COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59536 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION ANDRE KING : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 21, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 246047 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Stephanie Tubbs-Jones Gordon S. Friedman Cuyahoga County Prosecutor 2700 Terminal Tower By: Carmen M. Marino Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center Patricia A. Snyder 1200 Ontario Street 2000 Standard Buildin Cleveland, Ohio 44113 1370 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Andre King was indicted for the aggravated murder and aggravated robbery of Kevin Fielding. The indictment also contained felony-murder and gun specifications. Defense counsel filed a motion to suppress evidence obtained from a warrantless search and seizure in King's apartment. Following a hearing, the trial court granted the motion. The state timely appeals this ruling. Upon a review of the record, we affirm. At approximately 7:00 p.m. on January 1, 1989, East Cleveland police detective Robert Kalvitz interviewed Tremel Smith at the police station about his involvement in an aggravated burglary and an aggravated robbery. Smith was under arrest for these crimes which were unrelated to the December 31, 1988 Fielding murder. Kalvitz testified that, during the interview, Smith volunteered information about the Fielding crime. Smith allegedly stated that he had "overheard a conversation between some males that were responsible for the shooting death of Mr. Fielding." Smith provided the officer with the names of these men, including Andre King. Smith also told the officer that King lived across the street from the East Cleveland police station. Detective Kalvitz discussed Smith's information with other detectives and, at approximately 9:00 p.m., Kalvitz, four other detectives and one patrolman walked over to King's apartment. - 2 - Kalvitz testified he knocked on King's door and the defendant immediately opened it. According to Kalvitz, he informed King that they were investigating the Fielding homicide and the defendant invited them into his apartment. Kalvitz told the court he observed an automatic weapon clip and two .38 caliber bullets on the coffee table, as well a .38 revolver lying on the floor next to the sofa. The officers "secured" King and the two other men in the apartment for "security reasons." Kalvitz claimed the defendant then gave the officers permission to search the residence. A second weapon was found in a back room. The officers then arrested King and the other men for the Fielding murder. Andre King gave the court a different version of the incident. He averred that, when he opened the door to his apartment, a police officer pointed a shotgun at him, ordered him to step back, place his hands on his head and face the wall. The defendant denied inviting the officers in and told the court he felt he had no choice in the matter. According to King, the officers searched his apartment and found a gun under some clothes behind the couch. King told the court there was nothing on the coffee table. The officers continued their search and discovered the other gun. In its sole assignment of error the state asserts the court improperly granted King's motion to suppress. - 3 - The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. Furthermore, it is well established that, absent probable cause and exigent circumstances, "searches and seizures inside a home without a warrant are presumptively unreasonable." Paten v. New York (1980), 445 U.S. 573, 586, citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 474-475. See, also, Middleburg Hts. v. Theiss (1985), 28 Ohio App. 3d 1, 3-4. Exigent circumstances include the "hot pursuit" of a fleeing felon, Warden v. Hayden (1967), 387 U.S. 294, and the imminent destruction of evidence. Schmerber v. California (1966), 384 U.S. 757. The state, initially, challenges the trial court's finding that the police officers lacked probable cause to arrest King for the Fielding murder. In State v. Farndon (1984), 22 Ohio App. 3d 31, this court held that probable cause to arrest requires the officer "*** have sufficient information, derived from a reasonable trustworthy source, to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused." Id. at 34. Probable cause to make an arrest based upon an informant's tip requires the court to examine the totality of the circumstances, including the veracity or reliability of the informant. Illinois v. Gates (1983), 462 U.S. 213. Detective Kalvitz testified that, based upon Smith's information, he and the five other officers went to King's apartment to arrest him. The detective had never before met with - 4 - Smith nor did he know Smith as an informant. Kalvitz told the court he had no other information linking the defendant to the murder and made no attempt to verify any of Smith's information before deciding to arrest King. Based upon this evidence, we find the trial court properly found that the officers lacked probable cause to arrest King. The state also failed to demonstrate the existence of exigent circumstances. The murder occurred two days before the arrest of the defendant and search of his apartment. There was no evidence the officers were in hot pursuit or that evidence would be destroyed if the officers took the time to obtain a warrant. We note Detective Kalvitz revealed familiarity with the warrant process but, nonetheless, did not attempt to obtain one. Finally, the state argues the evidence was in "plain view." In order for evidence to be seized under this exception to the Fourth Amendment warrant requirement the initial intrusion must be lawful, the discovery of the evidence inadvertent, and the incriminating nature of the evidence immediately apparent. State v. Wilmoth (1982), 1 Ohio St. 3d 118. In rejecting the officer's testimony that the defendant invited the officers to enter and search his apartment, the court stated: "*** [I]t still strains credibility to believe that a person who had been involved in a murder just two days earlier would, one, have the murder weapon not only in his apartment, but lying in plain view, and two, inviting half a dozen police officers into his apartment to speak about the crime, knowing full well that once they entered they would be unable to avoid seeing such incriminating evidence. - 5 - "It is more reasonable to believe that the defendant either did not invite the officers in at all, or did so only in the belief that he could not refuse them entrance." As the trier of fact, the court had the discretion to believe King's version of the events. State v. DeHass (1957), 10 Ohio St. 2d 230. Further, as previously noted, the state failed to demonstrate either probable cause or exigent circumstances to justify their entry into King's apartment. Since the initial intrusion was not lawful the plain view exception cannot apply. Wilmouth, supra. Accordingly, the state's assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, J., and SPELLACY, J., CONCUR. PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .