[Cite as State v. Hawkins, 2017-Ohio-715.]



                          STATE OF OHIO, COLUMBIANA COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO                                   )
                                                )
        PLAINTIFF-APPELLEE                      )
                                                )           CASE NO. 16 CO 0014
VS.                                             )
                                                )                  OPINION
WILLIAM J. HAWKINS                              )
                                                )
        DEFENDANT-APPELLANT                     )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from the Court of
                                                Common Pleas of Columbiana County,
                                                Ohio
                                                Case No. 15 CR 204

JUDGMENT:                                       Affirmed.

APPEARANCES:
For Plaintiff-Appellee                          Attorney Robert Herron
                                                Columbiana County Prosecutor
                                                Attorney John Gamble
                                                Chief Assistant Prosecutor
                                                105 S. Market Street
                                                Lisbon, Ohio 44432

For Defendant-Appellant                         Attorney Edward Czopur
                                                42 North Phelps Street
                                                Youngstown, Ohio 44503

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                Dated: February 27, 2017
[Cite as State v. Hawkins, 2017-Ohio-715.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, William J. Hawkins, appeals the trial court
judgment convicting him of possession of marijuana and sentencing him accordingly,
following a no contest plea. On appeal, Hawkins argues the trial court erred by
overruling his motion to suppress. As the trial court properly denied suppression the
judgment of the trial court is affirmed.
                                 Facts and Procedural History
        {¶2}     Hawkins was charged by secret indictment with one count each of
cultivation of marijuana, R.C. 2925.04(A); and possession of marijuana, R.C.
2925.11(A), both fifth-degree felonies, following the discovery of marijuana and
several growing marijuana plants in his St. Clair Township home.
        {¶3}     Hawkins filed a motion to suppress, challenging the warrantless entry of
his home by police. At the suppression hearing, Detective-Sergeant Brian McKenzie,
who was the first responding officer at the scene, testified that he was dispatched to
Hawkins's home at approximately 10:49 a.m. on January 9, 2016, because of a call
that came through via the non-emergency number for the St. Clair Township Police
Department. That call was from a neighbor who reported that Hawkins's front door
was left open. Det. McKenzie could not provide any other information relative to the
contents of the neighbor's call including the name of the neighbor.
        {¶4}     Det. McKenzie arrived on the scene to find the front door "wide open"
and no cars in the driveway. There is no indication as to how long the door had been
open, however, the detective found it unusual. He announced his presence at the
front door and received no response from inside the house. He unholstered his
weapon, because he thought he could be dealing with a "burglary in progress."
        {¶5}     Upon reaching the open front door, he noticed a young dog inside the
living room area, as well as a large amount of dog feces on the floor. It appeared the
dog had not been outside for "a couple days." The dog was not barking. Det.
McKenzie then announced himself again, entered the residence, and did a "courtesy
sweep" of the living room and bedroom to locate and identify any other persons in the
residence. The detective further noticed that the young dog was acting "really
                                                                              -2-


skittish." Specifically, the dog did not attempt to leave the residence out the open
door, and it acted as though it wanted to go back to the bedroom.
      {¶6}   Having been in similar situations in the past, Det. McKenzie said in light
of the odd behavior by the dog he "thought maybe the homeowner was down."
      {¶7}   Although he did not see anyone in danger on the first floor, Det.
McKenzie went upstairs "looking for the homeowner or somebody in there that
maybe shouldn't be in the residence."
      {¶8}   During the sweep of the residence, Det. McKenzie observed, in plain
view, in the living room and surrounding area and near the front door, drug abuse
instruments and marijuana cigars, and he noticed the strong odor of marijuana
coming from the same area. Det. McKenzie then performed a protective sweep of the
basement, again announcing his presence before proceeding. In the basement, he
observed two marijuana grow operations. Specifically, the rooms in the basement
housed pots of marijuana plants at different stages of growth, as well as an irrigation
system.
      {¶9}   Once Det. McKenzie had cleared the house and determined no one
was home, he then secured the house, radioed the drug task force and the
suspected marijuana (including additional marijuana found on the first floor) and grow
implements were confiscated. Det. McKenzie said that all of the evidence was in
plain view once he was inside the various rooms of the home. It is this evidence upon
which the State based the indictment and which was the subject of the suppression
motion.
      {¶10} On cross, Det. McKenzie admitted that he did not hear the phone call
from the neighbor that caused him to respond to Hawkins's home. Further, he did not
know its contents other than the fact that a neighbor called on a non-emergency
number regarding the open door. Det. McKenzie further admitted that he was not
advised that any person at the home was injured or otherwise in peril. Nor did he
notice any signs of forced entry and he did not check the perimeter of the home prior
to entering. He did not hear any person inside the home when he approached the
                                                                                -3-


front door. Finally, he conceded he did not write anything in his report about his
concerns that the house was being burglarized or the strange behavior of the dog.
       {¶11} The trial court denied the motion to suppress following the defendant's
submission of a post-hearing brief on the issue. In so doing, the trial court relied upon
the emergency aid exception to the warrant requirement.
       {¶12} Thereafter, Hawkins entered a no contest plea to the charges in the
indictment. After a sentencing hearing, the trial court merged the two charges and
sentenced Hawkins on the possession charge—the count that the State elected to
pursue—to four years of community control under intensive supervision, and a six-
month driver's license suspension. .
                Emergency-Aid Exception/Exigent Circumstances
       {¶13} In his sole assignment of error, Hawkins asserts:

       The trial court erred in denying the motion to suppress as Appellant's
       rights against unreasonable search and seizure were violated by the
       warrantless entry to his home when no exigent circumstance applied.

       {¶14} 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, 797 N.E.2d
71, ¶ 8. Because the trial court is in the best position to evaluate witness credibility,
an appellate court must uphold the trial court's findings of fact if they are supported
by competent, credible evidence. Id. However, once an appellate court has accepted
those facts as true, the court must independently determine as a matter of law
whether the trial court met the applicable legal standard. Id.
       {¶15} "The Fourth Amendment to the United States Constitution and Section
14, Article I of the Ohio Constitution, protect individuals from unreasonable searches
and seizures." State v. Fasline, 7th Dist. No. 12 MA 221, 2014-Ohio-1470, ¶ 13,
citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); "[P]hysical
entry of the home is the chief evil against which the wording of the Fourth
Amendment was directed." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371
                                                                                -4-


(1980).
      {¶16} "When police conduct a warrantless search, the state bears the burden
of establishing the validity of the search. Searches and seizures without a warrant are
'per se unreasonable' except in a few well-defined and carefully circumscribed
instances." (Emphasis sic) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850
N.E.2d 1168, ¶ 98, citing Coolidge v. New Hampshire 403 U.S. 443, 454-455, 91
S.Ct. 2022, 29 L.Ed.2d 564 (1971).
      {¶17} "One exigency obviating the requirement of a warrant is the need to
assist persons who are seriously injured or threatened with such injury. 'The need to
protect or preserve life or avoid serious injury is justification for what would be
otherwise illegal * * *.' " Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct.
1943, 164 L.Ed.2d 650 (2006), quoting Mincey v. Arizona, 437 U.S. 385, 392, 98
S.Ct. 2408, 57 L.Ed.2d 290 (1978).
      {¶18} Accordingly, as this court has previously explained:

             "[T]he emergency aid exception allows officers to enter a
      dwelling without a warrant and without probable cause when they
      reasonably believe, based on specific and articulable facts, that
      [someone] is in need of immediate aid." State v. Gooden, 9th Dist. No.
      23764, 2008–Ohio–178, ¶ 6. The case must be viewed through the
      eyes of a reasonable and prudent police officer acting in response to an
      emergency situation. Id., citing 2 LaFave, Search & Seizure, § 6.6(a), p.
      698. "The officer must be able to point to specific and articulable facts,
      which, taken with rational inferences from those facts, reasonably
      warrant intrusion into protected areas." State v. White, 175 Ohio App.3d
      302, 2008–Ohio–657, 886 N.E.2d 904 ¶ 17 (9th Dist.). "Officers do not
      need ironclad proof of 'a likely serious, life-threatening' injury to invoke
      the emergency aid exception." Michigan v. Fisher, 558 U.S. 45, 49, 130
      S.Ct. 546, 175 L.Ed.2d 410 (2009).
                                                                             -5-


State v. Stanley, 7th Dist. No. 13 MA 159, 2014-Ohio-5636, ¶ 7.
       {¶19} "During a warrantless emergency entry police may seize contraband
which is in plain view." State v. Hallam, 2d Dist. No. 2012 CA 19, 2012-Ohio-5793, ¶
20, quoting State v. Overholser, 2d Dist. Clark No. 96-CA-0073, 1997 WL 451473
(July 25, 1997), citing Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486
(1978); Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984).
       {¶20} Here, the detective entered and searched Hawkins' home without a
warrant, during which time he discovered marijuana and a marijuana grow operation.
The trial court ruled that the emergency aid exception applied to obviate the need for
a warrant and Hawkins challenges this determination on appeal.
       {¶21} In arguing that suppression was required, Hawkins relies on State v.
Hendrix, 9th Dist. No. 27217, 2014-Ohio-3577. In Hendrix, police were alerted by a
concerned neighbor that Hendrix's garage door had been left open for several days.
Police entered the open garage and then entered the home through an unlocked
man door that led from the garage to the house. Police began to search the house,
explaining they wanted to ensure the homeowner did not need assistance and
because there had been a rash of robberies in nearby towns. While searching the
home, a marijuana grow operation was discovered.
       {¶22}    The Ninth District upheld the trial court's decision to grant
suppression:

               We cannot conclude that the trial court erred in granting the
       motion to suppress. We appreciate that the officers had a concern that
       it was possible there was someone in need of assistance in the house
       or that there had been a burglary, but we cannot say that the
       circumstances, when viewed objectively, would lead one to reasonably
       believe that anyone in the house was in immediate need of aid.

Id. at ¶ 12.
       {¶23} The court noted that at the time of the call, police did not know which
                                                                              -6-


neighbor had called to report the open garage, and were unable to determine
precisely how long it had been open. Moreover, although a mail carrier had indicated
that the mail had not been picked up from the day before, he also stated that such
behavior was not necessarily unusual. Finally, the officers did not notice any signs of
forced entry or other emergency when walking around the house. And although there
had been daytime burglaries in the city, the officer did not believe any of them had
taken place in defendant's neighborhood. Id. at ¶ 12. The court concluded that "when
objectively viewed, the exigencies of the situation were not so compelling as to
render a warrantless entry and search reasonable under the circumstances." Id. at ¶
13.
      {¶24} The facts of Hendrix are distinguishable; an open garage door is
different from an open front door to a house in the middle of winter, which Det.
McKenzie found unusual. Further, when reaching the door, Det. McKenzie
immediately noticed a young dog inside and a large amount of dog feces on the floor.
He said the dog was acting "really skittish," and did not attempt to leave the
residence through the open door, and it acted as though it wanted to leave the living
room. Upon seeing the young dog behave like this, based upon his prior experience,
he feared the homeowner "was down." These facts, taken together, distinguish this
case from Hendrix and are enough to justify the detective's entry.
      {¶25}    The State cites the Second District's Hallam, supra, in support of its
contention that the trial court here properly denied suppression. In Hallam, the deputy
responded to the defendant's residence initially at the request of a third party who
could not reach his ex-wife and children by phone, but believed they were at the
residence and wanted police to check on them. Id. at ¶ 2; 14. Once he arrived at the
home, however, the deputy observed several conditions that caused him to be
concerned that there was an intruder inside the home or a victim requiring immediate
aid. Id. at ¶ 11. First he noticed there were cars in the driveway, but no lights on
inside, which he found odd. Id. at ¶ 3. He observed that the front door was slightly
ajar, there was a broken window on the side of the garage, and the inside of the
                                                                               -7-


residence appeared to be in disarray. Id. At that point, the deputy said he entered the
residence to search for individuals in need of "emergency attention inside the
residence." Id. at ¶ 5. Ultimately, as in the present case, he found the house
unoccupied, and instead evidence of a marijuana grow operation in plain sight. Id. at
¶ 5-6.
         {¶26} In overruling the defendant's motion to suppress in Hallam, the trial
court appeared to defer to the deputy's belief that there could have been an ongoing
emergency situation. See id. at ¶ 14. In other words, the trial court judged the deputy
to be credible. Specifically, the trial court "found that 'exigent circumstances existed
justifying the warrantless entry into defendant's home. Once in the home and during
a walk through in an attempt to determine if there was someone in need of
emergency assistance, the evidence regarding the cultivation of marijuana came into
plain sight.' " Id. at ¶ 15.
         {¶27} Applying the emergency aid exception, the Second District affirmed the
trial court's decision denying suppression. The court framed the issue as being
whether, under the "totality of the circumstances, [the deputy] had a reasonable belief
that a burglary was in progress or had just occurred, or that there might be someone
inside the home who was in danger or in need of prompt aid." Hallam at ¶ 22. The
court "agree[d] with the trial court that exigent circumstances existed justifying [the
deputy's] warrantless entry into the residence, based upon the sequential events
leading up to the entry." Id.
         {¶28} Here, we must also be mindful of the trial court's discretion to judge
credibility of witnesses in suppression matters. Burnside, supra at ¶ 8. In both Hallam
and this case, the trial court chose to believe the officer's testimony about his
instincts—each officer feared the owner or occupant of the house was in some sort of
danger in light of his observations upon arriving at the house.
         {¶29} Accordingly, the trial court properly denied suppression, and the
                                           -8-


judgment of the trial court is affirmed.

Donofrio, J., concurs.

Waite, J., concurs.
