[Cite as State v. Levengood, 2016-Ohio-1340.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellant : Hon. W. Scott Gwin, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 2015AP090053 

 : 

GALEN T. LEVENGOOD : 

 : 

 : 

 Defendant-Appellee : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County 

Court of Common Pleas, Case No. 2015 

CR 02 0039 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: March 22, 2016 

APPEARANCES: 

For Plaintiff-Appellant: For Defendant-Appellee: 

 

TUSCARAWAS CO. PROSECUTOR MARK PERLAKY 

MICHAEL J. ERNEST TUSC. CO. PUBLIC DEFENDER 

125 E. High Ave. 153 N. Broadway 

New Philadelphia, OH 44663 New Philadelphia, OH 44663 

 
Tuscarawas County, Case No. 2015AP090053 

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Delaney, J. 

{¶1} Appellant state of Ohio appeals from the September 11, 2015 Judgment 

Entry of the Tuscarawas County Court of Common Pleas granting the motion to suppress 

of appellee Galen T. Levengood. 

FACTS AND PROCEDURAL HISTORY 

{¶2} The following facts are adduced from the testimony of Officer Wayne Clark, 

the sole witness at the suppression hearing held July 17, 2015. 

{¶3} On December 20, 2014, around 11:30 a.m., Sierra Burger returned from a 

trip to Drug Mart to find appellee Galen Levengood unresponsive on the floor of his 

apartment. Burger called 911 and New Philadelphia police and E.M.S. responded. 

{¶4} Ptl. Clark arrived to find squad members already working on the 

unresponsive male laying on the floor of the apartment’s kitchen. Clark did not 

immediately identify the man and did not know the reason why the man was “in full arrest.” 

From his entry point into the apartment, Clark could see into the kitchen but not into the 

bedroom. Clark testified, “At that point I decided to do a protective sweep of the residence 

for our safety and for the safety of others.” 

{¶5} Clark testified his purpose in performing the protective sweep was twofold, 

to determine whether anyone else was in the apartment 1) who might pose a threat to 

officers and E.M.S. and 2) who might be injured. He proceeded to look anywhere in the 

apartment a person might be found. 

{¶6} In addition to the E.M.S. squad, also present in the apartment were Sierra 

Burger and James Wilson. Burger let Clark into the apartment and Wilson was in the 

living room watching television. Sgt. Williamson arrived on the scene shortly after Clark. 
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During the protective sweep, Clark and Williamson went in opposite directions, with Clark 

entering the apartment bedroom. He observed a brown powdered substance on a 

counter in the bedroom with needles nearby. Believing the substance to be heroin, Clark 

seized it. The substance was submitted to B.C.I. and tested positive as heroin. 

{¶7} After the protective sweep, Clark learned from E.M.S. that appellee was 

unresponsive due to a heroin overdose and medics administered Narcan to him. 

Appellee was transported to a hospital from the scene. 

{¶8} A landlord arrived while police were present and stated the apartment 

belonged to appellee Galen Levengood. 

{¶9} Appellant was charged by indictment with one count of possession of less 

than one gram of heroin pursuant to R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth 

degree. Appellant entered a plea of not guilty and filed a motion to suppress evidence 

stemming from the protective sweep of his apartment, arguing the medical emergency 

did not give officers authority to enter the bedroom where they observed the heroin. The 

matter proceeded to suppression hearing on July 17, 2015, and the parties were 

permitted to file post-hearing memoranda. By judgment entry dated September 11, 2015, 

the trial court granted appellee’s motion to suppress and excluded the heroin found by 

police. 

{¶10} On September 16, 2015, appellant filed a Certification by Prosecuting 

Attorney pursuant to Ohio Crim.R. 12(K) and appealed from the trial court’s judgment 

entry of September 11, 2015. 
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{¶11} Appellant raises two assignments of error: 

ASSIGNMENTS OF ERROR 

{¶12} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO 

SUPPRESS EVIDENCE AS MEMBERS OF THE NEW PHILADELPHIA POLICE 

DEPARTMENT WERE PERMITTED TO CONDUCT A PROTECTIVE SWEEP OF 

APPELLEE’S RESIDENCE.” 

{¶13} “II. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO 

SUPPRESS EVIDENCE AS MEMBERS OF THE NEW PHILADEPHIA POLICE 

DEPARTMENT WERE PERMITTED TO SEIZE THE HEROIN LOCATED IN PLAIN 

VIEW IN THE APPELLE’S RESIDENCE.” 

ANALYSIS 

I., II.

{¶14} Appellant’s two assignments of error are related and will be considered 

together. Appellant argues the trial court erred in sustaining the motion to suppress. We 

disagree. 

Standard of Review 

{¶15} Appellate review of a trial court’s decision to deny a motion to suppress 

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713 

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role 

of trier of fact and, as such, is in the best position to resolve questions of fact and to 

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are 

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145, 
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675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must 

independently determine as a matter of law, without deference to the trial court’s 

conclusion, whether the trial court’s decision meets the applicable legal standard. State 

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other 

grounds. 

{¶16} There are three methods of challenging a trial court’s ruling on a motion to 

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In 

reviewing a challenge of this nature, an appellate court must determine whether the trial 

court’s findings of fact are against the manifest weight of the evidence. See, State v. 

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed 

to apply the appropriate test or correct law to the findings of fact. In that case, an appellate 

court can reverse the trial court for committing an error of law. See, Williams, supra. 

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final 

issues raised in a motion to suppress. When reviewing this type of claim, an appellate 

court must independently determine, without deference to the trial court’s conclusion, 

whether the facts meet the appropriate legal standard in any given case. State v. Curry, 

95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994). 

{¶17} In this case, appellant argues the trial court incorrectly decided the ultimate 

issue raised by the motion to suppress. Our standard of review is thus de novo. 

{¶18} The parties agree that police had authority to enter appellee’s apartment 

under the medical-emergency exception to the warrant requirement. The issue posed by 

this case, however, is whether the circumstances permitted Officer Clark to conduct a 
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protective sweep of the entire apartment. Upon our review of the record, we find 

insufficient evidence of articulable facts which, taken together with the rational inferences 

from those facts, would warrant a reasonably prudent officer in believing that the area to 

be swept harbors an individual posing a danger to officers and emergency personnel. 

Entry is Justified 

{¶19} The Fourth Amendment to the United States Constitution prohibits 

warrantless searches and seizures, rendering them per se unreasonable unless an 

exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967). The 

exigent-circumstances exception has been recognized in situations of hot pursuit of a 

fleeing felon, imminent destruction of evidence, the need to prevent a suspect's escape, 

and risk of danger to the police and others. United States v. Rohrig, 98 F.3d 1506, 1515 

(6th Cir.1996). 

{¶20} Another subset of the exigent-circumstances category is the emergency-aid 

exception. Courts recognize a community-caretaking/emergency-aid exception to the 

Fourth Amendment warrant requirement is necessary to allow police to respond to 

emergency situations where life or limb is in jeopardy. State v. Dunn, 131 Ohio St.3d 325, 

2012–Ohio–1008, 964 N.E.2d 1037, ¶ 21. In dealing with this exception, “[t]he key issue 

is whether the officers ‘had reasonable grounds to believe that some kind of emergency 

existed * * *. The officer must be able to point to specific and articulable facts, which, 

taken with rational inferences from those facts, reasonably warrant intrusion into 

protected areas.’” State v. White, 175 Ohio App.3d 302, 2008–Ohio–657, 886 N.E.2d 

904, ¶ 17 (9th Dist.). The emergency justifies the warrantless entry, and, while lawfully 

present, the police may seize evidence in plain view. See Thompson v. Louisiana, 469 
Tuscarawas County, Case No. 2015AP090053 

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U.S. 17, 10 S.Ct. 409, 83 L.Ed.2d 246 (1984); State v. Buzzard, 112 Ohio St.3d 451, 860 

N.E.2d 1006, 2007–Ohio–373, ¶ 16. 

{¶21} In this case, Officer Clark had reasonable grounds to believe an emergency 

existed, justifying his entry into the apartment. See, Thacker v. City of Columbus, 328 

F.3d 244, 254 (6th Cir.2003) [the uncertainty of the situation, justified entry to secure the 

safety of the police, paramedics, and other people possibly inside the home]. The 911 

call regarding an unresponsive male is a typical medical emergency justifying the officers’ 

entry into the apartment. 

Protective Sweep Not Justified on this Record 

{¶22} Warrantless entry based upon exigent circumstances is not without 

limitation. A warrantless search must be “strictly circumscribed by the exigencies which 

justify its initiation.” Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 

Once inside, the question becomes whether the “movements of the officers were 

conservative, prudent and reasonable.” See, State v. Applegate, 68 Ohio St.3d 348, 349-

50, 1994-Ohio-356, 626 N.E.2d 942 (1994). Appellant argues the officer’s actions in 

entering the bedroom are justified as a “protective sweep.” 

{¶23} The question remains whether Clark’s protective sweep of the apartment, 

including the bedroom where the heroin was found, is justified by the circumstances of 

an unresponsive male on the floor in the kitchen. The “protective sweep” exception to the 

warrant requirement arose from the decision of the U.S. Supreme Court in Maryland v. 

Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), holding that the Fourth 

Amendment permits a properly-limited protective sweep when the searching officer 

possesses a reasonable belief based on specific and articulable facts that the area to be 
Tuscarawas County, Case No. 2015AP090053 

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swept harbors an individual posing a danger to those on the arrest scene. The Court 

cautioned that: 

 * * * *. We also hold that as an incident to the arrest the officers 

could, as a precautionary matter and without probable cause or 

reasonable suspicion, look in closets and other spaces immediately 

adjoining the place of arrest from which an attack could be 

immediately launched. Beyond that, however, we hold that there 

must be articulable facts which, taken together with the rational 

inferences from those facts, would warrant a reasonably prudent 

officer in believing that the area to be swept harbors an individual 

posing a danger to those on the arrest scene. This is no more and 

no less than was required in Terry [392 U.S. 1, 88 S.Ct. 1868, 20 

L.Ed.2d 889 (1968)] and Long [463 U.S. 1032, 103 S.Ct. 3469, 77 

L.Ed.2d 1201 (1983)], and as in those cases, we think this balance 

is the proper one. 

 Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 

L.Ed.2d 276 (1990). 

{¶24} The “protective sweep” is further limited to a “cursory inspection of those 

spaces where a person may be found” and “lasts no longer than is necessary to dispel 

the reasonable suspicion of danger and in any event no longer than it takes to complete 

the arrest and depart the premises.” Buie, 494 U.S. at 336. 

{¶25} The question is whether the circumstances support an officer’s belief that 

others might be present, a question which turns upon the facts of each case. In State v. 
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Lyons, the defendant was arrested in connection with a major narcotics operation; other 

suspects were known to be at large; the defendant appeared to be under the influence of 

drugs when he came to the door; he failed to respond when officers asked if anyone else 

was present; it appeared a party had recently taken place; and police observed several 

firearms. State v. Lyons, 83 Ohio App.3d 525, 615 N.E.2d 310 (2nd Dist.1992). The 

appellate court found the circumstances presented a sufficient and articulable suspicion 

necessary for the protective sweep that officers performed which yielded contraband 

discovered in an upstairs closet. Id. at 534. 

{¶26} The same court distinguished circumstances in another case in which a 

defendant who was reported to have a firearm and to be suicidal was arrested on a 

domestic violence charge after an hours-long standoff in which police had observed the 

residence. State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960 (2nd 

Dist.). An officer testified the protective sweep was performed to “check for the safety 

and welfare of any other individuals that may have been involved or been inside the house 

because of the possible possession of a weapon, the threat of self-harm to defendant, 

and the violence of the incident that occurred earlier against his girlfriend.” Id. at ¶ 10. 

The court found the officers lacked a reasonable and articulable suspicion that other 

persons who might pose a danger to the officers remained inside the house: 

 The protective-sweep exception to the warrant requirement in 

Buie and Lyons requires some positive indication that another 

person or persons remain in the residential premises where a subject 

is arrested and that they pose a threat to the safety of officers or 

others. Lacking that indication, there is not a need to act sufficient to 
Tuscarawas County, Case No. 2015AP090053 

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avoid the requirement of a prior warrant if the house is to be searched 

after a defendant's arrest there. Mere suspicion that a weapon 

remains inside is insufficient. Likewise, not knowing whether anyone 

else is there is an insufficient pretext because the need for protection 

necessarily implies that another person or persons are there. Faced 

with such doubts, and absent any reason to believe that other 

persons may be inside, officers must obtain a warrant before they 

conduct a search of a defendant's house after a defendant's arrest 

there. 

 State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 

N.E.2d 960, ¶ 46 (2nd Dist.). 

{¶27} We find the rationale of Sharpe to be applicable here. In case sub judice, 

Clark had no positive indication others might be present in appellee’s apartment, and the 

fact that he didn’t know whether anyone else was present is not a sufficient pretext to 

sweep the entire apartment. See, State v. Mickey, 8th Dist. Cuyahoga No. 82844, 2003-

Ohio-6878, ¶ 18 [no persuasive evidence of any information that area to be swept 

harbored an individual who posed a threat when officer testified he had no knowledge of 

who lived in the apartment or who might be present]; State v. Walters, 9th Dist. Summit 

No. 23795, 2008-Ohio-1466, ¶ 13 [protective sweep not justified when no officer testified 

anything observed in home suggested another person was present]; State v. White, 175 

Ohio App.3d 302, 2008-Ohio-657, 886 N.E.2d 904, ¶ 24 (9th Dist.) [record does not 

contain evidence that the officers had any reason to believe that anyone other than 

defendant was inside the house]; State v. Martin, 8th Dist. Cuyahoga No. 82026, 2003-
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Ohio-4058, ¶ 13 [only officer to testify admitted there was nothing to suggest any threat 

of danger when he searched the upstairs bedroom]; State v. McLemore, 197 Ohio App.3d 

726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 13 (2nd Dist.) [“not knowing whether anyone else 

was inside the residence is an insufficient pretext for a protective sweep to learn whether 

anyone is in fact inside”]. 

{¶28} Appellant has separately assigned as error the issue of whether the heroin 

seized was in plain view. The plain view doctrine only applies if officers were lawfully 

present in order to see the contraband. Under the plain view exception to the search 

warrant requirement, police may seize evidence in plain view during a lawful search if (1) 

the seizing officer is lawfully present at the place from which the evidence can be plainly 

viewed; (2) the seizing officer has a right of access to the object itself; and (3) the object's 

incriminating character is immediately apparent. State v. Justice, 5th Dist. Fairfield No. 

10 CA 41, 2011-Ohio-4004, ¶ 34, citing Horton v. California, 496 U.S. 128, 136–37 (1990). 

Because the protective sweep was unlawful, law enforcement was not lawfully present in 

the bedroom to view the heroin. Thus, the seizure of the heroin is not protected under the 

plain view doctrine. State v. Greene, 10th Dist. Franklin No. 96APA11-1591, 1997 WL 

358810, *3 (June 30, 1997). 

{¶29} We are charged with independently determining, without deference to the 

trial court's conclusion, whether the facts before us on the record meet the appropriate 

legal standard. State v. Fisher, 5th Dist. Fairfield No. 13CA35, 2014-Ohio-3029, ¶ 44, 

citing State v. Curry, 95 Ohio App.3d 93, 96, 620 N.E.2d 906 (8th Dist.1994). We must 

conclude the facts in this record do not support the protective sweep. We concur with the 

trial court's determination that law enforcement under these circumstances exceeded its 
Tuscarawas County, Case No. 2015AP090053 

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authority to conduct a protective sweep of the entire apartment. The warrantless entry 

into the bedroom is not supported as a protected sweep and thus the officer was not 

lawfully present when he observed the heroin in the bedroom. The trial court properly 

granted appellee’s motion to suppress. 

CONCLUSION 

{¶30} Appellant’s two assignments of error are overruled and the judgment of the 

Tuscarawas County Court of Common Pleas is affirmed. 

By: Delaney, J. and 

Farmer, P.J. 

Gwin, J., concur.