[Cite as State v. Hammer, 2012-Ohio-3497.]




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

STATE OF OHIO                                    :
                                                 :     Appellate Case No. 2012-CA-2
        Plaintiff-Appellant                      :
                                                 :     Trial Court Case No. 12-CR-09
v.                                               :
                                                 :     (Criminal Appeal from
DORA J. HAMMER                                   :     (Common Pleas Court)
                                                 :
        Defendant-Appellee                       :
                                                 :
                                              ...........

                                             OPINION

                              Rendered on the 3rd day of August, 2012.

                                              ...........

R. KELLY ORMSBY, III, Atty. Reg. #0020615, and DEBORAH S. QUIGLEY, Atty. Reg.
#0055455, Darke County Prosecutor’s Office, Darke County Courthouse, Third Floor, 504
South Broadway, Greenville, Ohio 45331
       Attorney for Plaintiff-Appellant

RANDALL E. BREADEN, Atty. Reg. #0011453, Law Office of Randall E. Breaden, LLC,
414 Walnut Street, Greenville, Ohio 45331
      Attorneys for Defendant-Appellee

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

FAIN, J.

                {¶ 1} Plaintiff-appellant the State of Ohio appeals from an order suppressing

evidence of an assault against a police officer, after that officer had entered the home where
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defendant-appellee Dora J. Hammer then was, without consent, and without a warrant. The

trial court found that there were no exigent circumstances justifying the warrantless entry, and

suppressed the evidence of the assault, consisting of “the officer’s observations (sight and

hearing).”

                {¶ 2} We conclude that even if the police officer’s entry into the home was

unlawful, the exclusionary rule does not apply in this case. Where evidence is obtained as the

result of an unlawful search and seizure, the exclusionary rule requires the suppression of that

evidence. But the analysis is one of proximate cause or result, not a “but for” test. Here, the

police officer’s first-hand observation of himself being assaulted by Hammer was not a

proximate result of his allegedly unlawful entry into the home; it was the proximate result of

Hammer’s voluntary act of assaulting the officer, which broke the chain of proximate

causation stemming from the officer’s entry into the home.

                {¶ 3} The trial court erred when it suppressed the evidence. The order of

suppression is Reversed, and this cause is Remanded for further proceedings consistent with

this opinion.



                I. Police Officer Ater Responds to a 9-1-1 Report of a Person

             “Overdosed on Pills and Extremely Intoxicated,” Enters the Home

                 Without Consent and Without a Warrant, and Is Assaulted

                {¶ 4} Union City Police Officer Mark Ater was on duty between 11:00 and

11:30 p.m. in mid-January, 2012, when he was dispatched to Hammer’s home. The report

was that the Darke County Sheriff’s Department had “received a 9-1-1 call that there was a
                                                                                             3


female that had overdosed on pills and that was extremely intoxicated acting belligerent.”

                 {¶ 5} When Ater responded to the home within not more than five minutes,

the “heavy door” was open, and he could see through the storm door Hammer’s mother and

another male occupant, who identified himself at the suppression hearing as Hammer’s

husband. Ater spoke to Hammer’s mother, who told him, “she’s in here. She had taken an

unknown amount of drugs.” At this point, Ater entered the home. He had neither consent,

nor a warrant.

                 {¶ 6} After Ater entered the home, Hammer’s mother told him, “my

daughter’s out of hand.” Hammer was sitting in a chair right beside the door, but it was

turned in such a way that Ater could not initially see who was sitting there. Ater did not see

any fighting or belligerent conduct.

                 {¶ 7} Ater testified that when he did see Hammer sitting there, she was

“obviously overdosed on medication and intoxicated,” but was not comatose, and was not

having difficulty breathing. He thought she was in danger because “[s]he took an unknown

amount of prescription drugs and mixed it with alcohol.”

                 {¶ 8} Emergency medical technicians had also been summoned, but had not

yet arrived when Ater responded to the scene. Ater testified that he had a policy, or the Police

Department had a policy, that a law enforcement officer would first determine that the scene

was safe for the emergency medical technicians before they would then enter.

                 {¶ 9} Concerning what happened next, Ater testified as follows:

       I found the Defendant sitting on a – like a chair in the living room obviously

intoxicated. The odor that was emitting from her and the behavior that she had and the
                                                                                                     4


       language she was using, the way she was acting, that she was intoxicated [sic].

                I was speaking with her and asking her what was going on and she continued to yell

       obscenities and became belligerent with me. I asked her what was going on and she wouldn’t

       answer what she was doing. I asked her mom what had happened and she said that she had

       taken an unknown amount of prescription drugs over what was prescribed to her and she’d

       been drink [sic] alcohol.

                So I asked Miss Hammer if she needed to speak with a medic. She told me that she

       didn’t need anything from me and it continued on and on. While she was doing that –

                [Whereupon the interrogation moved to other subjects.]

       {¶ 10} The above-quoted passage is the only part of Ater’s testimony that is addressed to his

interaction with Hammer.



                                   II. The Course of Proceedings

       {¶ 11}    Hammer was charged by indictment with “knowingly caus[ing] or attempt[ing] to

cause physical harm to another and that person was a peace officer while in the performance of his

duties,” in violation of R.C. 2903.13(A), (C)(3), Assault, a felony of the fourth degree.

                {¶ 12} Hammer moved to suppress “all evidence obtained * * * from the warrantless

       entry, arrest, search and seizure of the Defendant in her residence.” The trial court found no

       exigent circumstances to justify the entry into Hammer’s residence, and suppressed the

       evidence: “Since no tangible items were seized, there are none to suppress. However, the

       officer’s observations (sight and hearing) were improperly obtained.                 As such, his

       observations are inadmissible herein.”
                                                                                             5


       {¶ 13} From the order suppressing evidence, the State appeals.

       {¶ 14} In its initial brief, the State’s sole assignment of error is as follows:

               THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT’S

       MOTION TO SUPPRESS AND FOUND THAT EMERGENCY AID EXCEPTION

       DID NOT EXIST FOR A POLICE OFFICER TO ENTER THE HOME AFTER A 911

       CALL WAS MADE REQUESTING ASSISTANCE FOR A POSSIBLE OVERDOSE

       AND EXTREMELY INTOXICATED, BELLIGERENT FEMALE.

       {¶ 15} The actual error assigned by the State is the trial court’s order suppressing

evidence. The balance of its stated assignment of error consists of an argument that the

suppression order was erroneous.

       {¶ 16} In their initial briefs, the State and Hammer argued whether the emergency aid

exception permitted the warrantless entry into Hammer’s home. During our review of the

merits of this appeal, we became aware of another, potentially dispositive issue that the parties

had not addressed. By entry filed herein on June 26, 2012, we identified that issue as follows:

“The issue is whether Officer Ater’s observation of himself being assaulted by Hammer (the

evidence suppressed) was a proximate result of his unlawful entry, i.e., ‘the fruit of the

poisonous tree.’ Or was that evidence a remote result of his unlawful entry, in view of

Hammer’s independent, subsequent act of assaulting him?” We directed the parties to file

simultaneous supplemental briefs on that issue, and they have done so.

       {¶ 17} In the State’s supplemental brief, it has set forth a Supplemental Assignment

of Error, as follows:

               THE COURT ERRED WHEN IT GRANTED APPELLANT’S MOTION TO
                                                                                           6


       SUPPRESS WHEN APPELLANT’S ACT OF ASSAULTING THE OFFICER WAS

       AN INDEPENDENT ACT AND THE OFFICER’S OBSERVATIONS OF THE

       ASSAULT WERE NOT DERIVATIVE EVIDENCE THAT WAS SUBJECT TO

       SUPPRESSION.

       {¶ 18} We did not expressly invite the State to file a supplemental assignment of

error, and the State has not requested leave to do so. Nevertheless, by virtue of our entry of

June 26, 2012, Hammer has had an opportunity to file, and has in fact filed, a supplemental

brief addressed to the State’s supplemental assignment of error, which raises, of course,

essentially the same issue raised in our June 26, 2012 entry. Therefore, Hammer is not

prejudiced by the State’s Supplemental Assignment of Error, which we accordingly accept.



     III. Officer Ater’s Observation of Himself Being Assaulted by Hammer Is Not

       Evidence Derived from his Allegedly Unlawful Entry Into Hammer’s Home

       {¶ 19} As the State notes in its brief, Ohio courts of appeals, including this one, have

held that evidence of a fresh crime committed during or after an unlawful search and seizure is

not properly regarded as deriving from the unlawful search and seizure; that evidence instead

derives from the defendant’s intervening voluntary criminal act. State v. Ali, 154 Ohio

App.3d 493, 2003-Ohio-5150, 797 N.E.2d 1019, ¶ 18 (7th Dist.); State v. Cammon, 8th Dist.

Cuyahoga No. 91574, 2009-Ohio-4706, ¶ 27-28; State v. Freeman, 2d Dist. Montgomery No.

18798, 2002-Ohio-918, ¶ 22.



       {¶ 20} “Application of the exclusionary rule is generally restricted to those areas
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where its remedial objectives are most efficaciously served. See U.S. v. Leon, [468 U.S. 897,

104 S.Ct. 3405, 82 L.E.2d 677 (1984)]. It does not serve those objectives, which are to

discourage illegal searches and seizures by police, when evidence of criminal misconduct that

occurs separate and apart from the illegal police conduct is suppressed.” State v. Freeman,

supra, at ¶ 18.

       {¶ 21} Indeed, when the criminal act occurring during an unlawful search and seizure

is an assault upon the police officer, there are strong considerations countervailing the

purposes behind the exclusionary rule:

                  To exclude the evidence of [the seized person’s] separate, independent and

       distinct criminal conduct would do little to further the purpose of the exclusionary rule

       in deterring unlawful police conduct, and would sanction the use of assaultive behavior

       in response to an illegal arrest or seizure. Such a result is patently unacceptable

       inasmuch as a citizen, in the absence of excessive force, is not privileged to use force

       in order to repel an arrest by a police officer, even an illegal one. Columbus v. Fraley

       (1975), 41 Ohio St.2d 173, 324 N.E.2d 735.          One caveat; if the police officer

       intentionally provokes the illegal conduct on the part of the citizen, then a different

       result may obtain. State v. Freeman, supra, at ¶ 20.

       {¶ 22} For cases in accord, see 6 Wayne R. LaFave, Search and Seizure, Section

11.4(j), at 375-378 (4th Ed. 2004).

       {¶ 23} In her supplemental brief, Hammer argues that we cannot determine, from this

record, whether she caused Ater physical harm, or attempted to cause him physical harm.

Therefore, she argues, the authorities indicating that the exclusionary rule does not apply to
                                                                                            8


evidence of an assault upon a police officer during the officer’s unlawful entry are not

applicable to her case.

          {¶ 24} The problem with Hammer’s argument is that she is charged with Assault

Upon a Peace Officer. Ater’s observations of Hammer’s acts giving rise to that charge may

or may not satisfy the trier of fact of Hammer’s guilt, beyond reasonable doubt, but they are

nevertheless evidence of the alleged Assault.        That is the only relevance that Ater’s

observations would have at Hammer’s Assault trial. Although it is true that we do not know

what Ater’s testimony at Hammer’s Assault trial would be, we do know that his testimony

would be evidence of the alleged Assault, in the sense that it would be offered as proof of that

charge.

          {¶ 25} The State’s Supplemental Assignment of Error is sustained.

          {¶ 26} In view of our disposition of the State’s Supplemental Assignment of Error,

we find it unnecessary to decide the State’s original assignment of error – that is, whether the

emergency aid exception to the requirement of a warrant applies in this case.



                                       IV. Conclusion

          {¶ 27} The State’s Supplemental Assignment of Error having been sustained, the

order suppressing evidence, from which this appeal is taken, is Reversed, and this cause is

Remanded for further proceedings consistent with this opinion.

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

FROELICH and WILLAMOWSKI, JJ., concur.

(Hon. John R. Willamowski, Third District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).
                        9




Copies mailed to:

R. Kelly Ormsby, III
Deborah S. Quigley
Randall E. Breaden
Hon. Jonathan P. Hein
