COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60069 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION EDWARD GREATHOUSE : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 21, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-237781 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor ROBERT H. GRANO, JR, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: ROBERT S. PASSOV 75 Public Square, Suite 914 Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: The State of Ohio appeals from an order of the trial court granting defendant's motion to suppress evidence. The relevant facts follow. Defendant was indicted by the Cuyahoga County Grand Jury on a two count indictment, viz., count one, R.C. 2925.11, drug abuse (possession of cocaine in less than the bulk amount); and count two, R.C. 2923.24, possession of criminal tools (pills and mari- juana seeds). Count one of the indictment contained two further- more clauses for prior drug convictions in 1974 and 1981. The charges of the indictment arose out of an incident which occurred on February 14, 1989. On that date, at about 11:30 p.m., a neighbor of defendant called the emergency 911 number to report he had seen an apparent robber exiting defendant's residence through an open window. Members of the Cleveland Police Department responded to the call. Two zone cars each containing two officers quickly arrived at defendant's residence, one shortly after the other. After obtaining information from the neighbor, the officers investigated defendant's residence. The residence was dark and the window from which defendant's neighbor had seen a person emerge had obviously been forcefully entered. The officers thereupon decided to check inside the residence to ascertain if there were any victims therein in need of help. Once inside the residence the officers recovered articles associated with drug activity. - 3 - Defendant was not home at the time of the apparent burglary; furthermore, he never spoke to the officers who responded to the call, nor did he report to the police that any of his property had been stolen. Approximately three months after the incident, however, defendant was indicted on the aforementioned charges. Prior to trial defendant moved to suppress the evidence recovered. The trial court held a hearing on the motion. After the hearing the trial court granted the motion on the ground the state had not proven the items seized were in "plain view." The following testimony was elicited at the hearing: Mr. Black testified that he was defendant's neighbor and lived in a house across the street from defendant. He testified that shortly after he arrived home from work, at about 11:30 p.m. the night of February 14, 1989, he observed from his window a car with its parking lights on parked on the "wrong" side of the street near defendant's residence. Defendant's residence was dark. His curiosity aroused, Mr. Black then observed "a man climbing out of the window" of defendant's residence "carrying something" which Mr. Black "thought was a VCR." Mr. Black ran outside; the man "jumped in the [waiting] car and they took off." Mr. Black then went back inside his home and telephoned 911 to report what he had seen. When the first zone car arrived, Mr. Black went outside to meet the officers. He stated one officer approached him and - 4 - asked him to describe what he had seen. He testified that soon afterwards he observed that the officers were inside defendant's house; the lights were on in the house. Mr. Black stated that after about twenty minutes someone else arrived at defendant's house whom he later learned was defendant's brother. Mr. Black stated the officers were at defendant's residence about forty minutes before they finally left; defendant's brother left about five or ten minutes thereafter. Officer Heffernan of the Cleveland Police Department, the officer who made the police report on the incident, then gave testimony concerning the police actions on the night of February 14, 1989. He stated he was working as a patrolman in a zone car with another officer on that night; the officers received a call to respond to defendant's residence for "a place entered, which refers to an aggravated burglary of a home" at about 11:30 p.m. He stated they arrived at the address within five to ten minutes. He testified that he spoke to the complainant, Mr. Black. Officer Heffernan's testimony also reveals that while he and Mr. Black were speaking, Heffernan's partner was apparently looking around the outside of defendant's residence with a flashlight. Two more officers arrived in another zone car. Officer Heffernan stated that after speaking with Mr. Black, and since "the window was still open," the four officers "decided to go in at that time to check if any additional suspect was inside, and to see if - 5 - there was a victim who might have been injured or harmed in some way during the offense." Therefore, the officers then entered the house. Officer Heffernan testified that they initially used their flashlights to check for victims or suspects. He further stated that the officers checked the house very thoroughly, "you know, any place people could hide, the closets, under the bed, the bathroom." He stated the residence looked as if it had been "ransacked." Upon entering the northeast bedroom, later determined to be defendant's bedroom, Officer Heffernan testified he noticed on the nightstand near the bed "several different items, all related to drugs," viz., "a scale, a razor blade with residue, a glass vial with [white] residue, and plastic baggies with [white] residue." The residue later tested positive for cocaine. Officer Heffernan testified he also observed between the bed and the nightstand two large plastic bags filled with what he believed to be marijuana. He stated the bedroom had also been "ransacked", i.e., "stuff was dishevelled, moved around ... you could tell stuff had been gone through." He testified he saw "a desk drawer open that had several different kinds of pills, a jar with marijuana seeds and a Tupperware container with several marijuana roaches [sic]." Officer Heffernan stated the officers then called for a supervisor who came to defendant's residence. Shortly after the supervisor arrived, defendant's brother, Mr. Ilmon, also came to - 6 - the residence to inquire as to what had happened. Officer Heffernan testified that Mr. Ilmon was advised to tell defendant that defendant should contact the police immediately so the officers could make a burglary or theft report if there was something stolen from the residence. Officer Heffernan also stated Mr. Ilmon was not informed that the officers had found drug-related items in defendant's residence. Officer Heffernan further testified that to his knowledge defendant never contacted the police department concerning the incident. On cross-examination Officer Heffernan was unable to recall certain details of the night in question, such as the following: (1) whether he actually spoke to Mr. Black; (2) which officer entered defendant's residence first; (3) exactly how he entered defendant's residence; (4) whether defendant's bedroom had a closet; (5) how the other bedroom in the residence looked or why he thought it looked "ransacked." However, Officer Heffernan explained that the incident occurred eighteen months previous to the suppression hearing and that he had not refreshed his memory by reading over his police report before testifying. Officer Heffernan further stated the following: Q. Now, Officer, you are sure that you conducted your search of the northeast bedroom before you conducted your search of the northwest bedroom? A. Yea. This was the first bedroom we went in, shined the light around, saw the stuff laying there -- - 7 - Q. Wasn't there a light operating in the bedroom? A. We might have turned one on later. Initially, when you go in, you use your flashlight. Q. And you check it; the bedstand, to see if anything was laying on the bedstand? A. You look around the room. Q. So you looked around with your flashlight, and you saw stuff on the bedstand, then you turned the light on? A. We saw the drawer. I don't remember if we turned the light on or not. We probably did. During Officer Heffernan's testimony on cross-examination, it was established that the items found in defendant's residence were listed on the police report and taken to Second District headquarters where they were entered into the property book. The items containing suspected narcotics were then taken to the Justice Center headquarters. The trial court thereupon requested the state to produce the items seized and to produce something, such as a "rule" or "regu- lation book," to establish what were "standard police procedures for searches." The trial court also questioned Officer Heffernan thoroughly regarding where the drug-related items were seen, and Officer Heffernan never wavered in his testimony that the items were all readily observable. During a luncheon recess the state was able to obtain for the trial court the items taken to the SIU lab for analysis, viz., (1) the various pills found by the officers in the dresser - 8 - drawer in defendant's bedroom; (2) the razor blade and small plastic baggie and small glass vial, all with the drug residue; and (3) two large plastic bags containing marijuana. Thereupon the following exchange occurred: THE COURT: Now, what about the scale? THE WITNESS: The scale. We didn't have enough time to get that. That's in a separate property room. Narcotic evidence and handguns are kept in one place. Even guns, I think, are kept in the property room. Narcotics are kept in a separate property room from the other evidence and property. 1 THE COURT: All right.... Further cross-examination of Officer Heffernan was thereafter permitted. When questioned about whether he left an inventory pursuant to Crim. R. 41, Officer Heffernan testified that he did not. The following exchange then occurred: Q. You would have to leave -- you would have to make an inventory in front of the occupants or somebody else independent of yourself that could verify what was taken out of the house, correct? A. That is correct, but, number one, we did not do a search warrant; number two, we did not search anything -- anything that was seized was in plain view. Defendant then testified at the hearing on the motion to suppress. He testified that he was out of town with his 1 The assistant prosecutor later volunteered to retrieve the scale from the prosecutor's office property room; the trial court left the decision whether to retrieve it to defense counsel, who stated he had "no further interest in it." - 9 - girlfriend on the night of February 14, 1989 but upon his return home the next day suspected that someone had been in his residence. He stated that when he entered his living room he noticed his girlfriend's stereo was on the couch and the VCR and base for his cordless phone were missing. He further stated that when he entered his bedroom he saw his desk was "open, and one of the drawers was missing that I keep my medication in." He testified he observed nothing else in his home that was out of the ordinary. He stated that he found out the police had been to his house "the next day" when his brother came over, but did not contact them because he had no insurance and he "figured everything was taken care of as far as anything that could be done" because the police had already been there. Defendant denied that the items found by the officers were his and further denied the items were in his bedroom when he left the residence. The state made a motion to strike defendant's testimony on the ground that it was not relevant to the issue before the trial court. However, the trial court denied the motion on the basis that the testimony was "relevant to the credibility of the officers." Defendant's brother also testified at the hearing on the motion to suppress. He stated he came to defendant's residence on the night in question because he saw the police cars and was concerned. He testified he knocked on the back door but the officers would not let him enter the residence for some minutes. - 10 - He stated that when he entered he noticed that the living room was "torn up" and he believed the VCR was missing from the stereo unit; he also stated his brother's room was "tore up." He testified the officers asked him if he would secure the residence and he did so. Terry Niemann, defendant's girlfriend, also testified. She stated she cleaned defendant's house and knew that when she and defendant left the house it was neat and no drug-related items were in defendant's bedroom. However, she stated that upon their return to the residence she observed something had happened. Her testimony follows: Q. What was the first thing unusual you observed? A. I said, "What the H happened?" Q. Why did you say that? A. Because the living room -- there is a table, desk in the living room, and the stereo was turned over on the floor, and the VCR was missing. That was the first things I noticed. Q. Was there something else you noticed? A. The bedroom. Q. Which bedroom? A. Ed's. Q. What did you notice in that bedroom? A. It was torn apart; not the way we left it -- Q. Okay. - 11 - A. -- and the front room, I noticed the screen was ripped out and the shade was down, the curtain rod, and there was mud footprints on the couch. Ms. Niemann further stated she and defendant kept personal medication in the desk drawer, which was also missing upon their return. She testified the medication therein was not kept in jars or bottles. Following Ms. Niemann's testimony, defendant sought to introduce into evidence a letter from his doctor describing medi- cation prescribed for leg pain and sleeplessness. The state objected and the objection was sustained by the trial court. The motion hearing was then concluded. Thereafter, the trial court issued its order granting defen- dant's motion to suppress. In its written findings, the trial court concluded that exigent circumstances existed which permitted the police to enter defendant's residence without a warrant. The trial court also concluded that the police officers' failure to comply with Crim. R. 41(D) did not render the evidence seized during the warrantless search inadmissible; however, it did discount the officers' "credibility." The trial court concluded the objects seized were not proved by the state to be in plain view; therefore, the evidence must be suppressed. The state has filed a timely appeal from the trial court's order, citing one assignment of error for review. The state's sole assignment of error follows: - 12 - THE TRIAL COURT IMPROPERLY SUPPRESSED ILLEGAL DRUGS AND DRUG PARAPHERNALIA EVIDENCE DISCOVERED IN PLAIN VIEW BY THE POLICE AFTER ENTERING A RECENTLY BURGLARIZED RESIDENCE UNDER EXIGENT CIRCUMSTANCES. This assignment of error has no merit. The state argues it proved by a preponderance of the evidence the officers' warrantless search of defendant's residence was justified by an exception to the Fourth Amendment warrant requirement, viz., the officers' entry was lawful due to the existence of exigent circumstances and once inside they found the evidence in plain view. The state contends the trial court's decision to suppress the evidence thus discovered was unsup- ported by the facts in the record. Since there was no search warrant for defendant's residence in the case sub judice, the state had the "burden of showing that the officer's search falls within an exception to the Fourth Amendment's requirement...". Athens v. Wolf (1974), 38 Ohio St. 2d 237, 239. The burden of proof on this issue is that of "a preponderance of the evidence." Id. at 241. In the case sub judice, the trial court properly found that the officers' entry of defendant's residence was lawful due to the existence of "exigent circumstances." As the court stated in State v. Roach (1982), 8 Ohio App. 3d 42 at 43, "the initial, warrantless intrusion ... was constitutionally permissible" because "the police officers had reasonable cause to believe that - 13 - an emergency situation existed." The court in Roach quoted the following from Mincey v. Arizona (1978), 437 U.S. 385, 392: We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reason- ably believe that a person within is in need of immediate aid. *** "The need to protect or pre- serve life or avoid serious injury is justifica- tion for what would be otherwise illegal absent an exigency or emergency." Moreover, when enforcement or safety personnel are searching a residence in response to an emergency situation, "an object which comes into plain view during such a search may be preserved without a warrant." State v. Newcome (1987), 41 Ohio App. 3d 51. See, also, State v. Coomer (1984), 20 Ohio App. 3d 264. Whether an object is in "plain view" is determined by means of a three-part analysis set forth as follows by the Ohio Supreme Court in State v. Williams (1978), 55 Ohio St. 2d 82: In order for evidence to be seized under the plain view exception to the search warrant requirement it must be shown that (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities. As to the first requirement, the trial court specifically determined that in the case sub judice the officers' initial intrusion was lawful. The Ohio Supreme Court defined the next two requirements of the plain view doctrine in the syllabus of State v. Halczyszak (1986), 25 Ohio St. 3d 301, thusly: - 14 - The "inadvertent discovery" requirement may be satisfied when police lack antecedent probable cause, i.e., an advance particularized knowledge of, or intent to seize, those objects ultimately seized. The "immediately apparent" requirement of the "plain view" doctrine is satisfied when police have probable cause to associate an object with criminal activity. In ascertaining the required probable cause to satisfy the "immediately apparent" require- ment, police officers may rely on their specialized knowledge, training and experience... There is no question that the items seized in the case sub judice satisfied the third requirement of the "plain view" doc- trine. Apparently, however, the trial court determined the second requirement of State v. Williams, supra, that of "inadver- tent discovery," was not met. In its opinion granting the motion to suppress, the trial court stated in pertinent part the follow- ing: Whether some or all of the seized items were in plain view is the central factual dispute. Defendant, having convictions in 1974, 1976, 1977 and 1980 for possession, sale and trafficking in marijuana, and in 1981 for possession of criminal tools, is a less than credible witness. At the same time, the police testimony leaves something to be desired. The police claim to have found marijuana in the defendant's house, but he was never charged with such a crime, notwithstanding that a substantial quantity was produced in Court. [Footnote omitted.] A scale was said to have been found in the defendant's bedroom but the scale was not produced in Court. Neither was the razor 2 See Footnote 1. - 15 - 3 blade with alleged cocaine residue. Pills were said to have been in plain view in an open desk drawer; but the desk was an old-fashioned desk with a fold-down top, the vial was of a size that was unlikely to fit in a small drawer such as described by the defendant and his girlfriend, and one vial was so opaque as not to reveal anything unless it was opened. In short, the many irregularities in the State's evidence leave one with an uncomfortable feeling about what actually led the police to discover controlled substances inside the defendant's house. Did the police actually see a scale, pills, a razor blade and large bags of marijuana in the defendant's bedroom by using a flashlight to look for suspects and victims? Or did the police, in trying to determine the identity of the absent owner and occupants of the house, first learn that one occupant had numerous convictions for dealing in marijuana and use that information as a reason to search for drugs? The irregularities are especially troublesome. If an inventory had been left at the scene with defendant's brother, then there would be a record related to the search that would be less susceptible to station-house afterthoughts. If the search had been conducted with a neutral civilian witness present (the neighbor who reported the burglary), then the conduct of the search could have been corroborated. If the photographs of the scene had been taken, then the state of disarray caused in the house by the burglary could have been recorded. Such departures from procedures which serve to protect private property from excessive and unwarranted police investigation lead the Court to conclude that the State has not met its burden of proving by a preponderance of the evidence that the seized items were found in plain view. Accordingly, the motion to suppress is granted. 3 The transcript of the hearing reveals the razor blade was produced at the hearing. - 16 - (Emphasis added.) It is clear from the foregoing the trial court made its determination on the second requirement of the plain view doctrine based upon the credibility of the witnesses. The trial court simply did not believe the officer's testimony that the discovery of the items was "inadvertant." The weight of the evidence and the credibility of the witnesses are to be determined by the fact-finder. State v. DeHass (1967), 10 Ohio St. 2d 230. An appellate court cannot substitute its judgment for that of the trial court on these matters, therefore, this court must affirm the trial court's order granting defendant's motion to suppress evidence. Accordingly, the state's sole assignment of error is over- ruled. The judgment of the trial court is affirmed. - 17 - It is ordered that appellee(s) recover of appellant(s) 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. SPELLACY, P.J., and HARPER, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .