[Cite as State v. Desarro , 2020-Ohio-6815.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT COLUMBIAN A COUNTY

STATE OF OHIO,
Plaintiff-Appellee,

v. JOSEPH DESARRO, II,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 19 CO 0042

Criminal Appeal from the East Liverpool Municipal Court of Columbiana County, Ohio Case No. 19CRB539

BEFORE: Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Jud g es.

JUDGMENT: Reversed and Remanded

A tty. Robert Herron , Prosecutor and Atty. Don Humphrey Jr., Assistant Prosecutor, Columbiana County Courthouse, 105 South Market Street, 3 rd Floor, Lisbon, Ohio 44432, for Plaintiff-Appellee and– 2 –

Case No. 19 CO 0042 A tty. Charles Amato , Amato Law Office, L.P.A., 420 Broadway Avenue, Wellsville, Oh io 43968, and Atty. Joseph Phillips, Phillips Law, 1719 Crooks Road, Suite 4, Royal Oak, Michi g an 48067, for Defendant-Appellant.

Dated: December 16, 2020

Donofrio, J.
{¶1} Defendant-appellant, Joseph DeSarro, II, appeals from an East Liverpool Municipal Court judgment denying his motion to suppress evidenc e. {¶2} On March 29, 2019, East Liverpool Police Department Patrolman Christopher Green decided to conduct surveillance on a property (904 Avondale) due to his allegations that the department had received numerous compl aints of drug activity at
the location. {¶3} Upon arrival at the property, Ptl. Green and his partner parke d their cruiser directly behind 904 Avondale. (Tr. 9). Ptl. Green then walked through the backyard of the property, noticing a door and a window located on the south side of the property. (Tr. 9). The window was partially obstructed by the kitchen refrige rator and a curtain. (Tr. 13). Ptl. Green began conducting surveillance through the wind ow, between the obstruction of the refrigerator and the curtain. (Tr. 13). Pt l. Green observed two male individuals, one of which was appellant, inside of the residenc e. (Tr. 13). Ptl. Green noticed appellant brushing his teeth and saw a firearm in the w aistband of appellant’s pants. (Tr. 58). At this point, Ptl. Green decided to pull ou t his cellphone and videotape what he was observing. (Tr. 59). Ptl. Green then called for b ackup, which arrived and surrounded the property. (Tr. 37). {¶4} Through dispatch, Ptl. Green learned that appellant was a conv icted felon. (Tr. 37). Ptl. Green and the other officers at the scene attem pted to make contact with the individuals inside of the residence by knocking on the fron t and side doors and were denied entry into the home. (Tr. 17). Appellant denied any wr ongdoing and said he would not open the door. (Tr. 17). At this point appellant was runn ing from window to window of the home, in a taunting manner, continuously telling officer s that there was nothing illegal going on and that they could not come in. (Tr. 18). T his went on for several minutes. (Tr. 18). After they were denied entry, they contact ed the Columbiana County– 3 –

Case No. 19 CO 0042 Prosecutor’s Office regarding the situation. (Tr. 19). No pro secutor was available at the time. (Tr. 19). At this point, the officers forced their way into the home by kicking down the door and they placed both individuals under arrest. (Tr. 1 9). Ptl. Green searched appellant’s person and discovered marijuana and brass knuckles. (Tr. 20). The officers
on the scene then obtained a search warrant and searched the en tire residence. (Tr. 20). {¶5} Appellant was then arrested and charged with obstructing offic ial business, in violation of R.C. 2921.31 and possession of marijuana, in vi olation of City of East Liverpool Ordinance 513.03. {¶6} On April 1, 2019, appellant pleaded not guilty to both charges and subsequently filed a motion to suppress evidence. After briefi ng from both sides, and a suppression hearing, the trial court denied the motion to suppr ess on September 3, 2019. On October 2, 2019, appellant pleaded no contest to the charges and was sentenced that same day to 30 days in jail and a driver’s license suspension o f 180 days. Appellant timely filed his notice of appeal on October 11, 2019. {¶7} Appellant now raises a single assignment of error. His assign ment of error
states:

THE TRIAL COURT ABUSED IT’S[sic] DISCRETION BY DENYING APPELLANT’S JUNE 13, 2019 MOTION TO SUPPRESS EVIDENCE.

{¶8} Here, appellant argues that his constitutional rights were vio lated by the search and seizure of evidence. He argues that there were no e xigent circumstances that would have permitted the search and seizure. He posits th at due to the unconstitutional search the trial court should have granted his motion to suppress. Plaintiff-appellee, the State of Ohio, argues the opposite. Th e state believes that due to the weapon seen an exigent circumstance existed to authorize th e search and seizure. {¶9} Our standard of review with respect to a motion to suppress is first limited to determining whether the trial court's findings are supported by competent, credible
evidence. State v. Winand , 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th Dist.1996), citing Tallmadge v. McCoy , 96 Ohio App.3d 604, 608, 645 N.E.2d 802 (9th Dist.1994). Such a standard of review is appropriate as, “[i]n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to– 4 –

Case No. 19 CO 0042 resolve questions of fact and evaluate the credibility of witne sses.” State v. Venham , 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). An appel late court accepts the trial court's factual findings and relies upon the trial court' s ability to assess the witness's credibility, but independently determines, without deference to the trial court, whether the trial court applied the appropriate legal standard. State v. Rice , 129 Ohio App.3d 91, 94, 717 N.E.2d 351 (7th Dist.1998). A trial court's decision on a motion to suppress will not be disturbed when it is supported by substantial credible evide nce. Id . In addition, this court is to decide whether exigent circumstances existed on a c ase by case basis. State
v. DeFiore , 64 Ohio App.2d 115, 119, 411 N.E.2d 837 (1979). {¶10} Here, the evidence that the trial court used to determine that exigent circumstances existed was the gun in appellant’s possession. T he evidence was not competent and credible for two reasons. First, the officer had no reason to be on the curtilage. The officers were walking around the property peeri ng in windows without exigent circumstances. Second, the officers were only aware th at the appellant was a convicted felon, not that appellant was a felon under disabilit y. {¶11} The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonabl e searches and seizures, shall not be violated, and no Warrants shall issue, but upon pr obable cause, supported by Oath or affirmation, and particularly describing the place t o be searched, and the persons or things to be seized.” {¶12} The modern theory of search and seizure law is that the Fourth Amendment serves to protect the individual's subjective expectation of pr ivacy that society is prepared to accept as “reasonable.” Rakas v. Illinois , 439 U.S. 128, 143–144, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States , 389 U.S. 347, 360–361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), (Harlan, J., concurring). One implication of this theory is that law enforcement officers do not infringe upon any constitutionally protected interest when they intrude upon a place where an individual does not have a reason able expectation of privacy. In those situations, it is said that no “search” has occurred within the meaning of the Fourth Amendment, and evidence obtained thereafter need not be suppressed. See
Illinois v. Andreas , 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983).– 5 –

Case No. 19 CO 0042 {¶13} “[T]he application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘re asonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government act ion.” Smith v. Maryland
, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The U nited States Supreme Court has subsequently adopted the test of justifiable expectat ion of privacy set forth in
Justice Harlan's concurrence in Katz. See Smith , supra; Hudson v. Palmer , 468 U.S. 517, 525, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). {¶14} The Katz analysis consists of two separate inquiries. The first is whe ther the individual, by his conduct, has exhibited an actual, subjec tive expectation of privacy.
Katz , 389 U.S. at 361. In the words of the Katz majority, the individual must show that he “seeks to preserve [something] as private.” Id . at 351. The second question is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as “reasonable” or is “‘justifiable’ under the circum stances.” Smith v. Maryland
, supra. {¶15} Here, appellant had an actual, subjective expectation of priva cy that society recognizes as reasonable. Curtilage is the area “to which exte nds the intimate activity associated with the ‘sanctity of a man's home and the privacies of life.’” Oliver v. United
States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), quo ting Boyd v. United
States , 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). It is the area “so intimately tied to the home itself that it should be placed und er the home's ‘umbrella’ of Fourth Amendment protection.” United States v. Dunn , 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). {¶16} The following factors are “useful analytical tools” to assist in determining whether a certain space is considered part of the home's curtil age: (1) the proximity of the area to the home; (2) whether the area is included within a n enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken to protect the area from observation by passersby. Id . It has been stated that the boundaries of curtilage are generally clearly marked. Florida v. Jardines , 569 U.S. 1, 7, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). {¶17} Here, the area in question was immediately adjacent to the hom e and appellant took actual steps to protect the area from observatio n by passersby. The– 6 –

Case No. 19 CO 0042 curtains and refrigerator were placed in a way to prevent other s from peering into the home. The area outside the home, next to the window was theref ore curtilage for purposes of the Fourth Amendment analysis. But even if an area is curtilage, it does not render the officer’s presence per se invalid. State v. Albright , 7th Dist. Mahoning No. 14- MA-0165, 2016-Ohio-7037, ¶ 28. {¶18} “A police officer conducting an investigation may enter the ar eas of the curtilage which are impliedly open to use by the public.” Id . citing Jardines at 6-7. Here, the area was no more open to the public than if a “Peeping Tom” were pressing their nose against the window. The officer had no reason to be so close t o the house without a warrant and in doing so invaded appellant’s reasonable expectat ion of privacy. {¶19} In comparison, appellant points this court to a Sixth Circuit decision that held that no exigent circumstances existed when the police note d the mere presence of a gun in a house without “any threats from the defendant or inf ormation on the defendant’s criminal history or reputation for violence.” United States v. Bates , 84 F.3d 790, 796 (6h Cir. 1996). {¶20} In Bates , the appellant challenged a no-knock entry by claiming that no exigent circumstances existed to justify the entry. In Bates , the officers were conducting video surveillance and observed the appellant carrying a large cardboard box, which the officers suspected contained cocaine. Id . at 792. Boddie, an informant, had told the
officers that the boxes contained cocaine and that he had seen a firearm in the apartment.
Id . Based upon this information the officers conducted a no-knoc k entry to the premises, some entering through breaking down the front door, others ente ring by climbing up a
ladder to the back window. Id . at 793. After entering, officers located cocaine and a
firearm. Id

. {¶21} The case at hand is quite similar. The officers in the presen t case also had no indication of appellant’s propensity for violence or any ind ication that appellant was going to use the firearm in an offending manner. The officers had no indication that appellant was a felon under disability, only that he was a felo n. Not all felonies carry with them a disability. See R.C. 2923.13(A)(2)(3). The code specif ically sets out that the disability only applies to felonies of violence or drug offense s. R.C. 2923.13(A)(2)(3). Without further information, the officers could not have been a ware of what specific– 7 –

Case No. 19 CO 0042 felonies appellant was convicted of. In other words, the offic ers could not tell, simply by looking at appellant, whether he was a violent offender or had convictions for drug crimes. Individuals are allowed to possess firearms within their own ho me, even while brushing their teeth. This defeats the state’s argument that exigent ci rcumstances existed. {¶22} Because the officers were not faced with exigent circumstances , they had no basis on which to enter the home. In addition, the officers had no indication that appellant was a felon under disability, only that he was a felo n. Based on the foregoing, the trial court should have granted appellant’s motion to suppr ess. {¶23} Accordingly, appellant’s sole assignment of error has merit an d is
sustained. {¶24} For the reasons stated above, the trial court’s judgment is he reby reversed.
The matter is remanded to the trial court with instructions to grant the motion to suppress and for further proceedings pursuant to law and consistent with this opinion.

Robb, J., concurs. D’Apolito, J., concurs.[Cite as State v. Desarro , 2020-Ohio-6815.]

For the reasons stated in the Opinion rendered herein, the sole assignment of erro r is sustained and it is the final judgment and order of this Cou rt that the judgment of the East Liverpool Municipal Court of Columbiana County, Ohio, is reversed. We hereb y remand this matter to the trial court with instructions to gran t the motion to suppress and for further proceedings according to law and consistent with th is Court’s Opinion. Costs to be taxed against the Appellee. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedu re. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.