COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69946 CITY OF WARRENSVILLE HEIGHTS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION LEENORA BOBBITT : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 8, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Bedford Municipal Court Case No. 95-CRB-01404AB JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: HOWARD S. STERN, ESQ. TERRY H. GILBERT, ESQ. STEINER & STERN 1700 Standard Building LAW DIRECTOR 1370 Ontario Street 75 Public Square, Suite 1400 Cleveland, Ohio 44113 Cleveland, Ohio 44113 SAMUEL HANDELMAN, ESQ. ROSS S. CIRINCIONE, ESQ. 75 Public Square, Suite 1200 ASST. DIRECTOR OF LAW Cleveland, Ohio 44113 5306 Transportation Blvd. Garfield Hts., Ohio 44125 STEPHEN M. KLONOWSKI, ESQ. REDDY, GRAU & MEEK 5306 Transportation Blvd. Garfield Hts., Ohio 44125 - 2 - DYKE, J.: The City of Warrensville Heights appeals from the order of the Bedford Municipal Court which suppressed evidence and dismissed charges against defendant Leenora Bobbitt. For the reasons set forth below, we reverse and remand for further proceedings. On July 11, 1995, defendant was charged in the Bedford Municipal Court with obstructing official business (to wit: running from police), and resisting her own arrest (to wit: by fighting and trying to flee) in violation of the Codified Ordinances of the City of Warrensville Heights. Defendant pleaded not guilty and moved to dismiss the charges and/or suppress the evidence, asserting that her arrest followed a warrantless entry into her home which was not justified by exigent circumstances. The court held an evidentiary hearing on the motion on October 26, 1995. The city presented the testimony of Warrensville Heights Police Officer Vincent Dillon, and Sergeant Gregory Curtin. Dillon testified that he was in uniform patrol on the evening of July 10, 1995. At approximately 11:45 p.m., he was called to the Banbury Village Apartments in response to a complaint of a civil distur- bance. Dillon and other officers on the scene invoked a curfew, but several groups of males remained outdoors and began to pelt the officers with rocks and bottles. The officers were then instructed to leave the area, and the Community Response Team, a special tactical unit, was given orders to respond to the disturbance. Dillon then proceeded to Interstate 480, just north of the - 3 - apartment complex, and continued to monitor the disturbance. He observed two people whom he believed to be the leaders of the disturbance and he conveyed descriptions of them to the response team. He next observed at least five officers from the team chasing these suspects and observed a "flash bang" or a diversionary incendiary device. The chase then continued beyond Dillon's view. Dillon stated on cross-examination that the suspects were being pursued for disorderly conduct, a misdemeanor, but the prosecutor for the city maintained that they could be prosecuted for attempted felonious assault upon a police officer, 1 and inciting to violence, which are felonies. Curtin testified that he is a member of the Community Response team and that seven members of the team responded to the apartment and received descriptions of the suspects from Dillon. The team detonated a "flash bang" device when they entered the complex in order to divert the attention of a large group of people who were gathered. The team was then pelted with bottles. Curtin and two other members of the team began pursuit of two men. The suspects ran into defendant's apartment with Curtin following one pace behind. Curtin identified himself as a police officer and ordered them to stop. The men continued inside, made reference to a gun, and slammed the door of the apartment shut. Curtin again 1 The record does not indicate which, if any, charges were actually filed against the suspects. The prosecuting attorney maintained at oral argument, however, that they were each charged with felony and misdemeanor offenses, and counsel for defendant does not dispute this claim. - 4 - identified himself as a police officer and ordered that they open the door. There was no response, so Curtin attempted to kick in the door. Seconds later, another member of the team breached the door with a ram and the team entered. Curtin further testified that the team feared that the suspects would escape from the back door of the apartment and that the team did not have the back door secured at the time the front door was breached. Finally, Curtin stated that he went into the apartment a short time later, after the suspects were secured and he had physical contact with defendant. Defendant elected to present evidence and testified that she worked at her job as a drapery seamstress at J.C. Penney until 12:30 a.m. and arrived home at 12:50 a.m. She did not see any civil disturbance taking place. Her son came home a short time later and told her that a curfew had been imposed. They then sat on the couch and defendant heard a bicycle on the porch being rattled. Defendant opened the door to look out and saw two of her son's friends standing at her door. At this time, she saw the flash from the "flash bang." Defendant and her son's friends then went into the apartment and defendant shut the door. As defendant returned to her seat on the couch, the door burst open. Defendant stood up to see what was wrong and was struck with the ram used to breach the door. Defendant denied that the police announced their presence before entering. The city objected to the presentation of any evidence - 5 - concerning the subsequent activity in the apartment. The trial court sustained this objection and limited the matter to facts surrounding the officers' entry, and whether or not there were exigent circumstances, which was the subject of defendant's motion. The trial court subsequently determined that "the Officers entry into Mrs. Bobbitt's home violated her Fourth Amendment Rights." The court suppressed the evidence and dismissed the matter. The city now appeals and assigns two errors for our review. I. The city's first assignment of error states: THE BEDFORD MUNICIPAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR DISMISSAL AND/OR SUPPRESSION IN THAT THE WARRANTLESS ENTRY INTO HER HOME WAS REASONABLE, AND THEREFORE PERMITTED, DUE TO THE EXISTENCE OF EXIGENT CIRCUMSTANCES. With regard to procedure, this court notes that Supreme Court of the United States has recently held that in general, the determination of whether there is probable cause should be reviewed de novo on appeal. See Ornelas v. United States 513 U.S._____, 116 St.Ct. 1657. The Court explained: A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Brinegar, supra, at 171, 69 S.Ct., at 1308. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of- course, would be unacceptable. - 6 - In addition, the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles. See Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985). ***. Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined "'set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.'" New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 768 (1981). *** Id., at 1661-1662. With regard to the substantive law, we note that the Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreason- able searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment proscribes all unreasonable searches and seizures and it is a cardinal principal that "searches conducted outside the judicial process, without approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject to only a few specially established and well-delineated exceptions." Mincey v. Arizona (1978), 437 U.S. 385, 390, State v. Howard (1991), 75 Ohio App. 3d 760, 766. Thus, warrants are generally required to search a person's home unless "`the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable - 7 - under the Fourth Amendment. Id., quoting McDonald v. United States (1948), 335 U.S. 451. See, also Warden v. Hayden (1967), 387 U.S. 294. In applying the exigent circumstances exception to the warrant requirement, the Supreme Court of the United States has recommended a "common sense approach" which considers the gravity of the underlying offense for which the arrest is being made. Welsh v. Wisconsin (1984), 466 U.S. 750. The Court has refused to find exigent circumstances where the police make a warrantless entry into a home in order to arrest for a noncriminal traffic offense, id., and has stated that application of the exigent circumstances doctrine "should rarely be sanctioned" when a "minor offense" is at issue. The Court noted that there must be some real immediate and serious consequences, including threat to public safety, if the officer postponed action in order to get a warrant. Id. More recently, the Court has stated that the proper legal standard for determining whether there are exigent circumstances contemplates whether "there is hot pursuit of a fleeing felon, or imminent destruction of evidence, Welsh v. Wisconsin, 466 U.S. 740 [104 S.Ct. 2091, 80 L.Ed.2d 732] (1984), or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling." Minnesota v. Olsen (1990), 495 U.S. 91, 100, citation omitted. In Hayden, supra, the Supreme Court of the United States held that police acted reasonably when they entered a house to search for an armed robber when they received information that he had - 8 - entered that house minutes earlier. The court stated: We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, "the exigencies of the situ- ation made that course imperative." McDonald V. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape. Id. at 298-299. Similarly, in Steagald v. United States (1981), 451 U.S. 204, 217-218, the Supreme Court of the United States observed that at common law, a constable could make forcible entry into a third party's home to arrest a person pursued to that location. The Steagald Court noted: To be sure, several commentators do suggest that a constable could "break open doors" to effect such an arrest. See 1 J. Chitty, Criminal Law *57 (Chitty); M. Foster, Crown Law 320 (1762) (Foster; 2 M. Hale, Pleas of the Crown 116-117 (1st Am. ed 1847) (Hale). But see 4 E. Coke, Institutes *177. As support for this proposition, these commentators all rely on a single decision, Semayne's Case, 5 Co.Rep. 91a, 92b-93a, 77 Eng.Rep. 194, 198 (K.B. 1603). See 1 Chitty *57; Foster 320; 2 Hale 116. Although that case involved only the authority of a sheriff to effect civil service on a person within his own home, the court noted in dictum that a person could not "escape the ordinary process of law" by seeking refuge in the home of a third party. 5 Co.Rep., at 93a, 77 Eng.Rep., at 198. However, the language of the - 9 - decision, while not free from ambiguity, suggests that forcible entry into a third party's house was permissible only when the person to be arrested was pursued to the house. The decision refers to a person who "flies" to another's home, ibid., and the annotation notes that "in order to justify the breaking of the outer door; after denial on request to take a person ... in the house of a stranger, it must be understood ... that the person upon a pursuit taketh refuge in the house of another." Id., at 93a, n. (I), 77 Eng.Rep. at 198, n. (I) (emphasis in original). The common-law commentators appear to have adopted this limitation. See 1 Chitty *57 (sheriff may enter third parties' home "if the offender fly to it for refuge"); Foster 320 ("For if a Stranger whose ordinary Residence is elsewhere, upon a Pursuit taketh Refuge in the House of another, this is not his Castle, He cannot claim the Benefit of Sanctuary in it"); 2 Hale 116, n. 20 (forcible entry permissible "only upon strong necessity"). We have long recognized that such "hot pursuit" cases fall within the exigent-circumstances exception to the warrant requirement, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and therefore are distinguishable from the routine search situation presented here. (Emphasis added.) In United States v. Santana (1976), 427 U.S. 38, the court held that the defendant's act of retreating into her house as police approached to arrest her for a drug transaction in a public place, could not thwart an otherwise proper arrest. In State v. Jacobs (May 31, 1995), Summit App. No. 93 11 2773, unreported, the court applied the foregoing principles and held that defendant was properly convicted of obstructing justice following a warrantless entry into her home in pursuit of individuals whom police had reason to believe were engaged in drug activity. In this instance, we hold that the warrantless intrusion into defendant's home was justified by exigent circumstances. Under - 10 - the officer's version of events, the warrantless entry was within seconds of the suspects entry into the apartment. Under defendant's version, she let the suspects into her home, and the entry followed as she returned to her seat on the sofa. In any event, the entry was well under the "minutes" contemplated in Warden v. Hayden, supra. The evidence therefore established that the officers were in hot pursuit. Moreover, there is support for the city's claim that the suspects were fleeing felons, see R.C. 2903.12(B), 2917.01, that the police entered in order to prevent the suspects' escape through the rear of the dwelling, and that the suspects posed a danger to the police and others outside the dwelling in light of their alleged participation in the civil disturbance which was occurring. The first assignment of error is well taken. II. The city's second assignment of error states: THE BEDFORD MUNICIPAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR DISMISSAL AND/OR SUPPRESSION IN THAT DEFENDANT'S ACTIONS WHICH GAVE RISE TO THE CRIMINAL CHARGES AFTER THE WARRANTLESS ENTRY INTO HER RESIDENCE WERE NOT PRIVILEGED. In Middleburg Heights v. Theiss (1985), 28 Ohio App.3d 1, this court affirmed convictions for assault and resisting arrest which followed warrantless entry into the defendants' home in order to arrest for a misdemeanor. This court stated: ***[R]esolution of [the issue of whether the officers illegally entered the house] is not critical to - 11 - the disposition of the case. Instead, the critical issue to resolve is whether, assuming the entrance was unlawful, the defendants were then privileged to assault police officers after they had gained entrance into the home. We think not. *** The extent of the privilege to resist unlawful entry into the home has yet to be dealt with in Ohio. The United States Supreme Court has repeatedly held, however, that searches and seizures inside a home without a warrant are presumptively unreasonable. Steagald v. United States (1981), 451 U.S. 204; Payton v. New York (1980), 445 U.S. 573; and Coolidge v. New Hampshire (1971), 403 U.S. 443. An occupant can act on that presumption and refuse admission. The Fourth Amendment gives him a constitutional right to refuse to consent to entry and search. The assertion of that right cannot be a crime. Camara v. Municipal Court (1967), 387 U.S. 523, 530-533; Schneckloth v. Bustamonte (1973), 412 U.S. 218, 233; District of Columbia v. Little (1950), 339 U.S. 1, 7; United States v. Prescott (C.A.3, 1978), 581 F.2d 1343; Miller v. United States (C.A.5, 1956), 230 F.2d 486. It is clear from these cases that an individual can lawfully refuse to consent to a warrantless search. Further, we recognize, consistent with the aforementioned cases, that there exists at least some limited right to resist entrance, such as locking or closing the door or physically placing one's self in the officer's way. We do not, however, recognize the appellants' conduct herein as privileged. This is because the offenses charged do not relate to the entry of the premises. The charges stem from assaults on the police officers with the intent to cause injury after access had been gained. We hold, therefore, that violence against an officer after he has gained entrance into the residence, albeit unlawfully, with a purpose to cause physical injury rather than to resist entry, is not privileged conduct. Such conduct not only impedes the police but endangers all parties involved. Accordingly, appellants' convictions must be affirmed. The first assignment of error is overruled. (Emphasis added.) See, also Strongsville v. Waiwood (1989), 62 Ohio App.3d 521, 528; State v. Neftzer (1992), 62 Ohio Misc.2d 384, 387. - 12 - These cases demonstrate that the conduct after the entry is the critical issue in determining whether the defendant's conduct is privileged. Therefore the trial court erred in failing to require evidence of defendant's conduct after the police breached the door. Defendant maintains that any errors here were invited by the city's objection to the presentation of evidence of events occurring after the initial entry. See Tr. 7-8. Cf. State v. Combs (1991), 62 Ohio St.3d 278, 287. The city maintains, however, that because defendant's motion to dismiss did not address the issue of privilege, they were not obliged to demonstrate lack of privilege below. Inasmuch as defendanat's motion did not address the privilege issue, the city had no burden of going forward on this issue. See, Xenia v. Wallace (1988), 37 Ohio St.3d 216, 220. In any event, since the basis of the trial court's judgment was its erroneous conclusion that "the Officers entry into Mrs. Bobbitt's residence, without a warrant in these circumstances, violated the Defendant, Leenora Bobbitt's Fourth Amendment Rights" it is clear that the court did not reach the issue of privilege. Therefore, this matter must be reversed and remanded for further proceedings. Reversed and remanded. - 13 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its 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. PORTER, P.J., CONCURS. KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART (SEE ATTACHED CONCURRING AND DISSENTING OPINION) ANN DYKE 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69946 : CITY OF WARRENSVILLE HEIGHTS : : : CONCURRING Plaintiff-Appellant : : AND v. : : DISSENTING LEENORA BOBBITT : : OPINION : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 8, 1996 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur in the majority's disposition of the second assignment of error, but respectfully dissent from its disposition of the first. I would reverse and remand for findings by the municipal court before prematurely deciding the merits of the suppression motion. The parties in this case presented sharply conflicting evidence on several disputed issues during a lengthy evidentiary hearing on the motion. The municipal court simply granted the motion to suppress evidence without stating its essential findings - 2 - 2/ as required by Crim.R. 12(E) . The failure to state such findings constitutes reversible error. Therefore, the matter should be remanded to the municipal court to satisfy its obligation to make appropriate findings. State v. Edwards (1993), 86 Ohio App.3d 550, 554; Akron v. Milewski (1985), 21 Ohio App.3d 140, 141-142. Contrary to the majority opinion, Ornelas v. United States (1996), 116 S.Ct. 1657, does not excuse the municipal court's failure to make such findings. Ornelas held that a reviewing court must conduct a de novo review of the trial court's reasonable 3/ suspicion and probable cause determinations. De novo means "anew," "over again," or a "second time." This standard of review presupposes, as in Ornelas, and unlike the case sub judice, that the trial court initially made factual findings to support its decision. Without such findings this court cannot properly "review" the municipal court's judgment. The Ohio Supreme Court has specifically recognized that reviewing courts cannot cure defects in a trial court's judgment by independently considering the record as the majority purports to do 2/ Crim.R. 12(E) provides in pertinent part as follows: Where factual issues are involved in determining a motion, the court shall state its essential findings on the record. 3/ Ornelas involved a direct appeal to a federal court of appeals from a federal district court and it is not clear whether the same standard applies to state court proceedings under state criminal rules. The Ohio Supreme Court has repeatedly held under Ohio law that determinations concerning the weight of the evidence and credibility of witness testimony are for the trial judge on motions to suppress evidence. State v. Mills (1992), 62 Ohio St.3d 357, 366. - 3 - in this case. Cf. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. The parties in this case vigorously disputed the sequence and timing of the events, as well as other matters. Without resolving these factual questions or explaining the basis for its ruling, the trial court granted the motion to suppress. Rather than resolving these factual disputes, and inexplicably reaching the exact opposite conclusion based on the same evidence, this court should .