COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72470 CITY OF WARRENSVILLE HEIGHTS : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ALAN G. HARDIN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Bedford Municipal Court, No. 96-CRB-02495. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Howard Stern, Esq. Prosecutor, Warrensville Heights 75 Public Square Cleveland, OH 44113 For Defendant-Appellant: Anthony J. Amato, Esq. 330 Standard Building 1370 Ontario Street Cleveland, OH 44113-1701 TIMOTHY E. MCMONAGLE, J.: Defendant-appellant, AlanG. Hardin ( appellant ), appeals the decision of the Bedford Municipal Court which denied his motion to -2- suppress without a hearing. For the reasons that follow, we reverse and remand. The record reflects that, in the late afternoon hours of December 15, 1996, Warrensville Heights police responded to a security alarm condition at a home where appellant resided. Upon arrival there, police verbally announced themselves and when no response was obtained, a K-9 dog accompanying the officers was released to search the inside of the home. After the dog returned indicating that no one was present inside the home, one of the officers searched the interior of the home with the dog. It was during this search that the dog discovered suspected marijuana and cocaine located in a shaving kit inside a hallway closet. Appellant was eventually charged with drug abuse in violation of Warrensville Heights Codified Ordinance 513.03. Appellant moved to suppress the evidence found during the search and requested an oral hearing on the motion. Less than four days later, the court denied appellant's motion finding that probable cause existed for the search. Upon appellant's request for findings of fact, the court adopted the reasoning set forth in its entry denying appellant's request for reconsideration which stated, in part: *** The purpose of a security alarm is to alert police to problems in order that they shall respond to the premises. The use of a dog affords the responding officer greater physical safety. The follow-up investigation by the officer to observe conditions the dog could not is not unreasonable. When a home owner installs a security system to alert police, he must anticipate a police response and has consented and indeed incouraged (sic) -3- the police to respond and search the premises for the cause of the alarm. Therefore, whether analyzed as a search based on exigent circumstances or consent or a blend of the two, this warrantless search is valid. *** Thereafter, the case proceeded to trial wherein appellant was found guilty as charged, fined $250 plus costs and received a suspended ten-day jail sentence. Execution of sentence was stayed pending appeal. Appellant timely appeals and assigns the following error for our review: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN FAILING TO HOLD A PRE-TRIAL HEARING ON APPELLANT'S MOTION TO SUPPRESS EVIDENCE. In his sole assignment of error, appellant contends that he is entitled to a hearing on his motion to suppress because he presented with sufficient particularity the legal and factual bases for the motion and, moreover, he requested an evidentiary hearing. The City, on the other hand, claims that there was no need for a hearing because appellant had presented his arguments so clearly to the court, and without opposition by the City, that the court was able to render a decision without the necessity of bringing to the court's attention without anything further. We disagree. In State v. Shindler (1994), 70 Ohio St.3d 54, the Supreme Court of Ohio held that in order to require a hearing on a motion to suppress evidence, the defendant must state the motion's legal and factual basis with sufficient particularity to place the prosecutor and court on notice of the issues to be decided. Id. -4- at the syllabus; see, als . The court relied n o, Crim.R. 471 Shindlero Xenia v. Wallace (1988), 37 Ohio St.3d 216 whi a defendant has demonstrated a warrantless search or seizure and adequately clarified that the ground upon which he challenges its legality is lack of probable cause, the prosecutor bears the burden of proof, including the burden of going forward with evidence, on the issue of whether probable cause existed for the search or seizure. Id.at paragraph two of the syllabus. The Wallace court reached this decision, in part, on the presumption of unreasonableness that attaches to searches conducted outside the judicial process. Id. at 218. In his motion to suppress, appellant challenged the search of his home on the basis that it violated the protections afforded by the Fourth Amendment; namely, the right to be secure in his own home. Appellant cited legal authority and then set forth the factual basis for challenging the search. Thus, appellant's motion sufficiently puts the prosecution on notice of the basis for his challenge. Moreover, appellant requested an oral hearing, a prerequisite this court has previously determined to be necessary. See University Heights v. Morris (Apr. 18, 1996), Cuyahoga App. No. 69493, unreported at 4-5. Having satisfied the need for 1This rule provides, in part: An application to the court for an order shall be by motion. A motion *** shall be in writing *** . It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may be supported by an affidavit. -5- particularity, we conclude that the court erred in not holding an evidentiary hearing on appellant's motion to suppress. On remand, the burden shifts to the City as to whether probable cause existed for the search. Accordingly, appellant's sole assignment of error is well taken and is sustained. -6- 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 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. DYKE, P.J. and MICHAEL J. CORRIGAN, J., CONCUR. JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .