COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69838 CITY OF SHAKER HEIGHTS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION TIMOTHY NOLAN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 1, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE SHAKER HEIGHTS MUNICIPAL COURT CASE NO. 93-CRB-7627 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: GARY R. WILLIAMS Chief Prosecutor City of Shaker Heights 3400 Lee Road Shaker Heights, Ohio 44120 For Defendant-Appellant: TIMOTHY J. KORAL (#0031262) 1750 Standard Building 1370 Ontario Street Cleveland, Ohio 441130-1747 JEAN M. CULLEN (#0055597) 105 American Street Chagrin Falls, OH 44022 - 2 - SPELLACY, C.J.: Defendant-appellant Timothy Nolan ("appellant") appeals his criminal conviction for noncompliance under Section 1409.04 of the Shaker Heights Housing and Building Code. Appellant raises the following three assignments of error for our review: I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ADMITTED EVIDENCE OF ALLEGED HOUSING CODE VIOLATIONS OVER APPELLANT'S REPEATED OBJECTIONS BEFORE AND DURING TRIAL, WHERE SUCH EVIDENCE WAS OBTAINED DURING THE COURSE OF AN ADMINISTRATIVE SEARCH CONDUCTED UPON THE PREMISES OF APPELLANT WITHOUT A WARRANT, WITHOUT CONSENT, AND WITHOUT THE EXISTENCE OF AN EMERGENCY. II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT REFUSED TO ALLOW DEFENSE COUNSEL TO CROSS- EXAMINE THE PROSECUTOR'S WITNESS TO TEST THE CREDIBILITY OF THE WITNESS'S AFFIRMATIVE STATEMENT THAT SAID WITNESS HAD CONDUCTED AN INSPECTION IN ACCORDANCE WITH THE MUNICIPAL ORDINANCES UNDER WHICH THE ACCUSED WAS CHARGED. III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THE DEFENDANT GUILTY OF THE OFFENSES CHARGED DESPITE THE FACT THAT THE PROSECUTION FAILED TO ESTABLISH EVEN A PRIMA FACIE CASE OF ANY OF THE ELEMENTS OF THE OFFENSES CHARGED. Finding appellant's first assignment of error to have merit, the decision of the trial court is reversed and remanded. The facts giving rise to this appeal as contained in the record provide the following. On June 15, 1993, the City of Shaker Heights Housing Department received a complaint regarding property owned by appellant located at 21400 Fairmount Boulevard. Subsequent to receiving the aforementioned complaint, Mr. Sam Orteca, a housing - 3 - inspector for the City of Shaker Heights Housing Department, inspected the property. Upon his inspection, Mr. Orteca observed the following violations: debris and litter located behind the garage; slag driveway; cracked and peeling paint on the exterior portion of the house; loose or open joints in the gutters or downspouts; deteriorated, unlevel stoops in the rear entrance; unsecure stoops in the rear entrance; mortar joint not weathertight in the rear entrance; blocked drains in all of the window wells; deteriorated and missing siding on the exterior of the garage; unprotected exterior surfaces on the garage; non-functioning overhead garage door; and damaged overhead garage door. Mr. Orteca subsequently mailed appellant a violation notice. On July 14, 1993, Mr. Orteca conducted a reinspection of appellant's property. Upon his reinspection, however, Mr. Orteca noticed that no progress had been made at that point. (Tr. 12). On July 21, 1993, Mr. Orteca issued appellant a second letter regarding the violations. Mr. Orteca requested that appellant either contact him within ten days to make arrangements to notify him as to how he was going to progress with correction of the violations or let him know when the violations had been repaired. (Tr. 12). Mr. Orteca never heard from appellant and subsequently conducted a third inspection of appellant's property on August 13, 1993, and a fourth inspection on October 15, 1993. On August 18, 1993, the City of Shaker Heights filed a complaint and affidavit against appellant alleging that appellant - 4 - violated the Codified Ordinances of the City of Shaker Heights, Section 1409.04. Appellant filed a motion to dismiss and a motion to suppress evidence on September 11, 1995. On September 15, 1995, however, the trial court, without a hearing, denied both motions. On September 18, 1995, a bench trial was conducted and appellant was found guilty of violating Section 1409.04 of the Codified Ordinances of the City of Shaker Heights. The trial court imposed a fine of one thousand dollars ($1,000.00), ten days in jail, and three years probation. The court subsequently suspended nine hundred ($900.00) dollars of the fine, as well as appellant's jail time on the condition that, defendant enter into, by October 1, 1995, a plan to correct any remaining violations; that such violations be corrected in accordance with such plan; and that appellant not be re-cited by the housing authority for the next three-year period. (Tr. 26). I. In his first assignment of error, appellant contends that the trial court erred when it denied his motion to suppress. In particular, appellant asserts that the City of Shaker Heights, in failing to obtain a warrant or consent to enter onto his property, violated his Fourth Amendment right to be free from unreasonable search and seizure. "A motion to suppress is defined as a device used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search - 5 - and seizure), * * * of the U.S. Constitution." State v. French (1995), 72 Ohio St.3d 446. A motion to suppress is the proper vehicle for raising constitutional challenges based on the exclusionary rule first enunciated by the United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383. Id. at 449. The Fourth Amendment to the United States Constitution preserves "[t]he rights of the people to be secure in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures. . . . " It has been widely recognized, however, that "[t]he special protection accorded by the Fourth Amendment to the people in their persons, houses, papers, and effects, is not extended to the open fields." Oliver v. United States (1984), 104 S.Ct. 1735, 1740. Rather, the amendment protects those expectation[s] that society is prepared to recognize as reasonable. Id. The issue presented before this court requires our determination of whether the City of Shaker Heights Housing Inspector violated appellant's Fourth Amendment Right to be free from unreasonable search and seizure when the city housing inspector entered upon appellant's property without a search warrant or appellant's permission. Thus, the question becomes whether appellant has a reasonable expectation of privacy in the outside area surrounding his home. In Katz v. United States (1967), 88 S.Ct. 507, the United States Supreme Court stated: "[f]or the Fourth Amendment protects - 6 - people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 87 S.Ct. 424, 428; United States v. Lee, 47 S. Ct. 746. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Katz, supra. In Oliver, supra, the United States Supreme Court addressed the question of whether an individual has a reasonable expectation of privacy in "open fields". Recognizing that open fields do not warrant Fourth Amendment protection, the court in Oliver reaffirmed the decision set forth in Hester v. United States, 265 U.S. at 59, and stated: "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Oliver, supra at 1741. The area immediately surrounding the home has come to be known as "curtilage". In United States v. Dunn, 107 S.Ct. 1134, the United States Supreme Court stated that "the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." Id. The Dunn court, recognizing the difficulty lower courts have had with defining the extent of a home's curtilage, set forth four factors for courts to consider when determining curtilage: the proximity of the area claimed to be curtilage to the home; whether the area is included within an - 7 - enclosure surrounding the home; the nature of the uses to which the area is put; and the steps taken by the resident to protect the area from observation by people passing by. Dunn, supra at 1139. The United States Supreme Court, however, recognized that the aforementioned factors should be applied on a case by case basis, and that application of the factors may not always yield a correct answer to all extent-of-curtilage questions. Id. In the case sub judice, the City of Shaker Heights adopted an ordinance requiring its housing inspectors to obtain either permission of the owner prior to entering onto his or her property or to obtain a search warrant where no emergency situation exists. In particular, the City of Shaker Heights Municipal Ordinance Sec. 1409.02 states: (a) The Commissioner of Buildings or any of his assistants may at any reasonable hour, enter any dwelling, multifamily dwelling, building, structure, or premises within the City to perform any duty imposed on him by this Housing Code, provided that permission to enter is obtained from the occupant or, in the case of unoccupied property, from the owner or his agent. If such permission is refused or is otherwise unobtainable, a search warrant shall be obtained before such entry or inspection is made, except in the case of an existing emergency in which case entry may be made at any time and no search warrant is necessary. The Municipal Ordinance defines "premises" in Sec. 1407.20 as a lot, parcel or plot of land, including the buildings or structures thereon. Generally, the exclusionary rule has been applied to violations of a constitutional nature only. Kettering v. Hollen - 8 - (1980), 64 Ohio St.2d 232, 234. The Ohio Supreme Court has enunciated the policy that the exclusionary rule would not be applied to statutory violations falling short of constitutional violations, absent a legislative mandate requiring the application of the exclusionary rule. Id. Violation of the City of Shaker Heights Municipal Code Sec. 1409.02, though a statutory violation, rises to the level of a constitutional violation where an individual's Fourth Amendment right to be free from unreasonable search and seizure is violated when a governmental housing inspector enters his or her premises without permission or a search warrant. In the present case, appellant alleges that Sam Orteca, entered onto his premises without his permission or a search warrant. Mr. Orteca subsequently cited appellant for several violations of the City of Shaker Heights Housing Code. Among the violations cited by Mr. Orteca were conditions observable only from the back of appellant's house. Thus, Mr. Orteca would have had to enter onto appellant's property in order to observe the violations. It is the opinion of this court that the area which Mr. Orteca entered onto constituted the curtilage of appellant's home, rather than open fields, and as such was constitutionally protected by the Fourth Amendment. Because Mr. Orteca lacked the requisite permission or a search warrant, the search of appellant's premises was illegal. - 9 - Evidence obtained from an illegal search is subject to the exclusionary rule. Illegally seized evidence therefore should be suppressed. Mr. Orteca's conduct not only violated the statutory requirements of the City of Shaker Heights Municipal Ordinance Sec. 1409.02, but also constituted a constitutional violation of appellant's Fourth Amendment right to be free from unreasonable search and seizure. Accordingly, appellant's first assignment of error is well taken. Appellant's second and third assignments of error are therefore moot. Judgment reversed. - 10 - This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. JOSEPH J. NAHRA, J. and TERRENCE O'DONNELL, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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. .