COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69035 CITY OF CLEVELAND : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION AYMAN ABUHAMDUH : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 7, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Municipal Court : Case No. 95-CRB-4944 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Carolyn W. Allen, Esq. Thomas Paris, Esq. Chief Prosecuting Attorney 55 Public Square City of Cleveland Suite 1575 By: Ann M. Feighan, Esq. Cleveland, Ohio 44113 Assistant Prosecuting Atty. The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: This cause came to be heard upon the accelerated calendar pursuant to App.R.11.1 and Loc.App.R. 25. Ayman Abuhamduh, defendant-appellant, appeals from the trial court's decision to deny his motion to suppress evidence obtained during a warrantless search. The sole issue raised by appellant is whether the trial court was correct in denying appellant's motion to suppress evidence because the warrantless search and seizure were justified by the plain-view and exigent circumstance exceptions to the warrant requirement. A review of the record compels affirmance. I. The arresting officer, Officer Dwayne Smith, was the sole witness at the suppression hearing, and his testimony is undisputed. On February 26, 1995, Officer Smith was assigned to a one-man car patrol, in the Sixth District, Cleveland, Ohio. He received a "Code 1" call from the radio dispatcher reporting a store clerk at 1054 East 71 Street had produced a firearm from behind the counter and pointed it at several customers. He immediately proceeded to the location, because a "Code 1" call is a high priority call meaning that there is imminent danger. Complying with police procedures, he waited for a back-up officer to arrive at the location. After the back-up officer arrived at the location, they entered the store with their guns drawn. Officer Smith testified when he entered the store, he observed appellant standing behind the counter to the left of the cash register. He testified that a youth later identified as -3- appellant's younger brother was standing in an open part between two sections of the store counter. Officer Smith observed a youth later identified as another younger brother of appellant sleeping on a cot behind the counter. At this time, the officer did not observe anyone else related to the operation of the store. Officer Smith said his firearm was displayed and he asked appellant and appellant's brother, who were standing between the two sections of the counter, to show him their hands; they complied with his request. Next, Officer Smith testified that he moved appellant's younger brother from behind the counter, so that he could observe the brother at all times and check behind the counter for the weapon. Appellant complied with Officer Smith's request to step from behind the counter. Then Officer Smith repositioned himself behind the counter to secure the premises and check for the weapon. Officer Smith recounted when he moved behind the counter, he observed on the floor, to the right of the cash register from behind the counter, a plastic candy jug that contained approximately eighty "Chore Boys." He explained a "Chore Boy" is a filter used when smoking crack. The plastic jug also contained seven to ten glass tubes which he identified as "straight- shooters," which are also used to smoke crack. After he observed the drug paraphernalia behind the counter, he glanced at appellant's younger brother and appellant's younger brother was holding, what appeared to Officer Smith to be, a small derringer. He confirmed that appellant's brother was actually -4- brandishing a small toy derringer. However, at this time, the officer explained that at the time he did not know it was a toy, he said that it looked exactly like a real derringer. Officer Smith then pointed his weapon directly at appellant's brother and told him to drop the weapon. Appellant's brother refused to drop the weapon after Officer Smith asked him two times. He told appellant's brother to drop the weapon for a third time and that if he did not drop the weapon he would shoot him. Subsequently, appellant instructed his brother, in their native tongue, to drop the weapon, and the brother dropped the weapon. Officer Smith, then Mirandized and placed the younger brother under arrest. Officer Smith stated that he spoke with appellant and confirmed that he was in charge of the store at that time. Appellant was Mirandized because of the drug paraphernalia. Appellant spoke with Officer Smith about the drug paraphernalia behind the counter; appellant explained that he understood that selling crack pipes was wrong, because it contributed to the drug problems in the neighborhood. Subsequently, Officer Smith transported appellant and his brother to jail. On cross-examination, Officer Smith confirmed while he waited for the back-up officer to arrive at the location, he spoke with the radio dispatcher to gather more information about the circumstances within the store. Officer Smith was informed that an adult female called in the report, and the female caller indicated that she would be standing outside the store. Officer Smith -5- acknowledged that he could not confirm whether she was standing outside the store when he arrived, and he did not speak with her when he arrived at the store. On re-cross examination, the officer explained when he glanced at the contents of the plastic container on the floor, he knew by his experience that the container held drug paraphernalia. Finally, Officer Smith testified the drug paraphernalia was found in the vicinity of appellant, and not in the room that is separated from the rest of the store by a doorway. After the hearing concluded, the trial court ruled that appellant's motion to suppress evidence would be denied. Appellant was found guilty of possessing drug paraphernalia. Appellant was sentenced to a fine of two hundred and fifty dollars and fifteen days in jail; a hundred dollars of the fine and the days were suspended. Appellant was placed on nine months inactive probation. Appellant timely appeals. II. Appellant assigns as his sole assignment of error: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE, WHICH EVIDENCE WAS IMPROPERLY SEIZED FOLLOWING A WARRANTLESS SEARCH OF PRIVATE PREMISES IN THE ABSENCE OF ANY EXIGENT CIRCUMSTANCES. Appellant specifically asserts his motion to suppress should have been granted by the trial court because the state failed to show that exigent circumstances justified the warrantless search of the premises. -6- The Fourth Amendment to the United States Constitution protects the "right of people to be secure in their persons, houses papers, and effects, against unreasonable searches and seizures." Warrantless searches are per se unreasonable under the Fourth Amendment-subject only to a few specially established and well- delineated exceptions. State v. Welch (1985), 18 Ohio St.3d 88, 91, 480 N.E.2d 484, citing Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d. 576. The warrantless search by a law enforcement officer of an object in plain view does not violate the Fourth Amendment if: (1) the officer did not violate the Fourth Amendment in arriving at the place from which the object could be plainly viewed; (2) the officer has a lawful right of access to the object; and (3) the incriminating nature of the object is immediately apparent. Horton v. California (1990), 496 U.S. 128, 136-137, 110 S.Ct. 2301, 2308, 110 L.Ed. 2d 112, 114. The United States Supreme Court has recognized an emergency exception to the Fourth Amendment search-warrant requirement. This exception applies when there is a reasonable basis for the police to believe that someone inside the premises needs immediate aid. Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290. "[O]nce a warrantless search is established, the burden of persuasion is on the state to show the validity of the search." State v. Cheers (1992), 79 Ohio App.3d 322, citing Xenia v. Wallace (1988), 37 Ohio St.3d 216,218, 324 N.E.2d 889, 891-892. In Cheers, -7- supra, the court discussed the exception to the warrant requirement when an emergency situation exists. The court stated: The emergency situation exception to the warrant requirement is satisfied by a showing the police officers had "reasonable grounds to believe that some kind of emergency existed ***." State v. Hyde (1971), 26 Ohio App.2d 32, 34, 55 O.O.2d 52, 268 N.E.2d 820, 821. In People v. Mitchell (1976), 39 N.Y. 173, 177-178, 383 N.Y.S.2d 246, 347 N.E.2d 607, 609, the court stated the three-part test used to establish the emergency situation exception to the warrant requirement: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by the intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause to associate the emergency with the area or placed to be searched. *** Cheers, at 325-326. "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." State v. Applegate (1994), 68 Ohio St.3d 348, 349 citing Mincy v. Arizona (1978), 437 U.S. 385, 392, 98 S.Ct. 2408, 2431, 57 L.Ed.2d 290, 300, quoting Wayne v. United States (C.A.D.C. 1963) 318 F.2d 205, 212, certoriari denied (1963), 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d. 86. "This exception applies when there is a reasonable basis for the police to believe that someone inside the premises needs immediate help." State v. Willoughby (1992), 81 Ohio App. 562. The trial court properly concluded the plain-view and exigent circumstance exceptions to the Fourth Amendment were applicable to -8- the facts of the instant case. Here, the three-part requirement of to the plain-view exception to the Fourth Amendment was satisfied: (1) Officer Smith was legitimately within plain view of the drug paraphernalia, in that he saw the drug paraphernalia when he moved behind the store counter to secure the premises and search for the weapon; (2) Due to Officer Smith's experience, he was able to identify the contents of the plastic container as drug paraphernalia; and (3) Officer Smith had lawful access to the drug paraphernalia as he saw the drug paraphernalia while he was searching for the weapon. Contrary to appellant's contention, the record fails to substantiate appellant's assertion the officer found the drug paraphernalia after he ventured into another section of the store. Turning to the exigent circumstance exception to the Fourth Amendment, the state demonstrated the exigent circumstance exception to the Fourth Amendment was applicable to the facts of the instant case: (1) Officer Smith had reasonable grounds to believe an emergency existed and that there was an immediate need for assistance for the protection of life, as he was responding to a "Code 1" radio call that reported a store clerk was standing behind a counter with a firearm and threatening several customers; (2) The sole purpose of Officer Smith's search behind the counter was to secure the premises and locate the weapon; (3) Finally, Officer Smith had a reasonable basis to associate the emergency, the "Code 1" call, to the area that he searched. -9- Accordingly, appellant's assignment of error is overruled. Judgment is affirmed. -10- It is ordered that appellee recover of appellant its 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 Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE JAMES M. PORTER, JUDGE TIMOTHY E. McMONAGLE, JUDGE 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, .