

was justified in ordering Morrow to open the door under the circumstances. The officers

were responding to a reported disturbance outside the building. At the scene, they spoke

to a woman who indicated she had been threatened by an African-American man clad in

a white t-shirt and blue jeans. She indicated the man came in and out of the apartment

building in question. The first-floor resident who had anonymously phoned 911 said she

did not know of a resident matching the description given by the woman, but offered that

a new tenant had moved in upstairs. In other words, none of the other residents known

to her matched that description, but the new tenant might. Based upon the information

provided by these two witnesses, the police reasonably suspected Morrow was either a
                                                                                        -11-


suspect or a witness in need of questioning. Evans’s order to open the door was a

reasonable request in furtherance of this investigation as contemplated by Terry v. Ohio.

       {¶ 29} Even if we had found that Officer Evans’s order to open the door was

unlawful, we note that Morrow’s action of pointing a firearm at the officer constituted a

separate and distinct criminal offense. This court has declined to sanction the suppression

of fruits of an illegal search where the defendant engaged in criminal conduct comprising

an offense wholly separate from the one prompting an investigation. State v. Hammer, 2d

Dist. Darke No. 2012-CA-2, 2012-Ohio-3497, ¶ 2 (defendant’s voluntary act of assaulting

police officer broke the chain of proximate causation stemming from the officer’s unlawful

entry into his home). Accord State v. Freeman, 2d Dist. Montgomery No. 18798, 2002-

Ohio-918 (where defendant engaged in criminal conduct comprising offenses wholly

separate from the offense police were investigating, evidence seized thereafter was not

subject to exclusion). See also State v. Kelly, 2d Dist. Clark No. 3007, 1993 WL 402769,

*5 (Sept. 24, 1993) (excluding evidence of volitional criminal conduct that is independent

of an illegal search or seizure would not advance the purpose of the exclusionary rule in

deterring unlawful police conduct, and in fact may encourage the use of assaultive

behavior in response to an illegal search or seizure). Consequently, even had Evans not

been justified in engaging Morrow in an investigatory detention, Morrow’s volitional act of

pointing a gun at the officer constituted a separate offense which obviated the need for

suppression of the fruits of the illegal detention.



                      The Entry into Morrow’s Apartment Was Lawful

       {¶ 30} Next, Morrow asserts that the officers’ warrantless entry into his apartment
                                                                                        -12-


was not justified by any exigent circumstances. In particular, he argues that the officers’

investigation into the misdemeanor offenses of aggravated menacing and criminal

damaging did not justify the warrantless entry into his home. Morrow concludes that the

drug and firearms evidence seized in conjunction with the officers’ unlawful entry into his

apartment should have been suppressed.

       {¶ 31} The Ohio Supreme Court has expressly recognized a limited number of

exceptions to the warrant requirement, one of which is the presence of exigent

circumstances. State v. Peck, 2d Dist. Montgomery No. 25999, 2014-Ohio-2820, ¶ 8,

citing State v. Price, 134 Ohio App.3d 464, 467, 731 N.E.2d 280 (9th Dist.1999)

(surveying Ohio Supreme Court case law). “It is well recognized that police may enter a

home without a warrant where they have probable cause to search and exigent

circumstances exist justifying the entry.” State v. Burns, 2d Dist. Montgomery No. 22674,

2010-Ohio-2831, ¶ 20, quoting State v. Carr, 2d Dist. Montgomery No. 19121, 2002-Ohio-

4201, ¶ 15. (Other citation omitted.)

       {¶ 32} 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.” (Citation omitted.) State v. Cheadle, 2d Dist. Miami

No. 00CA03, 2000 WL 966167, *2 (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, ¶ 21, citing United States

v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990).

       {¶ 33} Morrow’s contention that the exigent circumstances exception is
                                                                                            -13-


inapplicable to this case misses the mark. The officers who breached the apartment

through a side door were lawfully permitted to do so. Morrow’s act of pointing a gun at

Officer Evans and the events that followed gave rise to the exigency justifying entry into

the apartment. See State v. Barber, 2d Dist. Montgomery No. 19017, 2002-Ohio-3278

(while exigency resulted from investigative conduct of officers, it was defendant’s

voluntary conduct of backing into the apartment and reaching behind his back with his

hand that created a reasonable suspicion he was armed and posed a danger to the safety

of the officers that justified the officers’ entry); State v. Burchett, 2d Dist. Montgomery No.

20166, 2004-Ohio-3095, ¶ 22 (officers did not create exigent circumstances by knocking

on door without identifying themselves as police).

       {¶ 34} A civilian’s act of pointing a firearm at a police officer is not a minor offense.

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

(exigent circumstances exception did not justify warrantless entry into suspect’s home

where officers had probable cause to believe suspect had committed only a minor

offense). Nor are we prepared to say that the offenses of aggravated menacing and

criminal damaging constitute “minor offenses” precluding the application of the exigent

circumstances exception to warrantless home entries in every instance. See State v.

Striks, 2015-Ohio-1401, 31 N.E.3d 208, ¶ 20 (2d Dist.) (noting that, “[w]hile Welsh

expresses concern about extending the exigent-circumstances exception to ‘minor

offenses,’ it did not define the term and also declined to consider whether the Fourth

Amendment imposes an absolute ban on warrantless home entries for certain minor

offenses.”).

       {¶ 35} Of note, Officer Evans testified that he could not see whether Morrow was
                                                                                         -14-


still armed from his vantage point outside the front door of the apartment. The officers

had to enter the residence to secure Morrow’s weapon and safely provide him with

medical assistance. One of the well-established emergency circumstances concerns

“when entry into a building is necessary to protect or preserve life[.]” See State v. Byrd,

2d Dist. Montgomery No. 27340, 2017-Ohio-6903, ¶ 13. Morrow had been shot and,

indeed, expressed to Officer Evans his belief that he was dying. It was imperative that the

officers confirm Morrow was no longer armed before entering to render life-saving aid.

       {¶ 36} The final consideration supporting application of the exigent circumstances

exception concerns the existence of probable cause. Although not implicated by the

indictment in this the cas, Morrow’s act of pointing a firearm at a police officer supported

a charge of felonious assault. The officers thus had probable cause to enter the apartment

without a warrant after Morrow engaged in this criminal conduct.



              Seizure of Evidence Pursuant to Search Warrant Was Lawful

       {¶ 37} As indicated, Dayton Police obtained a warrant prior to searching Morrow’s

apartment. Morrow does not directly challenge the lawfulness of the search warrant.

Nonetheless, because the evidence he seeks to suppress was ultimately seized as a

result of the warrant, we shall briefly review its propriety.

       {¶ 38} At the suppression hearing, the State submitted a certified copy of the

warrant as an exhibit. The parties stipulated that the court was to conduct a four corners

review of the warrant, and that no further testimony was necessary to introduce or explain

the document. The warrant sought to secure firearms, ammunition, knives, marijuana and

drug paraphernalia, and clothing described by the victim of the aggravated menacing and
                                                                                         -15-


criminal damaging offenses.

       {¶ 39} The affidavit accompanying the warrant described the factual events

underlying this case. The affidavit further indicated that the officers observed a clear

plastic bag containing other clear baggies filled with suspected marijuana in plain view on

the kitchen counter during a protective sweep of the apartment. This observation, in

conjunction with the shooting and the circumstances surrounding it, afforded probable

cause sufficient to support the issuance of the search warrant. Accordingly, the trial court

properly refused to suppress the evidence seized pursuant to the warrant.

       {¶ 40} For the foregoing reasons, Morrow’s assignment of error is overruled.



                                    III.   Conclusion

       {¶ 41} Having overruled Morrow’s sole assignment of error, the judgment of the

trial court is hereby affirmed.

                                      .............



TUCKER, P.J. concurs:

       {¶ 42} I concur because, as stated in the majority opinion, by pointing a handgun

at Evans, Morrow engaged in criminal conduct separate and distinct from the incident

Evans had been investigating. The seizure of the weapons at issue did not result from

Evans’s demand that Morrow open the apartment door, but, instead, from Morrow’s

decision to point the handgun at Evans. See State v. Hammer, 2d Dist. Darke No. 2012-

CA-2, 2012-Ohio-3497, ¶ 19 (assuming an illegal entry, evidence seized as a result of

separate criminal conduct “derives from the defendant’s intervening voluntary criminal
                                                                                       -16-


act”).

         {¶ 43} I write separately to state that while I agree there was a reasonable

suspicion that Morrow had committed the criminal conduct being investigated, such

reasonable suspicion did not sanction Evans’s coercive demand that Morrow open the

apartment door.

         {¶ 44} When, as here, an officer commands that a residential door be opened in a

manner which conveys to an occupant that his “only choice [is] to acquiesce[,]” the

resulting encounter constitutes a Fourth Amendment seizure. State v. Miller, 2012-Ohio-

5206, 982 N.E.2d 739, ¶ 21 (2d Dist.). Such a seizure occurs when the occupant is

within the home and the officer is within the home’s curtilage (“the area ‘immediately

surrounding the home’ ”), which is part of the home itself for Fourth Amendment purposes.

Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), quoting Oliver

v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

         {¶ 45} Thus, the issue is whether a Fourth Amendment seizure based upon

reasonable suspicion can be accomplished within a home or its curtilage. Of course, the

concept of a constitutionally-authorized seizure premised upon reasonable suspicion

began with Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Terry addresses the

“serious questions concerning the role of the Fourth Amendment in the confrontation on

the street between the citizen and the policeman investigating suspicious circumstances.”

(Emphasis added.) Id. The majority opinion does not cite to and I have not found a

case which authorizes a reasonable suspicion seizure within a home or its curtilage. To

the contrary, “it is a basic principle of Fourth Amendment law that searches and seizures

inside a home are presumptively unreasonable.” Payton, 445 U.S. 573, 586, 100 S.Ct.
                                                                                       -17-


1371, 63 L.Ed.2d, citing Coolidge, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. This is

so because “when it comes to the Fourth Amendment, the home is first among equals.”

Jardines at ¶ 6.       There are, of course, a number of exceptions (i.e., exigent

circumstances) to the requirement that a warrant is necessary to accomplish a search or

seizure within a home, but there is not a reasonable suspicion exception to the

requirement that a warrant is required to undertake a search or seizure within a home.

       {¶ 46} Though, as stated, I agree with the majority opinion’s conclusion, based

upon the above discussion, I do not agree that the officers’ reasonable suspicion that

Morrow had committed the criminal conduct being investigated allowed the forced

opening of the apartment door.


DONOVAN, J., dissents:

       {¶ 47} I dissent. This case is not a typical “knock and advise” nor is it a typical

“exigent circumstances” case. “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.” Kentucky v.

King, 563 U.S. 452, 469, 131 S.Ct. 1849, 179 L.Ed.2d 453 (2018). Indeed the United

States Supreme Court has suggested that, when a police officer approaches the home

without a warrant, he has no greater license to remain on the property than a Girl Scout

or trick-or-treater. Jardines at 8.

       {¶ 48} I acknowledge that the United States Supreme Court has held that “where

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 at 462.

       {¶ 49} However, Officers Evans and Ettinger should not have lingered in the
                                                                                       -18-


apartment building (at Morrow’s door) even though they knew someone was inside Apt.

3. In my view, the unlawfulness of the officers’ conduct herein is beyond debate. Morrow

was under no obligation to open the door and/or speak to the officers. Furthermore, the

officers should have retreated and/or conducted further lawful investigation or

surveillance, as they clearly lacked probable cause for a search warrant initially. They

lacked a particularized and objective basis for suspecting Morrow. Their hunch was

insufficient.

       {¶ 50} The manner in which the officers conducted themselves could be described

as being calculated “to cause surprise, fright and confusion.” See Brown v. Illinois, 422

U.S. 590, 605, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Notably, an individual has the right

to keep and bear arms for the defense of self, home and family.

       {¶ 51} The officers also could not claim the benefit or exception of an exigency

when their unlawful conduct gave rise to the exigent circumstances in the first instance.

Although it is widely accepted that law enforcement officers may enter a home without a

warrant to render emergency assistance, I would conclude that their deliberate unlawful

Fourth Amendment violations cannot create the situation which leads to such a necessity.

These officers did not encounter a tumultuous situation at the apartment, they created it.

There was no need for “immediate action” when they entered the apartment building. No

evidence was adduced that any occupant of Apartment 3 was necessarily the suspect,

nor was any evidence adduced that Morrow was attempting to escape or destroy

evidence. We must look at the unreasonable and improper investigative tactics that

generated/led to this exigency. I cannot say that the shooting of Morrow was sufficiently

divorced from the constitutional violation.
                                                                                        -19-


      {¶ 52} I would find the officers’ conduct herein sufficiently deliberate and culpable,

thus I would reverse.




Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Jon Paul Rion
Catherine H. Breault
Hon. Dennis J. Adkins
