[Cite as State v. Pettiford, 2018-Ohio-1015.]



                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                                FAYETTE COUNTY




STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :      CASE NO. CA2017-05-010

                                                      :           OPINION
    - vs -                                                         3/19/2018
                                                      :

KIMBALL LEE PETTIFORD,                                :

        Defendant-Appellant.                          :



      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                           Case No. CRI20160218



Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, 1st Floor,
Washington C.H., Ohio 43160, for plaintiff-appellee

Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant-
appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Kimball Pettiford, appeals his convictions in the Fayette

County Court of Common Pleas for possession of heroin, possession of drug abuse

instruments, and illegal possession of drug abuse paraphernalia.

        {¶ 2} The Washington Courthouse Police Department received a report of a possible

drug overdose and responded to Pettiford's home. Upon arrival, Pettiford was located lying
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on his back and unresponsive on his front porch. While waiting for the medical responders to

arrive, the responding officer observed through a closed screen door a dog leash looped

through itself to form a tourniquet, as well as hypodermic syringes sitting on the table within

six to seven feet inside Pettiford's home. Police announced their presence, but no one

answered inside the home.

       {¶ 3} Pettiford regained consciousness and claimed that he had been consuming

alcohol and that he had not been inside the house the entire day. Police placed Pettiford in a

police cruiser after he refused medical assistance. Police then seized the dog leash,

hypodermic syringes, a cup, a spoon, and a cotton ball. Officers also seized a white piece of

paper containing a powder substance and a small rock near the paper. Officers performed a

field test of the seized substances, and the test was positive for heroin.

       {¶ 4} Pettiford was arrested and later indicted for possession of heroin, drug

instruments, and drug abuse paraphernalia. Pettiford pled not guilty, and filed a motion to

suppress the items seized from his home. After a hearing on the matter, the trial court

overruled the motion to suppress. Pettiford's defense counsel later moved to withdraw from

representation, claiming a breakdown in communication after Pettiford blamed counsel for

the trial court's denial of the motion to suppress. The trial court granted defense counsel's

motion to withdraw, and appointed Pettiford new counsel.

       {¶ 5} Pettiford ultimately pled no contest to the charges, and the trial court found him

guilty on each. The state and Pettiford submitted an agreed sentence, which was accepted

by the trial court, of six months on count one, 90 days on count two, and 30 days on count

three, with all sentences to be served concurrently. Pettiford now appeals his convictions,

raising the following assignments of error.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED IN APPLYING THE PLAIN VIEW EXCEPTION TO
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THE WARRANT REQUIREMENT IN DENYING PETTIFORD'S MOTION TO SUPPRESS IN

VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION

AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

       {¶ 8} Pettiford argues in his first assignment of error that the trial court erred in

denying his motion to suppress.

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

fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a

motion to suppress, the trial court assumes the role of the trier of fact and is therefore in the

best position to resolve factual questions and evaluate the credibility of witnesses. Id.

Consequently, an appellate court must accept the trial court's findings of fact if they are

supported by competent, credible evidence. Id. Accepting these facts as true, the appellate

court must then independently determine, as a matter of law, and without deference to the

trial court's conclusions, whether the trial court applied the proper legal standard. Id.

       {¶ 10} The Fourth Amendment to the United States Constitution guarantees "[t]he

right of the people to be secure in their * * * houses * * * against unreasonable searches and

seizures." Warrantless searches are per se unreasonable unless one of the well-delineated

exceptions applies. State v. Kelley, 12th Dist. Butler No. CA2009-03-092, 2009-Ohio-5924.

       {¶ 11} If an individual does not act to preserve the privacy afforded by the Fourth

Amendment, "such as by leaving an object in the plain view of the public, then the state has

not 'searched' within the meaning of the Constitution, because the individual has exposed

those objects to others rather than keeping them to himself." State v. Buzzard, 112 Ohio

St.3d 451, 2007-Ohio-373, ¶ 15.

       {¶ 12} Although society generally respects a person's expectations of privacy in a

dwelling, what a person chooses voluntarily to expose to public view thereby loses its Fourth

Amendment protection. Id. at ¶ 15. Instead, the "police are free to observe whatever may be
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seen from a place where they are entitled to be." Id. "Simply put, the Fourth Amendment

does not itself 'draw the blinds the occupant could have drawn but did not.'" Id., quoting

State v. Smith, 37 N.J. 481, 496 (N.J.1962).

       {¶ 13} These Fourth Amendment principles are inherent in the plain view doctrine.

Buzzard, 2007-Ohio-373. The doctrine represents the requirement that an individual must

protect his or her privacy, and should an officer observe items in plain view when lawfully on

the property, no warrant is required. Id. Thus, it is well-established that pursuant to the plain

view doctrine, a police officer lawfully on a person's property may seize evidence in plain view

without a warrant. State v. Young, 12th Dist. Warren No. CA2014-05-074, 2015-Ohio-1347.

       {¶ 14} The plain view doctrine authorizes the warrantless seizure of evidence if the

initial intrusion leading to the discovery of the evidence was lawful and the incriminating or

illegal nature of the items was immediately apparent. State v. Simmons, 12th Dist. Butler No.

CA2012-11-229, 2013-Ohio-5088, ¶ 18. The "immediately apparent" requirement is satisfied

when police have probable cause to associate an object with criminal activity. Young, 2015-

Ohio-1347. The requisite probable cause may arise from the character of the property itself

or the circumstances in which it is discovered, and police officers may rely on their

specialized knowledge, training, and experience in establishing probable cause to identify

items as contraband. Id.

       {¶ 15} Another exception to the warrant requirement occurs when officers encounter

exigent circumstances. The Ohio Supreme Court applies exigent circumstances as an

exception to the warrant requirement for instances of both search and seizure. State v.

Moore, 90 Ohio St.3d 47, 2000-Ohio-10. "The exigencies of [a] situation make the needs of

law enforcement so compelling that the warrantless search is objectively reasonable under

the Fourth Amendment." State v. Fletcher, 12th Dist. Brown No. CA2016-08-016, 2017-

Ohio-1006, ¶ 33. This exception justifies a warrantless entry into a residence in certain
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situations, including when entry is necessary to protect the safety and well-being of police

officers or others. Id. The Fourth Amendment considers a warrantless entry reasonable as

long as the circumstances, when viewed objectively, justify the entry. Brigham City vs.

Stuart, 547 U.S. 398, 112 S.Ct. 1943 (2006).

       {¶ 16} "The exigent circumstances doctrine requires probable cause plus exigent

circumstances to effectuate a warrantless entry of [a] home." State v. Wilson, 12th Dist.

Clinton No. CA2006-03-008, 2007-Ohio-353, ¶ 22. "Probable cause exists if the facts and

circumstances known to the officer warrant a prudent man in believing that [an] offense has

been committed." State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 73. In determining

whether probable cause exists, a court must look at the "totality of the circumstances." State

v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816, ¶ 16. Probable

cause is viewed under an objective standard. State v. Watson, 12th Dist. Warren No.

CA2014-08-110, 2015-Ohio-2321, ¶ 14.

       {¶ 17} During the hearing on Pettiford's motion to suppress, the state presented

evidence that officers seized the items from Pettiford's house with constitutional authority.

First, and regarding plain view, the record is clear that officers were legally on the premises

because they were responding to an emergency call that someone had overdosed at

Pettiford's residence. Upon arrival, officers located Pettiford on the front porch of his home

and were legally on the premises as first responders to offer emergency assistance.

       {¶ 18} The responding officer testified at the hearing that when he arrived at

Pettiford's residence, he observed the unresponsive Pettiford lying on the porch. The officer

then approached to check Pettiford's vital signs, entering the porch area necessarily. Once

there, the officer could see into the living room through the open front door and closed screen

door. The officer testified that the items of contraband were approximately six to seven feet

away from him when he initially made his observation. The officer clearly observed a dog
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leash fashioned into a tourniquet and well as hypodermic syringes. The officer seized the

items he observed in plain view, and only those items.

        {¶ 19} In addition to being on the premises legally, we also find that the incriminating

or illegal nature of the items was immediately apparent and that officers had probable cause

to associate the objects with criminal activity. The officer testified that the dog leash was

looped through itself to be used as a tourniquet and that he also observed syringes on the

table. Tourniquets and syringes are drug paraphernalia commonly used to assist in the

injection of heroin, and the nature of the items was immediately apparent to associate them

with drug use. Thus, the requirements for application of the plain view doctrine are clearly

present.1

        {¶ 20} Moreover, we find that there was probable cause to establish the existence of

exigent circumstances during the time that officers provided emergency assistance to

Pettiford and during the time officers entered the home. The responding officer testified that

he and other officers did not know if anyone else was in the home as they provided aid to

Pettiford. The officer further testified that part of his decision to enter the home while waiting

for the life squad to arrive was specific to not knowing if anyone else was in the home.

        {¶ 21} This evidence supports the warrantless entry into Pettiford's home and seizure

of the contraband in plain view. The officers were unaware if anyone else was in the home at

the time they arrived and began offering emergency assistance to Pettiford.                          It was

reasonable for officers to objectively question their safety or the safety of others given that

Pettiford had exited his house after a drug overdose, was unresponsive, and could not inform

officers if anyone else was inside the home.



1. The dissent's reasoning would require a warrant despite the observation of illegal contraband, and would
prohibit the seizure of that contraband, thereby destroying the very purpose and logic behind the plain view
exception to the warrant requirement. This exception is firmly rooted in constitutional jurisprudence. Ker v.
California, 374 U.S. 23, 83 S.Ct. 1623, (1963).
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       {¶ 22} It was also reasonable for officers to objectively question whether anyone else

in the home also overdosed and required medical assistance. The record clearly indicates

the presence of multiple syringes and the existence of additional drugs on the table in the

home. The police would have been remiss to not check the home for others potentially in

need of medical attention.      While police announced their presence and received no

response, a person suffering from an overdose would not be able to answer or to indicate the

need for attention. It was up to the police to ascertain whether anyone in the home needed

assistance based on the circumstances objectively present at the time. Moreover, it was

necessary for officers to investigate whether there were children inside who needed

assistance. Any of these reasons support the officers' entrance into the home to determine

the circumstances therein as they related to their safety or the safety of others.

       {¶ 23} We also recognize the possibility that someone inside the home, even if not a

threat to officers or otherwise in need of medical care, could have interfered with the officers'

ability to seize the contraband had officers stopped to secure a warrant. The testifying officer

clearly observed multiple syringes, thus indicating the possibility that someone else was in

the home and had reason to remove the suspected drugs and drug paraphernalia because

they were incriminating evidence. While Pettiford relies on the fact that the responding

officer announced his presence twice and received no answer from the house, it is entirely

reasonable for an officer to believe that another drug user in the house would not willingly

acknowledge his or her presence at an obvious crime scene.

       {¶ 24} The dissent would have the police walk away from an unsecured residence

with drugs and syringes inside or, in the alternative, have new officers called to the scene

and enter the residence for the undaunting task of guarding the immediately-apparent

contraband in order that the responding officers can leave to obtain a search warrant for

purposes of entering and seizing the contraband being guarded. Such a suggestion is
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unworkable and inconsistent with the very rationale which carved out the plain view and

exigent circumstance exceptions to the requirement of a warrant.2

        {¶ 25} The finding of probable cause for exigent circumstances is based on the

totality of the circumstances, and is an objective determination.3 The circumstances were

such that officers arrived after an emergency call, found Pettiford unresponsive, tried to

provide medical assistance, and did not know if anyone else was inside the home as a threat,

someone in need of medical assistance, or someone who could destroy evidence. As such,

there was probable cause to support the officers' entrance into Pettiford's home based upon

exigent circumstances.

        {¶ 26} After reviewing the record, we find that the warrantless search was

nonetheless reasonable based on the plain view doctrine and exigent circumstances. As

such, Pettiford's first assignment of error is overruled.

        {¶ 27} Assignment of Error No. 2:

        {¶ 28} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION

OF PETTIFORD'S RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16,

ARTICLE I OF THE OHIO CONSTITUTION.

        {¶ 29} Pettiford argues in his second assignment of error that he received ineffective

assistance of counsel. To prevail on an ineffective assistance of counsel claim, appellant

must show his trial counsel's performance was deficient, and that he was prejudiced as a




2. The need to protect persons and property inside a residence, as well as preventing the destruction of
evidence, can justify exigent circumstances as reasonable for entering a residence without a warrant. State v. A
Bay Luong, 12th Dist. Butler No. CA2011-06-101, 2012-Ohio-4519.

3. As discussed in the dissent, the state did not argue exigent circumstances at length in its brief. However, the
absence of such argument does not amount to the absence of exigent circumstances. The trial court addressed
exigent circumstances, the responding officer testified about exigent circumstances, and exigent circumstances
are objectively present based on what occurred on the night in question.
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result. State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49;

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's

performance will not be deemed deficient unless it fell below an objective standard of

reasonableness. Strickland at 688. To show prejudice, appellant must establish that, but for

his trial counsel's errors, there is a reasonable probability that the result of his trial would

have been different. Id. at 694.

       {¶ 30} The failure to satisfy either prong of the Strickland test is fatal to an ineffective

assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-

4625, ¶ 7.

       {¶ 31} After reviewing the record, we find that Pettiford received effective assistance

of counsel. The record is clear that defense counsel argued the motion to suppress and

presented cogent arguments as to why the motion should be granted. While the trial court

overruled the motion, its decision does not render defense counsel's assistance in the matter

deficient. There is no indication in the record that the results of the motion to suppress would

have been different had defense counsel taken a different approach or presented other

evidence. This is especially true where the items seized were clearly in plain view and

exigent circumstances existed to permit officers to perform the warrantless seizure of the

drugs and related paraphernalia.

       {¶ 32} Having found that Pettiford received effective assistance of counsel, we

overrule his second assignment of error.

       {¶ 33} Judgment affirmed.


       RINGLAND, P.J., concurs.

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       M. POWELL, J., dissents.


       M. POWELL, J., dissenting.

       {¶ 34} I dissent from the majority's affirmance of the trial court’s denial of Pettiford’s

motion to suppress.

       {¶ 35} The trial court denied Pettiford's motion to suppress the warrantless seizure of

the heroin, drug abuse instruments, and drug paraphernalia (the "contraband") based upon

the plain view doctrine and the exigent circumstances exception to the Fourth Amendment's

warrant requirement. However, the record does not establish that the plain view doctrine or

exigent circumstances authorized the warrantless entry into Pettiford's home to seize the

contraband. Thus, the motion to suppress should have been granted.

       {¶ 36} This case involves a warrantless entry into a person's home and a warrantless

seizure of contraband. "Where there is no search warrant, the burden falls on the state to

show that a search comes within one of the judicially recognized exceptions." State v. Akron

Airport Post No. 8975, 19 Ohio St.3d 49, 51 (1985). See also Xenia v. Wallace, 37 Ohio

St.3d 216, 218 (1988); State v. Taylor, 77 Ohio App.3d 223, 225 (12th Dist.1991). Thus,

Pettiford is not required to establish that the seizure of the contraband was illegal. Rather, it

is incumbent upon the state to show that either the plain view doctrine or the exigent

circumstances exception to the warrant requirement authorized the warrantless seizure of the

contraband under the Fourth Amendment.

       {¶ 37} The United States Supreme Court has described the plain view doctrine as

follows:

              It is, of course, an essential predicate to any valid warrantless
              seizure of incriminating evidence that the officer did not violate
              the Fourth Amendment in arriving at the place from which the
              evidence could be plainly viewed. There are, moreover, two
              additional conditions that must be satisfied to justify the
              warrantless seizure. First, not only must the item be in plain
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              view, its incriminating character must also be "immediately
              apparent." * * * Second, not only must the officer be lawfully
              located in a place from which the object can be plainly seen, but
              he or she must also have a lawful right of access to the object
              itself.

(Citations omitted.) Horton v. California, 496 U.S. 128, 136-137, 110 S. Ct. 2301 (1990).

See also State v. Spence, 12th Dist. Butler No. CA2002-05-107, 2003-Ohio-4237, ¶ 24; Ohio

Dept. of Liquor Control v. Fraternal Order of Eagles Aerie 2293, 112 Ohio App.3d 94, 98

(10th Dist.1996); and State v. Wangul, 8th Dist. Cuyahoga No. 79393, 2002 Ohio App. LEXIS

564, *10-11 (Feb. 14, 2002).

       {¶ 38} Because the requirements of the plain view doctrine that an officer be "lawfully

located in a place from which the object can be plainly seen" and that the officer "have a

lawful right of access to the object itself" oftentimes coincide, it is easy to confuse these two

elements as one and the same. However, as the facts of this case illustrate, there are

occasions where these elements do not coincide, thus requiring that they be independently

satisfied. Accordingly, a police officer must not only be constitutionally located in a place

from which the item to be seized is plainly visible, but he must also be able to access the item

consistent with the Fourth Amendment. It is upon the legal right of access element of the

plain view doctrine that the seizure of the contraband in this case fails to satisfy constitutional

muster.

       {¶ 39} The police had a lawful right to be on Pettiford's porch as an incident of their

response to the report of Pettiford's apparent overdose. It was from this lawful vantage point

that the police observed, in open view, the contraband in Pettiford's home that was eventually

seized. This observation did not violate the Fourth Amendment. In fact, this observation, in

conjunction with Pettiford's condition when the police arrived on the scene, established

probable cause to enter Pettiford's home and seize the contraband.

       Nonetheless,
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              the limits on the [plain view] doctrine are implicit in the statement
              of its rationale. The first of these is that plain view alone is never
              enough to justify the warrantless seizure of evidence. This is
              simply a corollary of the familiar principle * * * that no amount of
              probable cause can justify a warrantless search or seizure
              absent "exigent circumstances." Incontrovertible testimony of
              the senses that an incriminating object is on premises belonging
              to a criminal suspect may establish the fullest possible measure
              of probable cause. But even where the object is contraband, this
              Court has repeatedly stated and enforced the basic rule that the
              police may not enter and make a warrantless seizure.

(Emphasis sic.) Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022 (1971).

       {¶ 40} In commenting upon these implicit limitations of the plain view doctrine, the

Fourth Appellate District has observed that "while the observation of something that is in

'open view' does not amount to a search, this discovery does not justify a subsequent

warrantless seizure absent some specific exception to the warrant requirement." State v.

Bradford, 4th Dist. Adams No. 09CA880, 2010-Ohio-1784, ¶ 36. Hence, the officer's mere

observation of the contraband lying on Pettiford's coffee table, through the screen door on

Pettiford's porch, did not justify the warrantless entry into Pettiford's home to access and

seize that contraband.

       {¶ 41} The state relies upon the plain view doctrine and our opinion in State v. Young,

12th Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, to argue that the lawful presence of

the police on Pettiford's porch, within the curtilage of the home, was all that was necessary to

justify their warrantless entry into the home to seize the contraband. In Young, we held that a

police officer was lawfully within the curtilage of Young's home when the officer entered the

rear patio to conduct a "knock and talk." While on the patio, the officer observed a garbage

can sitting on the patio with an open trash bag containing evidence of the manufacture of

methamphetamine. We determined that the plain view doctrine applied to the seizure of the

evidence because a "knock and talk" provided a legitimate law enforcement purpose for the

officer to be within the curtilage of the home on the patio. Young provides an excellent
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contrast to this case, illustrating the "lawful right of access to the object" element of the plain

view doctrine. The evidence seized pursuant to the plain view doctrine in Young was outside

on the patio where the officer had a right to be, thus providing the officer with a lawful right of

access to the evidence. In this case, the evidence was inside the home. Although the

responding officer had a right to be on Pettiford's front porch, that right did not extend to the

interior of the home. "[T]he Fourth Amendment has drawn a firm line at the entrance to the

house. Absent exigent circumstances, that threshold may not reasonably be crossed without

a warrant." State v. Fletcher, 12th Dist. Brown No. CA2016-08-016, 2017-Ohio-1006, ¶ 33.

       {¶ 42} Exigent circumstances may also serve as an exception to the Fourth

Amendment’s warrant requirement where "'the exigencies of the situation' make the needs of

law enforcement so compelling that the warrantless search is objectively reasonable under

the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408 (1978). Thus,

the establishment of exigent circumstances by the state would provide a legitimate basis for

the warrantless entry into Pettiford's home. Once legitimately in the home, the police would

have a "lawful right of access" to the contraband, all of the necessary elements of the plain

view doctrine would be satisfied, and the warrantless seizure of the contraband would

comport with the Fourth Amendment.

       {¶ 43} The state did not argue exigent circumstances in the trial court or on appeal,

instead relying entirely upon the plain view doctrine as justification for the entry into

Pettiford's home and the seizure of the contraband. Nonetheless, the trial court found

exigent circumstances, apparently related to preservation of the evidence and Pettiford's

medical condition. Preservation of evidence and response to a medical emergency may

serve as exigent circumstances. However, the evidence on the record does not support the

existence of the exigent circumstances relied upon by the trial court in denying Pettiford's

motion to suppress.
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       {¶ 44} The test for "[w]hether 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 No. 08AP-318, 2010-

Ohio-5623, ¶ 21, citing United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990). "[A]

warrantless entry to prevent the destruction of evidence is justified if the government

demonstrates: '(1) a reasonable belief that third parties are inside the dwelling; and (2) a

reasonable belief that these third parties may soon become aware the police are on their

trail, so that the destruction of evidence would be in order.'" Enyart at ¶ 21, quoting United

States v. Lewis, 231 F.3d 238, 241 (6th Cir.2000). Other factors a court may consider in

determining whether exigent circumstances existed include the degree of urgency, the time it

would take to get a warrant, and the ready destructibility of the evidence. State v. Norman,

12th Dist. Warren No. CA2014-02-033, 2014-Ohio-5084, ¶ 51. Regarding the existence of

the need to preserve evidence as an exigent circumstance, we have observed that

              Because marijuana and other narcotics are "easily and quickly
              hidden or destroyed," the Ohio Supreme Court has recognized
              that there are times where a "warrantless search may be justified
              to preserve evidence." However, "[n]otwithstanding the ease in
              which narcotics can be destroyed, a warrantless entry into the
              home of a suspected drug trafficker, effected without an
              objectively reasonable basis for concluding that the destruction
              of the evidence is imminent, does not pass constitutional
              muster." The "mere possibility of the loss or destruction of
              evidence is an insufficient basis for the warrantless entry of a
              house to prevent the destruction of evidence." Rather, there
              must be a "real likelihood" that the evidence is in danger of being
              destroyed.

(Citations omitted.) Norman at ¶ 52.

       {¶ 45} In this case, the evidence establishes nothing beyond a "mere possibility" that

third persons were present in Pettiford's home who might dispose of the contraband before

the police could obtain a search warrant, thus, failing to justify the warrantless entry into

Pettiford’s home and the seizure of the contraband.
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        {¶ 46} Rather than securing Pettiford's home while a search warrant was obtained,

the responding officer and his supervisor entered Pettiford's residence and seized the

contraband, because, as the officer testified, "The evidence that we observed was in plain

view and at that point we were unsure if anyone else was inside the residence."4 The only

evidence concerning the presence of third parties in Pettiford's home was the testimony of

the responding officer. The officer testified at the suppression hearing that upon arrival at

Pettiford's home he called into the home to announce his presence. No one responded.

After the emergency services squad administered first aid to Pettiford, Pettiford refused

transport to the hospital, and the police placed him in custody in a police cruiser, the officer

and his supervisor again called into the residence to announce their presence. Once again,

there was no response. The officer testified that he heard no sounds from Pettiford's home

indicating anyone’s presence. In addition to the officer's testimony, the initial report was of a

single person, apparently overdosed, on the front porch of the residence, which was exactly

what the officer discovered upon arrival on the scene. Furthermore, prior to the officer's entry

into Pettiford's home, Pettiford was conscious and interacting with the police. Yet, the record

does not reflect that the police inquired of him if others were present in the home or that he

volunteered such information. Objectively, these facts, wholly lacking any indicia of a third-

party presence in Pettiford's home, fail to establish a "reasonable belief" that a third party

was present in the home who presented a danger of destroying the evidence.

        {¶ 47} In Norman, we rejected a claim of exigent circumstances based upon a

concern that other persons may have been present in a basement apartment with access to



4. I would not, as the majority suggests, "have the police walk away from an unsecured residence with drugs
and syringes inside." The proper course would have been to secure the residence and obtain a search warrant.
Though obtaining a warrant would have been inconvenient, the Fourth Amendment was intended as an
inconvenience to state actors intruding upon the basic personal liberties protected by the Amendment. The
responsibility of the judiciary is to insure compliance with the Fourth Amendment, not to relieve the police of the
inconvenience incident to compliance.
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guns and marijuana, finding that the concern was not based upon "positive, specific evidence

supporting a reasonable belief." Norman, 2014-Ohio-5084 at ¶ 56. In finding that the state

had failed to establish that a risk of the destruction of evidence justified a warrantless entry

into the basement apartment, we observed,

               We find that the totality of the circumstances in this case does
               not support a finding of exigent circumstances as there was no
               basis for Velde or Workman to believe, or even suspect, that
               there was anyone in the basement or that there was a real
               likelihood that the marijuana in the basement was in danger of
               being destroyed. At the motion to suppress hearing, both Velde
               and Workman testified that the whereabouts of appellant were
               unknown. Although both Velde and Workman testified it was
               "possible" appellant was in the basement, and therefore could
               have been destroying evidence, neither Velde nor Workman
               heard any noise coming from the basement or saw anyone
               entering or exiting the basement. Velde admitted that she "didn't
               really think that there was anyone in the basement." Workman
               testified her sole basis for believing someone was down in the
               basement stemmed from the absence of the basement's second
               tenant, appellant, rather than from any noises or observations
               she made while at the scene.

Id. at ¶ 53.

       {¶ 48} As this case and Norman demonstrate, it is common that the police are unable

to conclusively exclude the presence of others within an area sought to be searched. Just as

in this case, police will frequently be concerned in these situations that the lack of indicia that

others are present is because any other such persons are unwilling or unable to reveal their

presence. However, this uncertainty is not a "reasonable belief" supported by "positive,

specific evidence," but rather a "concern" supported by a "possibility." Finding that the

exigent circumstances exception is established upon the latter is not only contrary to well-

established law, but would represent a gross expansion of the exception to include

circumstances that are not truly "exigent."

       {¶ 49} Neither was Pettiford's medical treatment established as an exigent

circumstance. Although the trial court found that the warrantless entry into the home and the
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seizure of the contraband was constitutional because of "medical information also as

[Pettiford] was actively being treated by the squad," the record does not support this finding.

First, the responding officer's sole expressed concern for immediate action was that he did

not know if others were present in the residence. Neither the officer, the responding

emergency medical services personnel, nor anyone else testified that there were concerns

related to Pettiford's medical treatment and that seizure of the contraband was necessary to

facilitate Pettiford's treatment. Furthermore, contrary to the trial court’s finding that Pettiford

was being "actively treated," by the time the officer and his supervisor entered Pettiford's

home, Pettiford was conscious, interacting with the officer, refusing further medical treatment,

and in police custody in a police cruiser. There is no evidence that Pettiford received any

further medical treatment after receiving first aid from the responding emergency medical

services personnel. Based upon the objective totality of the circumstances, the record does

not establish that Pettiford's medical treatment was an exigent circumstance justifying the

warrantless entry into Pettiford's home and seizure of the contraband.

       {¶ 50} The police were lawfully present on Pettiford's porch and lawfully observed the

contraband from that vantage point through the screen door. Their observations gave rise to

probable cause to search and seize that visible contraband. However, their observations did

not provide them with lawful access to the contraband, absent a search warrant or some

exception to the Fourth Amendment's warrant requirement. Rather than securing the

premises while a search warrant was obtained, the police entered Pettiford's home and

seized the contraband. The record does not establish that any exception to the warrant

requirement applied to justify the warrantless entry of Pettiford's home and the seizure of the

contraband. I therefore find that the trial court erred in denying Pettiford's motion to

suppress, and would sustain the first assignment of error, find the second assignment of

error moot, and reverse and remand the matter for further proceedings.

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{¶ 51} With regard and respect for my colleagues in the majority, I dissent.




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