[Cite as State v. Bethel, 2011-Ohio-3020.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :     Hon. William B. Hoffman, P.J.
                        Plaintiff-Appellant   :     Hon. Julie A. Edwards, J.
                                              :     Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :     Case No. 10-AP-35
ROBERT BETHEL                                 :
                                              :
                                              :
                       Defendant-Appellee     :     OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Tuscarawas County Court
                                                  of Common Pleas Case No. 2010-CR-03-
                                                  0071


JUDGMENT:                                         REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY:                           June 13, 2011


APPEARANCES:

For Plaintiff-Appellant:                            For Defendant-Appellee:

RYAN STYER 0069730                                  MATTHEW PETIT 0073919
Tuscarawas County Prosecutor                        111 Second Street, N.W.
125 E. High Avenue                                  Suite 302
New Philadelphia, Ohio 44663                        Canton, Ohio 44702

MICHAEL J. ERNEST 0066627
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Bethel, 2011-Ohio-3020.]


Delaney, J.

        {¶1}     The State of Ohio appeals the trial court’s entry suppressing marijuana

found in the home of Defendant-Appellee Robert Bethel’s. We reverse.

        {¶2}     Appellee was indicted by the Tuscarawas County Grand Jury on one

count of Trafficking in Drugs, in violation of R.C. 2925.03(A)(2)(C)(3)(c) and one count

of Possession of Drugs in violation of R.C. 2925.11(A)(c)(3). These charges arose out

of a search of Bethel’s home in the afternoon of September 8, 2009. At approximately

2:00 p.m., Bethel called Community Mental Health (CMH) and was speaking to a

counselor. While Bethel was on the line, another individual from CMH called 911 and

reported to the dispatcher that they had a Robert Bethel on the line who was talking

about weapons and shooting someone.           The caller stated he believed Bethel had

weapons in the house but did not know much more. The dispatcher then radioed the

Uhrichsville Police Department and stated to the officer that a Robert Bethel had guns in

the house, was threatening to commit suicide, hurt himself and others, but did not know

if people were in the house. The dispatcher also called medics and informed them the

officers would clear the residence before medics responded.

        {¶3}     Officer Jeremy Shaver of the Uhrichsville Police Department responded to

the scene along with Officer Sean Smith in order to determine the well being of Bethel

as well as any others who may be in the residence. As they approached the residence,

Bethel exited the home, on the phone. At that time, Officer Smith secured Bethel and

frisked him for weapons. The officers asked Bethel if there was anyone else in the

residence and Bethel said no.
Tuscarawas County, Case No. 10-AP-35                                                3


      {¶4}   Officer Shaver, along with Sergeant Todd Beeman from the Village of

Dennison who was called to assist the Uhrichsville police, then entered the home and

conducted a protective sweep through the residence to determine whether there were

any other people in the residence. Officer Shaver also stated that Appellee informed

them that there was a dog in the residence. The dog was barking loudly when the

officers entered the home.

      {¶5}   When Officer Shaver walked into the home, the first thing he observed

was a coffee table and an end table on which the officer observed marijuana that

appeared to be packaged for sale along with other drug paraphernalia. Officer Shaver

stated that there were baggies with what appeared to be marijuana in them and plastic

medicine bottles with “roaches” in them.

      {¶6}   Officer Shaver continued his protective sweep of the home and did not

locate another person in the residence, but the officers did locate the dog which they

restrained. They then had Bethel walk back into the house to show them where he kept

the house keys so they could secure the residence while Bethel was transported to jail

so that personnel from the CMH could meet with him and assess him.

      {¶7}   Sergeant Beeman was dispatched on a call of a “homicidal/suicidal” male.

He went to Bethel’s home and met Officer Shaver there. He went through the house

and observed the same drugs and paraphernalia on the table. Beeman testified that he

did not touch anything inside the residence. He stated that he was also looking for

other people in the residence who may be in need of assistance or hurt.
Tuscarawas County, Case No. 10-AP-35                                                     4


       {¶8}   Officer Smith stated that according to the dispatcher’s information, no one

was aware if there were any other people inside the residence. He did not enter the

residence, but stayed outside with Bethel.

       {¶9}   Appellee filed a motion to suppress, arguing that there were not exigent

circumstances supporting a warrantless search of his residence. The trial court ruled in

Appellee’s favor, finding that the warrantless search of Appellee’s residence was not

based on sufficient exigent circumstances allowing the search, pursuant to United

States v. Barone (1964), 33 F.2d 543,545; Mincey v. Arizona (1978), 437 U.S. 385,

State v. Burgess (Nov. 4, 1999), 5th Dist. No. 99-CA-0035.

       {¶10} The State of Ohio appeals and raises one Assignment of Error:

       {¶11} “I.    THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S

MOTION TO SUPPRESS EVIDENCE.”

                                             I.

       {¶12} In its sole assignment of error, Appellant, State of Ohio, asserts that the

trial court erred when it suppressed evidence resulting from the defendant’s encounter

with a law enforcement officer outside of his home that resulted in the discovery of

illegal drugs inside his residence.

       {¶13} Appellate review of a trial court’s decision to grant a motion to suppress

involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328,

713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of

fact and, as such, is in the best position to resolve questions of fact and to evaluate

witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A

reviewing court is bound to accept the trial court’s findings of fact if they are supported
Tuscarawas County, Case No. 10-AP-35                                                         5

by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d 142, 675

N.E.2d 1268. Accepting these facts as true, the appellate court must independently

determine as a matter of law, without deference to the trial court’s conclusion, whether

the trial court’s decision meets the applicable legal standard. State v. Williams (1993),

86 Ohio App.3d 37, 619 N.E.2d 1141.

       {¶14} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See State v.

Fanning (1982), 1 Ohio St.3d 19, 1 Ohio B. 57, 437 N.E.2d 583; and State v. Klein

(1991), 73 Ohio App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that

the trial court failed to apply the appropriate test or correct law to the findings of fact. In

that case, an appellate court can reverse the trial court for committing an error of law.

See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.                  Finally, an

appellant may argue the trial court has incorrectly decided the ultimate or final issues

raised in a motion to suppress. When reviewing this type of claim, an appellate court

must independently determine, without deference to the trial court’s conclusion, whether

the facts meet the appropriate legal standard in any given case. State v. Curry (1994),

95 Ohio App.3d 623, 620 N.E.2d 906.

       {¶15} The Fourth Amendment of the Constitution of the United States

guarantees each citizen a right to be free from unreasonable governmental intrusions.

Specifically, it states:
Tuscarawas County, Case No. 10-AP-35                                                      6


       {¶16} “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.”

       {¶17} “The Fourth Amendment's prohibition against unreasonable searches and

seizures has always been interpreted to prevent a search that is not limited to the

particularly described ‘place to be searched, and the persons or things to be seized,’

U.S. Const., Amend. IV, even if the search is made pursuant to a warrant and based

upon probable cause.” Florida v. Royer (1983), 460 U.S. 491, 499, 103 S.Ct. 1319.

       {¶18} The predicate for permitting seizures on suspicion short of probable cause

“is that law enforcement interests warrant a limited intrusion on the personal security of

the suspect. The scope of the intrusion permitted will vary to some extent with the

particular facts and circumstances of each case. This much, however, is clear: an

investigative detention must be temporary and last no longer than is necessary to

effectuate the purpose of the stop. Similarly, the investigative methods employed should

be the least intrusive means reasonably available to verify or dispel the officer's

suspicion in a short period of time.” Id., at 500, citing, e.g., United States v. Brignoni-

Ponce, 422 U.S., at 881-882, 95 S.Ct., at 2580-2581; Adams v. Williams, 407 U.S., at

146, 92 S.Ct., at 1923.

       {¶19} It is the State's burden to demonstrate that the seizure it seeks to justify

was sufficiently limited in scope and duration to satisfy the conditions of an investigative

seizure.
Tuscarawas County, Case No. 10-AP-35                                                     7


       {¶20} The permissibility of certain law enforcement practices is judged by

balancing the intrusion on the individual’s Fourth Amendment interests against the

promotion of legitimate government interests. See Delaware v. Proust (1979), 440 U.S.

648, 653-654, 99 S.Ct. 1391, 59 L.Ed.2d 660. Thus the question becomes whether the

State’s interest in sweeping a residence upon responding to a dispatch for possible

suicide and possible weapons is sufficient to warrant this intrusion and whether the

search policy in question is “reasonably related in scope to the circumstances which

justified the interference in the first place.” Terry v. Ohio (1968), 392 U.S. 1, 20, 88

S.Ct. 1868, 20 L.Ed.2d 889.

       {¶21} We find that the instant search was justified when tested by both criteria

from Terry.   The government has a legitimate interest in conducting a search of a

residence when they are called to that residence as a result of the occupant calling a

mental health hotline and claiming that he is suicidal and has access to weapons, and

that such an interest is more than sufficient to justify this search.

       {¶22} An exception to the warrant requirement of the Fourth Amendment

involves exigent circumstances. Exigent circumstances is synonymous with an

emergency, whether it be actual or ongoing. Mincey v. Arizona (1978), 437 U.S. 385, 98

S.Ct. 2408, 57 L.Ed.2d 290. In State v. Hyde (1971), 26 Ohio App.2d 32, 34, 268

N.E.2d 820, the Ninth District Court of Appeals explained the following:

       {¶23} ‘The right of the police to enter and investigate in an emergency without

accompanying intent to either search or arrest is inherent in the very nature of their

duties as peace officers. * * *.’ United States v. Barone (C.C.A.2), 330 F.2d 543, at 545.
Tuscarawas County, Case No. 10-AP-35                                                     8


       {¶24} “Breaking into a home by force is not illegal if it is reasonable in the

circumstances.’ ‘The need to protect or preserve life or avoid serious injury is

justification for what would be otherwise illegal absent exigency or emergency.” State v.

Burgess (Nov. 4, 1999), 5th Dist No. 99-CA-0035, quoting Wayne v. United States

(D.C.Cir.), 318 F.2d 205, at 212. See also, State v. Oliver, 91 Ohio App.3d 607, 632

N.E.2d 1382.

       {¶25} In the treatise, “Ohio Arrest, Search and Seizure” (1999 Ed.), Professor

Lewis Katz discussed the scope of an emergency search at 185-286, Section 10.5, as

follows:

       {¶26} “Exigent   circumstances    create   justification   for limited   warrantless

searches. The duration of the intrusion and the scope of the search are governed by the

constitutional command of reasonableness, which will be evaluated in terms of the

emergency. Once the emergency conditions have been alleviated, further intrusion must

be sanctioned by a warrant. Any other interpretation of the emergency exception would

create another general exception that would swallow the Fourth Amendment principle

that warrantless intrusions are per se unreasonable. Furthermore, searches that extend

beyond the scope of the actual emergency lead to an inference that the emergency is

serving as a pretext to conduct a warrantless search.” (Footnotes omitted.)

       {¶27} The trial court did not make specific findings of fact. Consequently, we

can afford no deference to the trial court’s findings of fact because there were none.

But the trial court indicated that it had reviewed the motion, the testimony and the

arguments of counsel. We shall, therefore, directly examine the record to determine

whether there is sufficient evidence of exigent circumstances.
Tuscarawas County, Case No. 10-AP-35                                                   9


      {¶28} In this case, Officer Shaver testified that upon walking into the house

looking for any additional occupants, he observed on the table right as he walked in, the

drugs and paraphernalia. He continued to walk through the house for other people

given the dispatch that Appellee was suicidal or homicidal and had access to weapons

in the house.

      {¶29} Because the drugs and paraphernalia were observed during the walk

through of the emergency search for other occupants, we find the discovery of the drugs

in plain view was before the emergency condition was alleviated. The discovery of the

drugs was contemporaneous with the emergency search. See State v. Burgess, supra.

      {¶30} We have reviewed the transcript of the suppression hearing, including the

dispatch records, and we are satisfied the police officers acted reasonably based upon

the information in their possession. The officers had reasonable cause to believe that

Bethel was considering suicide and harming others, and the entrance into the home

was necessary to protect others possibly in the residence, was reasonably related to

those circumstances and necessary to verify Bethel’s reports to CMH. Although there

was no indication upon arrival that Bethel had actually harmed himself or others, the

officers acted within their discretion that entry into the home was necessary to secure

the safety of themselves, the paramedics, and other people possibly inside the home.

      {¶31} While we realize that suicide is not a crime, Bethel could have been

considered dangerous because police had been told he had weapons and wished to

harm others. Police have a right and duty to respond to emergency situations. Thacker

v. City of Columbus, 328 F.3d 244, 253 (6th Cir. 2003). Entering the home dispelled the

uncertainty as to whether anyone was inside the home that might be in danger or pose
Tuscarawas County, Case No. 10-AP-35                                                  10


a danger to police officers or medics. While this case presents a close question, we find

exigent circumstances exist here.

      {¶32} For the foregoing reasons, we reverse the decision of the Tuscarawas

County Court of Common Pleas and remand for proceedings consistent with this

Opinion.

By: Delaney, J.

Hoffman, P.J. and

Edwards, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON WILLIAM B. HOFFMAN



                                        HON. JULIE A. EDWARDS
[Cite as State v. Bethel, 2011-Ohio-3020.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                        Plaintiff-Appellant    :
                                               :
                                               :
-vs-                                           :    JUDGMENT ENTRY
                                               :
ROBERT BETHEL                                  :
                                               :
                       Defendant-Appellee      :    Case No. 10-AP-35
                                               :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas is reversed and remanded

for proceedings consistent with this Opinion. Costs assessed to Appellee.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN


                                                   _________________________________
                                                   HON. JULIE A. EDWARDS
