[Cite as State v. Davis, 2017-Ohio-7572.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2016CA00143
JOSHUA B. DAVIS                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No.
                                                   2016CR0533C

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            September 11, 2017



APPEARANCES:


For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    BARRY T. WAKSER
PROSECUTING ATTORNEY                               Stark County Public Defender
BY RENEE M. WATSON                                 201 Cleveland Ave. S.W., Ste, 104
Assistant Prosecuting Attorney                     Canton, OH 44702
110 Central Plaza S., Ste. 510
Canton, OH 44702
Stark County, Case No. 2016CA00143                                                                           2

Gwin, P.J.

        {¶1}    Defendant-appellant Joshua Brewer Davis [“Davis”] appeals the June 21,

2016 Judgment Entry entered by the Stark County Court of Common Pleas denying his

motion to suppress. Plaintiff-appellee is the state of Ohio.

                                        Facts and Procedural History

        {¶2}    On March 16, 2016, Officer John Koehler of the Uniontown Police

Department responded to a disturbance call at 1349 Sugarbush Avenue.                              The call

reported two irate females knocking on doors in the early morning hours, claiming to have

been abducted, injected with drugs and possibly chased.

        {¶3}    Officer Koehler met the females outside the residence of the caller. The

females were identified as Ashley Hutchison and Kayla Hill. Officer Koehler observed the

women appeared to be under the influence of either drugs or alcohol. The females

claimed to have been abducted by a man, identified as “Josh,” who “shot them up” with

something. They maintained they were being chased by a man with a flashlight, and

feared they would be raped or killed. Neighbors also reported seeing a man with a

flashlight.

        {¶4}    Officer Koehler asked the females to direct him to the house. The women

pointed to the residence at 13425 Sugarbush Avenue Northwest. The women told the

officers they had gone to the residence in the evening to hang out and play pool with

Davis.1 After ingesting the methamphetamine, the women stated they felt paranoid and

suffered from a headache. Ashley Hutchison showered, and afterwards heard Kayla Hill

and Davis arguing over a purse Hill found. The purse contained a gun, and Hill told Davis


1
 It was sometime later that the women told the officers that they voluntarily allowed Davis to inject them
with methamphetamine. Supp. T. at 25-26.
Stark County, Case No. 2016CA00143                                                                        3


the purse did not belong to her. The women further reported observing a shotgun inside

the residence. Believing someone else was inside the house based upon the purse being

found there and the shotgun, the women left carrying a knife with them.

        {¶5}    Chief Howard Britt of the Uniontown Police Department arrived on the

scene. The officers together approached the front door of the residence and knocked

numerous times. No answer was received. Davis’s car was identified in the driveway.

The officers then walked to the rear of the residence to attempt to make contact at a rear,

sliding patio door. A light was on inside. The officers entered through a fenced in

backyard, although they testified the gate was open.

        {¶6}    At the basement patio door, Officer Koehler again knocked, and received

no answer. The patio sliding glass door was partially covered by a blanket. However,

the officers could see the components of a meth lab inside. Officer Koehler noticed the

door was unlocked and entered. Officer Koehler then observed Davis, unconscious on

the couch.2 Due to the nature of methamphetamine labs, the house was evacuated and

the Stark County Metro Drug Unit and fire department arrived at the scene.

        {¶7}    Davis was indicted on one count of illegal manufacture of drugs, in violation

of R.C. 2925.04(A)(C)(3); illegal assembly or possession of chemicals for the

manufacture of drugs, in violation of R.C. 2925.041(A); aggravated possession of drugs,

in violation of R.C. 2925.11(A)(C)(1)(b); and possession of drug abuse instruments, in

violation of R.C. 2925.12(A).

        {¶8}    On April 19, 2016, Davis filed a motion to suppress.                    The trial court

conducted a suppression hearing on May 26, 2016.


2
  We note, the trial court’s entry states Davis was found unconscious on the floor of the residence. We
find the error of no legal significance to the issues raised.
Stark County, Case No. 2016CA00143                                                          4


          {¶9}    Via Judgment Entry of June 21, 2016, the trial court overruled the motion to

suppress.

          {¶10} Davis entered a plea of no contest to the charges. Via Judgment Entry of

June 24, 2016, the trial court found Davis guilty on all counts and imposed sentence.3

                                               Assignment of Error

          {¶11} Davis presents one assignment of error for our consideration,

          {¶12} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION TO SUPPRESS EVIDENCE.”

                                                Law and Analysis

          {¶13} Davis’ sole assignment of error challenges the trial court’s overruling his

motion to suppress. Specifically, Davis challenges the warrantless entry and subsequent

seizure of evidence from the residence.

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

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 20030-

Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role

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

witness credibility. See State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988(1995);

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583(1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra. However, once an

appellate court has accepted those facts as true, it must independently determine as a

matter of law whether the trial court met the applicable legal standard. See Burnside,



3
    Davis does not challenge the sentence imposed by the trial court on appeal.
Stark County, Case No. 2016CA00143                                                             5

supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist. 1997);

See, also, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is,

the application of the law to the trial court's findings of fact is subject to a de novo standard

of review. Ornelas, supra. Moreover, due weight should be given “to inferences drawn

from those facts by resident judges and local law enforcement officers.” Ornelas, supra

at 698, 116 S.Ct. at 1663.

       {¶15} In the case at bar, it is beyond dispute that the officers could lawfully walk

upon walkways, driveways, or access routes leading to the residence and attempt to

speak with Davis, just as any other member of the public would or could do.                   “A

presumption of unreasonableness attaches to all warrantless home entries.” State v.

Young, 2015-Ohio-1347, 31 N.E.3d 178, ¶ 17, citing Welsh v. Wisconsin, 466 U.S. 740,

750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). However, “[w]hen 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 865

(2011). A “knock and talk” by law enforcement is a “permissible warrantless intrusion”

that does not require “any objective level of suspicion.” Young at ¶ 24, quoting Pritchard

v. Hamilton Twp. Bd. of Trustees, 424 Fed.Appx. 492, 499 (6th Cir. 2011). Accordingly,

no Fourth Amendment violation occurred in this case when the officers approached the

front door of Davis’ residence and knocked in an attempt to speak with him.

       {¶16} Where a legitimate law enforcement objective exists, a warrantless entry

into the curtilage is not unreasonable under the Fourth Amendment, if the intrusion upon

one’s privacy is limited. See United States v. Raines, 243 F.3d 419, 421 (8th Cir. 2001).
Stark County, Case No. 2016CA00143                                                        6

For example, in Raines, the officer came to the defendant’s residence to serve civil

process on a person reasonably believed to be present, which the court characterized as

a “legitimate objective.” Id. After getting no response at the front door but seeing several

cars in the driveway, the officer believed that the inhabitants might be in the back yard

enjoying the summer evening, so the officer passed through an ungated, ten-foot-wide

opening in a makeshift fence to enter the yard, which the court considered a limited

intrusion. Id. at 420-21. Upon entry, the officer saw marijuana plants in plain view. Id. at

421. The seizure of the contraband was upheld because the officer was pursuing a

legitimate law enforcement objective and made a limited intrusion upon the defendant’s

privacy interests. Id.

       {¶17} As recently as 2014, the United States Supreme Court held that there is no

clearly established Fourth Amendment violation if police officers conducting a knock and

talk attempt to make contact by approaching the back or sides of a dwelling. Carroll v.

Carman, __ U.S. __, 135 S.Ct. 348, 350–52, 190 L.Ed.2d 311 (2014). The Court held

that officers who went through a person’s yard and up to her back door in order to speak

with a person did not violate clearly established law and thus were entitled to qualified

immunity. Id. at 352.

       {¶18} In State v. Young, the appellant argued that a Detective’s presence on the

back patio without a warrant or a legitimate basis for a warrantless search was a violation

of the Fourth Amendment to the United States Constitution because the back patio was

part of the home’s curtilage. 12th Dist. Warren No. CA2014-05-74, 2015-Ohio-1347, ¶15.

In Young, Detective Wetzel received an alert that Ashley had purchased

pseudoephedrine at a Walgreens in Lebanon, Ohio. A week later, on September 25, the
Stark County, Case No. 2016CA00143                                                        7


detective received an alert that Ashley had unsuccessfully tried to purchase

pseudoephedrine at a Kroger in Lebanon, Ohio. Minutes later, the detective received an

alert that appellant had purchased pseudoephedrine at that Kroger.           Believing that

appellant and Ashley might try to manufacture methamphetamine that evening, Detective

Wetzel and a police officer went to appellant’s home to try to make contact with appellant

and Ashley. Id. at ¶3. In finding that the Detective could go to the backdoor after knocking

repeatedly on the front door to no avail, the Court reasoned,

              As stated earlier, the testimony of the duplex property owner and

       photographs of the back patio show that the back patio was completely

       enclosed by a six-foot sight-obscuring wooden fence on September 25,

       2013. The fence marked the back patio as a contiguous part of the home.

       Ingress into the patio, other than through the back door of the home, was

       only possible by entering through the four-foot tall gate.         While not

       conclusive, “fencing configurations are important factors in defining the

       curtilage.” Dunn, 480 U.S. at 301, 107 S.Ct. 1134, fn. 4.

                                               ***

              In the case at bar, we find that Detective Wetzel’s entry onto the back

       patio to effectuate the knock and talk did not violate appellant’s Fourth

       Amendment rights. Detective Wetzel testified he went to appellant’s home

       on September 25, 2013, to make contact with appellant and his wife, talk to

       them, and gather evidence. The detective testified, “it looked like [appellant

       and his wife] were home” as the front window was “wide opened,

       unsecured” and “the T.V. was blaring really loud.” After knocking on the
Stark County, Case No. 2016CA00143                                                       8


      front door proved unsuccessful, and “[feeling] like somebody was home with

      the T.V. being on and the house being left open,” the detective walked to

      the back of the house and onto the fenced back patio and knocked on the

      back door.

             We agree with the trial court that it was reasonable for Detective

      Wetzel to conclude, upon seeing the window open and the television on,

      that appellant or possibly another occupant was home, and after

      unsuccessful attempts to summon the occupants of the house, to go around

      to the back of the home for the purpose of determining whether someone

      was home. In light of the foregoing circumstances, the knock and talk

      exception justified the detective’s decision to walk to the back door of the

      house and onto the fenced back patio.

2015-Ohio-1347, ¶9; 20; ¶26-27(emphasis added). “[W]here knocking at the front door

is unsuccessful in spite of indications that someone is in or around the house, an officer

may take reasonable steps to speak with the person being sought out even where such

steps require an intrusion into the curtilage.” Hardesty v. Hamburg Twp., 461 F.3d 646,

653 (6th Cir. 2006).

      {¶19} In the case at bar, the officers were investigating a criminal complaint

involving narcotics, weapons and a possible abduction. The women told the officers that

they had fled the home because they were “in fear for their life that they was [sic.] going

to be raped and/or killed.” Supp. T. at 8. The officers were further informed that the

women “were concerned that there is somebody else in the house besides Josh.” Supp.

T. 11. The officers were directed to the home. They knocked numerous times on the
Stark County, Case No. 2016CA00143                                                          9


front door with no response. The officers had reason to believe someone was at home

based upon Davis’ car in the driveway and the insistence by both women that Josh was

still inside the home. (Supp. T. 12; 25). Further, neighbors corroborated that they had

observed a person with a flashlight outside near the house. (T. at 7; 9; 35). Due to the

hour, the officers may have reasonably believed that Davis had gone to bed. Officer

Kohler testified that from the front of the home, he “could tell that there was a light around

back that was on.” (Supp. T. at 13).

       {¶20} In her Judgment Entry overruling Davis’ motion the trial judge noted,

              Unlike those cases cited by defendant, this was not merely a “knock

       and talk” type of procedure without specific justification, but an ongoing and

       immediate investigation which prompted the need to make contact with the

       defendant, coupled with the development of a concern for his safety. Thus,

       the Court distinguishes the circumstances in the case at bar from those in

       which a backyard area was found to be included within the curtilage for

       purposes of Fourth Amendment protections.

Judgment Entry Overruling Defendant’s Motion to Suppress, filed June 21, 2016 at n. 2.

We agree with the trial court that it was reasonable and prudent to conclude that Davis or

another person was home and after unsuccessful attempts to summon the occupants of

the home to go around to the back of the home for the purpose of determining whether

someone was home.        We agree that the officers had a substantial, legitimate law

enforcement objective that permitted intrusion into the curtilage.

       {¶21} Additionally, the trial court found competent, credible evidence that the gate

was unlocked and open at the time the officers approached on the walkway,
Stark County, Case No. 2016CA00143                                                                           10


                 Although the defendant testified that he believed the gate would have

        been closed, the Court finds the testimony of Officer Koehler that the gate

        was open, coupled with the testimony of Chief Britt who did not recall even

        seeing a gate, to be credible and consistent with each other as well as

        consistent with the defendant’s acknowledgement that he was unsure if the

        girls may have left the gate open when they fled. As such, the Court finds

        this walkway access to the patio to be significant.

Supp. T. at n. 14.

        {¶22} In State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972(1992), the Ohio Supreme

Court noted that the evaluation of evidence and the credibility of the witnesses are issues

for the trier of fact in the hearing on the motion to suppress. Id. at 366, 582 N.E.2d at 981-

982. The court of appeals is bound to accept factual determinations of the trial court made

during the suppression hearing so long as they are supported by competent and credible

evidence.

        {¶23} An appellate court's role in reviewing a trial court's ruling on a motion to

suppress is not to re-evaluate the evidence or the credibility of the witnesses, but to

determine whether the trial court's application of the law to the facts, as the trial court found

them to be, is appropriate. Mills, 62 Ohio St.3d at 366, 582 N.E.2d 972; State v. Williams,

86 Ohio App.3d 37, 41, 619 N.E.2d 1141(4th Dist. 1993).




4We   note a scrivener’s error in the trial court’s opinion. Officer Koehler did not recall seeing a gate [Supp.
T. at 19-20], while Chief Britt testified the gate was unlocked and open. [Supp. T. at 38-39]. We find the
error of no legal significance to the issues raised.
Stark County, Case No. 2016CA00143                                                     11


       {¶24} We hold that the evidence in this case adequately supports the trial court's

finding that the gate was opened and unlocked and that the officers then proceed upon a

walkway to the back door.

       {¶25} In light of the forgoing circumstances, legitimate law-enforcement objectives

permitted a limited intrusion on Davis’ expectation of privacy.

       {¶26} Once the officers observed a methamphetamine lab through the door, R.C.

2933.33 permitted warrantless entry. See, State v. White, 175 Ohio App.3d 302, 2008-

Ohio-657, 886 N.E.2d 904, ¶20 (9th Dist. 2008).

       {¶27} The officers’ conduct in the case a bar did not constitute an impermissible

intrusion upon Davis’ privacy in violation of the Fourth Amendment.

       {¶28} Davis’ sole assignment of error is overruled.

       {¶29} The judgment of the Stark County Court of Common Pleas is affirmed.


By Gwin, P.J.,

Wise, John, J., concur;

Hoffman, J., dissents
Stark County, Case No. 2016CA00143                                                       12

Hoffman, J., dissenting


       I respectfully dissent from the majority opinion. While I concur the “knock and talk”

on the front door of Appellant’s residence was not a violation of the Fourth Amendment, I

find the warrantless intrusion into the curtilage of the home violates the Fourth

Amendment.

       {¶30} I find the cases cited by the majority distinguishable from the instant case.

In United States v. Raines, 243 F.3d 419, 421 (8th Cir. 2001), the curtilage was

surrounded by a “makeshift fence of debris” with a ten foot opening. Because it was a

pleasant summer evening and several cars were in the driveway, the officer thought it

likely the occupants were in the backyard. Id. The officers in the instant case gave no

indication they believed Appellant may be enjoying the evening in the backyard, nor were

there cars other than Appellant’s car in the driveway.

       {¶31} Carroll v. Carman, __ U.S. __, 135 S. Ct. 348, 190 L.Ed.2d 311(2014)

involved a question of an officer’s qualified immunity from a homeowner’s §1983 action.

The officer testified the sliding glass door, which opened on to a deck, looked like a

customary entry, and the jury necessarily found the officer restricted his movement to

places where visitors could be expected to go. Id. at 349, 351. In the case at bar, the

officers had no reasonable belief the sliding door in back of the house was used by visitors

in approaching the home. The area was fenced in, near a pool, and under an upper deck

with another sliding door, accessing the main living area of the home.

       {¶32} In State v. Young, 12th Dist. Warren No. CA2014-05-74, 2015-Ohio-1347,

a window was open and the television was blaring, and thus the court concluded the

knock and talk exception justified the officer’s decision to walk to the back door and onto
Stark County, Case No. 2016CA00143                                                        13

the fenced back patio. Similarly, in Hardesty v. Hamburg Twp., 461 F.3d 646 (6th Cir.

2006), officers saw lights go off inside the house as they approached. In this case, the

officers did not point to activity inside the house which led them to believe Appellant was

inside.

          {¶33} I find the evidence does not support a reasonable belief Appellant was

inside the house sufficient to extend the “knock and talk” to the back sliding door, inside

the fenced area. The neighbors reported to police they saw a flashlight coming from the

house, but not specifically from inside the house. Tr. 9. The girls indicated Appellant was

chasing them outside with a flashlight. `Tr. 35. Officers did not point to any signs from

inside the residence that would lead them to believe Appellant was inside the house.

          {¶34} Further, I do not find exigent circumstances for the entrance into the

curtilage of the house. During his investigation and prior to entering the residence, Officer

Koehler learned the women had voluntarily gone to the residence to hang out with

Appellant. They consented to his injecting them with methamphetamine. Officer Koehler

conceded the girls were not in any danger of imminent harm at the time the officers

entered the residence. Tr. 26. He further conceded he was not given any information

Appellant himself injected methamphetamine or overdosed from the injection of

methamphetamine. Id. The women claimed to fear they would be raped or killed by

Appellant, but were clearly no longer in danger upon the arrival of law enforcement.

          {¶35} While the women stated they found a purse containing a gun inside the

residence and a shotgun in one of the bedrooms, they did not observe another person in

the residence, and did not claim to be in harm or afraid of another person. Rather, they

claimed to be afraid of or in danger from Appellant alone. I would find the exigent
Stark County, Case No. 2016CA00143                                                     14


circumstances exception does not apply herein as the officers did not have reason to

believe Appellant was in imminent danger or posed an imminent danger to another

person.

      {¶36} Accordingly, I would conclude the evidence is not admissible under the plain

view exception as the officers were not lawfully on the premises at the time the evidence

was in view. I would sustain the assignment of error and reverse the judgment of the trial

court overruling Appellant’s motion to suppress.
