[Cite as State v. Lam , 2013-Ohio-505.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25336

v. : T.C. NO. 11CR4263 TIMOTHY LAM : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 15th day of February , 2013.

. . . . . . . . . . MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee CANDI S. RAMBO, Atty. Reg. No. 0076627, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Timothy Lam appeals from a judgment of the Montgomery County Court of Common Pleas, which found him guilty of possession of heroin on his no contest2 plea after overruling his motion to suppress eviden ce. He was sentenced to twelve months of imprisonment. {¶ 2} For the following reasons, the judgment of the trial court will be

affirmed. {¶ 3} The events which led to Lam’s arrest began when Dayton police officers approached his brother, Jeffrey Lam (“Jeffrey”), regarding a traffic viol ation. On the evening of December 12, 2011, Officers Michael Saylors and Randy Beane observed Jeffrey driving a gold Intrigue near the intersection of H odapp and Lorain Avenues. The officers were familiar with Jeffrey from “a lot of history,” a nd they knew that Jeffrey and his brother, Timothy, had possessed firear ms and drugs during past contacts with the police. Additionally, Beane knew that Jeffrey had fled from police two weeks earlier in the same car, because Beane had participated in the s earch for the vehicle. The officers knew from prior interactions that Jeffrey’s driver’s licen se had been suspended several times, and Beane knew from running Jeffrey’s license two w eeks earlier that Jeffrey had been under suspension at that time. {¶ 4} Based on Jeffrey’s history of fleeing from the police, the officers’ desire to avoid a chase, and the officers’ knowledge that they were in the vicinity of Jeffrey’s home, which was located at 645 Creighton Avenue, th e officers decided to follow Jeffrey rather than immediately initiate a stop for driving wit hout a license and any other pending charges related to his flight from police two weeks earlie r. (The officers did not know, at that time, whether there were any outstanding warrants for Jeffrey.) While following him, they observed a turn signal violation. When Je ffrey parked behind 645 Creighton, the officers3 activated their emergency lights. {¶ 5} As soon as the lights were activate d, both doors of the In trigue “flew open,” and Jeffrey and another individual (James Farr) fled on foot. The officers pursued Jeffrey and Farr. Saylors tackled and detained Farr. After a brief chase through the neighborhood, Beane saw Timothy Lam (Jeffrey’s brother) on the porch of 645 Creighton and saw Jeffrey run from between the neighboring houses into 645 Creighton. Both men went into the

house and closed the door behind them. The o fficers attempted, unsuccessfully, to kick in the door. Although the officers could see indi viduals inside the house, no one responded to their commands to open the door. The officers retrieved a battering ram from their cruiser and, using it, entered the house. Add itional backup had arri ved by this time. {¶ 6} Upon entering the house, Beane or dered Jeffrey and another man to the floor at gunpoint. Beane heard an upstairs toilet flushing, and another officer on the perimeter of the house radioe d that he heard a person or persons moving around on the

second floor of the house. Officers conducted a sweep of the house for their safety. They encountered Timothy Lam coming down the step s from the second floor, and two other men were found upstairs, including one who was hiding. {¶ 7} During their sweep of the house, officers observed crack cocaine in a bedroom, marijuana under a bed a nd on a stairwell, and heroin in the kitchen, all in plain view. While detaining the men found in the house, the officers called for a drug unit and

obtained a search wa rrant for the house. 1 One of the rooms had a note with Timothy Lam’s

1 Officer Beane testified that the Lams’ mother, Cheryl Fitswater, who “rents the house,” gave them permission to search the house, but the State did not rely on this alleged consent at the suppression hearing.4 name on it taped to the door, a nd inside the room a pill bo ttle and checkbook listed Timothy Lam’s name. In searching th is bedroom pursuant to the warrant, Detective Jason Barnes found crack cocaine in a nightstand drawer. Timothy Lam was placed under arrest for possession and obstruction of justice (for not ope ning the door on the officers’ orders), and he was searched. The search revealed a bag of heroin tied to the drawstring of the shorts Lam was wearing under his jeans. {¶ 8} Lam entered a not guilty plea and file d a motion to suppress, in which he argued that the police lacked any legal basi s to enter his home without a warrant and to search his home and his person. {¶ 9} After a hearing, the court agreed, in principle, with Lam’s argument that a warrantless entry into a house “may not be made for [a] minor misdemeanor.” Further, the court cautioned that “courts should carefully a ssess circumstances when obstructing official business is sought to be used for warrantless entry into a premises.” The court observed that, in some circumstances, such as an obstruction charge rooted in the failure to open a door to officers attempting to serve a minor misdemeanor citation, it might find that police entry into a home was unlawful. Under the fact s of this case, however, the court concluded that a “wholly separate criminal act” from the turn signal violati on occurred when Jeffrey “challenged the officer’s authority to lawfully cite a citizen found outsi de the sanctity of his home” by fleeing, and that this separate act justified the pursuit into the home. The trial court’s decision did not refer to the officers’ alleged belief that Jeffrey had been driving

without a valid license. The trial cour t overruled the motion to suppress. {¶ 10} Lam subsequently entered a no contes t plea to possession of heroin in an5 amount greater than one gram but less than five grams, a felony of the fourth degree. He was found guilty and sentenced to twel ve months of imprisonment. {¶ 11} Lam raises one assign ment of error on appeal.

The Trial Court Erred in Overrulin g Appellant’s Motion to Suppress. {¶ 12} Lam contends that the evidence ag ainst him should have been suppressed because no exigent circumstances justified the police officers’ entry into his home and because the officers lacked probable cause to arrest him. {¶ 13} The Fourth Amendment to the Un ited States Constitution and Section 14, Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures. Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Pressly , 2d Dist. Montgomery No. 24852, 2012-Ohio- 4083, ¶ 18. “Under applicable legal standards, the State has the burden of showin g the validity of a warrantless search, because warrantless searches are ‘per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions.’” State v. Hilton , 2d Dist. Champaign No. 08-CA-18, 2009-Ohio-5744, ¶ 21-22, citing Xenia v. Wallace , 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). Exigent circumst ances are a well-established exception

to the Fourth Amendment' s warrant requirement. State v. Andrews , 177 Ohio App.3d 593, 2008-Ohio-3993, 895 N.E.2d 585,¶ 23 (11th Dist.); State v. Berry , 167 Ohio App.3d 206, 2006-Ohio-3035, 854 N.E.2d 558,¶ 12 (2d Dist.). {¶ 14} “The United States Supreme Court has held that an exigent circumstance is (1) an emergency situation which arises when a person in the home is in need of ‘immediate

aid’ or there is a life-threatenin g situation, or (2) a ‘hot pursuit.’ Mincey v. Arizona , 4376 U.S. 385, 392-393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); State v. Bowe , 52 Ohio App.3d 112, 113, 557 N.E.2d 139 (9th Dist.1988).” State v. Bell , 2d Dist. Greene No. 2012 CA 15,

2012-Ohio-4853. See also State v. Akron Airport Post No. 8975 , 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985) (holding that hot pursuit a nd probable cause to search accompanied by the presence of exigent circumstances have each been recognized as ex ceptions to the search warrant requirement). In Lam’s case, the State did not assert that there had been a life-threatening situation, a potential for th e destruction of evidence, or any other “emergency situation” constituting an exigent circumstance; it argued that the officers had been justified in entering the house because they did so in hot pursuit of Jeffrey. {¶ 15} Lam’s argument emphasizes that Jeffrey’s turn signal violation was a minor misdemeanor, “the most minor offense possibl e” and subject only to a fine. Relying on

Welsh v. Wisconsin , 466 U.S. 740, 754, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) and other cases, he asserts that “the exigent circumstance premised upon flight from a

minor-misdemeanor offense is insuffici ent to overcome the presumption of

unreasonableness” that attaches to a warrantle ss entry. Welsh’s home was entered without a warrant and he was arrested for DWI but, at the time, this was a “non-criminal civil forfeiture offense.” The entry was based on th e argument that Wels h’s blood-alcohol level might have dissipated had the officers waited for a warrant. There was no “hot pursuit” argument in that case. {¶ 16} Lam also relies on Dorman v. United States , 435 F.2d 385 (C.A.D.C.1970)

and State v. Bowe , 52 Ohio App.3d 112, 557 N.E.2d 139 (9th Dist.1988), which set forth factors to be considered in determining whether there was “an immediate major crisis7 mandating a warrantless entry of a home.” Bowe at 114. But these cases addressed emergency situations, not hot pursuit. In neither Dorman nor Bowe did officers chase suspects into the homes they entered; in th ese cases, both of which involved robberies, the locations that were searched were identified through a probation report that was left at the scene by one of the suspects ( Dorman ) and through tracing the license plate of a vehicle observed at the scene ( Bowe ). {¶ 17} In United States v. Santana , 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the Supreme Court held th at a suspect “may not defeat an arrest which has been set in motion in a public place * * * by the expedient of escaping to a private place,” including a home, notwithstanding the general prohibition ag ainst warrantless entry into a residence.

Id. at 43. The suspect in Santana was believed to have committed a felony, and the police pursued her from a public place (her porch), at which they first confronted her, into her home. The U.S. Supreme Court held that the police, who had probable cause to arrest the defendant, could not be thwarted in that effort by the defe ndant’s retreat into her house. {¶ 18} In Middletown v. Flinchum , 95 Ohio St.3d 43, 2002-Ohio-1625, 765 N.E.2d 330, the Supreme Court of Ohio, relying on Santana , extended the hot pursuit exception to the search warrant requirement to misdemeanor offenses, stating, “we see no reason to differentiate appellant’s offense a nd give him a free pass merely because he was not charged with a more serious crime. The basic fact remains that appellant fled from police who were in hot pursuit of him and who had identified themselves as police officers.”

Id . at 45. 2

2 The court did not rely on the flight itself as an additional basis or offense justifying the pursuit.[Cite as State v. Lam , 2013-Ohio-505.] {¶ 19} As in Jeffrey Lam’s case, the offense for which the police sought to arrest

the defendant in Flinchum was a minor misdemeanor (reckle ss operation). “The crux of [Flinchum’s] claim [was] that police could not enter his home to arrest him without a warrant where he had committed only a traffic in fraction, which is a mi nor misdemeanor.”

Middletown v. Flinchum , 12th Dist. Butler No. CA99-11-193, 2000 WL 1843199, *2 (Dec. 18, 2000). Although Flinchum was ultimately charged with dr iving under the influence as well as reckless driving, the appellate court’s opinion expressly stated that the arresting officer “was not aware of facts that would have shown appellant was intoxicated until the officer observed appellant inside his home during his arrest.” Id . at *4, fn.5. Thus, although the supreme court in Flinchum refers to fleeing into a house to avoid arrest , the basis for the pursuit in Flinchum was a traffic infraction (as was the case with the pursuit of Jeffrey Lam), which is typically not an arrestable offense. 3 On the authority of Flinchum , we must conclude that the po lice were lawfully inside the Lams’ house when they observed the drugs which formed the ba sis for the search warrant.

3 We note that the appellate court in Flinchum made a distinction among misdemeanor offenses, for purposes of warrantless entry, based on whether the offense was “minor” or “ serious,” which was determined by whether it was “a jailable offense.” The supreme court, however, did not mention these distinctions in affirming the appellate court. {¶ 20} The supreme court’s opinion in Flinchum contains a strongly-worded dissent in which Justice Pfeifer distinguishes Santana from Flinchum, based on the

seriousness of the offense and th e “realistic expectation” in Santana that delay in executing a

search would result in the destruction of ev idence (heroin and marked money), a concern which was not present in Flinchum . It also emphasizes that “the circumstances of a particular situation must be grave * * * to merit a lifting of [Fourth Amendment]9 protections.” Flinchum , 95 Ohio St.3d at 47 (Pfeifer, J., dissenting), citing Welsh , 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (involving exigent circumstances). Justice Pfeifer observed that, when warra ntless arrests in the home are at issue, hesitation in finding a basis for acting without a warra nt “is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. * * * When the government’s interest is only to arrest for a minor offe nse, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to ma ke such arrests only with a warrant issued upon probable cause by a neutral and detach ed magistrate.” Id ., citing

Welsh at 750. The dissent concluded that the g overnment had not succe ssfully rebutted the presumption of unreasonableness in Flinchum, because only a minor traffic offense was at issue, and that the arrest of “a mere tire spinner” did not justify the chipping away of a well-established Fourth Amendment right. {¶ 21} We share the concerns expressed in the Flinchum dissent. Although we are bound by supreme court precedent, we have reservations about pe rmitting police officers to chase a suspect who is known to have co mmitted only a minor traffic violation and to forcibly enter into his house, in the absen ce of exigent circumstances. This is a circumstance where a potential traffic violation developed into a chase of the driver, which led to the forcible entry of that person’s home, which turned into a protective sweep of the home, which resulted in the plain view of contraband, which genera ted a search warrant,

which resulted in the arrest of a second person, which resulted in the discovery of drugs. This may be the unusual situati on where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule.10 {¶ 22} We see no reason why, in Jeffrey Lam’s case, the officers could not have waited outside the house while they obtained a search warrant or ch ecked for outstanding warrants for Jeffrey. In Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsen sual entry into a suspect’s house in order to make a routine felony arrest. As discussed above, Payton and other decisions have recognized an exception for “exigent circumstances.” Id. at 1386. Similarly, R.C. 2935.12 only permits entry by force to make a warrantless arrest if exigent circumstances exist. State v. Boyd , 2d Dist. Montgomery No. 13425, 1993 WL 169104 (May 21, 1993). {¶ 23} However, the principle from which any exceptions to the warrant requirement emanate is reflected in the oft-quoted remark s of William Pitt in 1763: "The poorest man may in his cottage bid defiance to a ll the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, the storm may enter; the rain may enter; but the King of England cannot enter – all hi s force dares not cross the threshold of the

ruined tenement!” Payton at 1388, fn. 54, citing Miller v. United States , 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Indeed, President John Adams traced the origins of our independence from England to James Otis ’s 1791 argument against British writs of assistance, where he declared th at a “man’s house is his castle.” United States v. Verdugo-Urquidez , 494 U.S. 259, 110 S.Ct. 1056, 1072, 108 L.Ed.2d 222, fn. 8 (1990) (Brennan, J., dissenting). It may be that Jeffrey would have temporarily “defeated” his citation for the traffic offense by “escaping to a private place,” but weighing the immediate serving of a citation for a non- jailable minor misdemeanor agai nst the Fourth Amendment’s11 protection of the home, we would make what should be the obvious choice. {¶ 24} However, the facts surrounding the chase of Jeffrey Lam are not legally distinguishable from the facts in Flinchum . Thus, we are obligated to follow our understanding of the majority’s opinion in Flinchum , as the trial court did, and to conclude that the police officers lawfully entered into the house. We hope that the Ohio Supreme

Court will reconsider or clarify its position. {¶ 25} Once inside the house, the officers h eard a toilet flushing upstairs, and an officer on the perimeter of the house reported hearing movement upstairs. The officers on

the scene were aware that the Lams had been known to possess drugs and firearms in the past and had tried to run over a police officer w ith a vehicle. In this situation, they had legitimate concerns for their sa fety, and they were justified in conducting a protective sweep

of the house. See Maryland v. Buie , 494 U.S. 325, 333, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (finding a legitimate “interest of the officer s in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested, is not harboring other persons who are dangerous and who c ould unexpectedly launch an attack.”). 4

4 Upon observing drugs in the house and hearing a toilet flush upstairs, exigent circumstances – the fear of the destruction of evidence – may also have justified the search. {¶ 26} During the protective sweep, officers observed heroin in the kitchen in a trash can with no lid, crack cocaine in one of the bedrooms, marijuana under a bed (while looking for anyone who might be hiding), a nd marijuana on the stairs. The plain view exception to the warrant requirement applies in situations where (1) the original intrusion by which the police viewed the item was lawful; (2) the discovery of the evidence was12 inadvertent; and (3) the incriminating nature of the evidence was immediately apparent.

State v. Williams , 55 Ohio St.2d 82, 85, 377 N.E.2d 1013 (1978), citing Coolidge v. New Hampshire , 403 U.S. 443, 446, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The plain view doctrine applied under the facts of this case, and the officers properly relied on the drugs observed in plain view to obtain a search warrant for the house. {¶ 27} Lam also argues that the crack cocai ne was found in his nightstand drawer during the officers’ protective sweep and that they used this evidence “to justify his arrest and subsequent search of his person,” which led to the discove ry of the heroin tied to the drawstring of his pants. He claims that, b ecause a person could not fit in his drawer, the officers should not have been looking there dur ing the protective swee p, and his arrest was improper. {¶ 28} Lam’s argument is refuted by th e evidence offered at the suppression hearing. Detective Jason Barnes testified that the crack cocaine in Lam’s nightstand was found when Barnes conducted his search pursuan t to the search warrant. No evidence was presented that the nightstand was searched dur ing the protective sweep. Thus, Lam’s arrest pursuant to the discovery of drugs in his r oom, and the search that followed, were not improper. {¶ 29} The trial court did not err in overruling Lam’s motion to suppress. {¶ 30} The assignment of error is overruled. {¶ 31} The judgment of the trial court will be affirmed.

. . . . . . . . . . DONOVAN, J., concurs in judgment only.13 FAIN, J., concurring in the judgment: {¶ 32} I write separately because I do not share in the criticism of the result in

Middletown v. Flinchum , 93 Ohio St.3d 43, 2002-Ohio-1625, 765 N.E.2d 330. The defendant in that case, like Jeffrey Lam in this case, was complicit in the escalation of the events that began with the police having in itiated a traffic stop. Both men could have stopped and waited for the police to issue a citati on. Instead, they fled. In my view, it was not unreasonable, in either case, for the police to pursue the fleeing suspect, even when that resulted in a warrantless entry into a residence. {¶ 33} In all other respects, I concur in Judge Froelich’s opinion for this Court.

. . . . . . . . . . Copies mailed to: Michele D. Phipps Candi S. Rambo Hon. Gregory F. Singer