[Cite as State v. Hancock, 2012-Ohio-1436.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 24654 

Plaintiff-Appellee : 

: Trial Court Case No. 2010-CR-3877 

v. : 

: 

ZERRICK E. HANCOCK : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 30th day of March, 2012. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County 

Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 

301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

MARK A. DETERS, Atty. Reg. #0085094, 371 West First Street, Dayton, Ohio 45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . . . . . 

 

HALL, J. 

{¶ 1} Zerrick E. Hancock appeals from his conviction and sentence following a 

no-contest plea to one count of crack-cocaine possession, a third-degree felony. 

{¶ 2} In his sole assignment of error, Hancock contends the trial court erred in 

overruling his motion to suppress evidence. 
2

{¶ 3} The facts underlying the present appeal are set forth in the trial court’s 

suppression ruling as follows: 

City of Dayton Police Officer Patrick Bell (“Bell”) testified that he and 

other officers decided to conduct a “knock and advise” at 3 Firwood Dr. based 

on [a] complaint from the owner of the building. According to Bell, the owner 

had informed the police that the renter of the apartment had been evicted but 

that others whom the renter had allowed to live with him remained. Bell 

testified that the owner believed that there were drugs in the apartment. 

Bell further testified that as he and others approached the residence to 

conduct the knock and advise, Defendant Zerrick Hancock (“Defendant”) 

exited the front door. According to Bell, when Defendant saw the officers, who 

were approximately 15-20 feet from the front door, he turned around and went 

back into 3 Firwood Dr. Bell testified that he saw Defendant reach into his 

pocket and pull out a baggy with a white substance that Bell believed to be 

crack cocaine. Bell further testified that he told the other officers that the 

Defendant had crack cocaine and the officers followed Defendant into 3 

Firwood Dr. According to Bell, he followed Defendant to the bathroom and 

when Bell entered the bathroom, he saw the plastic baggy with the white 

substance floating in the water. 

Detective Ryan Halburnt (“Halburnt”) then testified that he was the first 

officer to enter 3 Firwood Dr. following Defendant. He testified that he entered 

the residence because he believed that Defendant may try to hide or destroy the 
3

crack cocaine that Bell had seen. 

Halburnt also testified that he read Defendant his Miranda rights off the 

card provided by the police department. According to Halburnt, Defendant 

acknowledged that he understood each right and voluntarily waived those 

rights. Halburnt testified that no threats or promises were made Defendant in 

exchange for his waiver of rights, and that Defendant was coherent while being 

interviewed. 

(Doc. # 14 at 1-2). 

{¶ 4} Based on the crack cocaine retrieved from the bathroom and incriminating 

statements Hancock made to police, he was indicted on charges of possessing crack cocaine 

and evidence tampering. Hancock moved to suppress the crack cocaine and his incriminating 

statements, arguing that the officers’ warrantless entry into the home was unlawful. The trial 

court disagreed. It reasoned that the officers were permitted to follow Hancock into the home 

based on their observation of apparent crack cocaine in his possession and their fear that he 

would destroy that evidence inside the home. The trial court also found that Hancock validly 

had waived his Miranda rights before making incriminating statements. 

{¶ 5} Following the trial court’s ruling, Hancock pled no-contest to the possession 

charge in exchange for dismissal of the tampering charge. The trial court imposed a three-year 

prison sentence. This appeal followed. 

{¶ 6} “Under the standard of review for a motion to suppress, an appellate court must 

accept as true the trial court’s supported findings of fact and then independently determine, 

without deference to the conclusion of the trial court, whether the facts satisfy the applicable 
4

legal standard.” State v. Leveck, 2d Dist. Montgomery No. 23970, 2011-Ohio-1135, ¶8, citing 

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. 

{¶ 7} In the present case, Hancock does not challenge the trial court’s factual findings, 

which are based on the officers’ suppression hearing testimony. The issue is whether those 

facts reveal a Fourth Amendment violation. Hancock contends a Fourth Amendment violation 

exists for two reasons: (1) he was unlawfully “seized” before police saw him pull crack 

cocaine out of his pocket and (2) no “exigent circumstances” justified a warrantless entry into 

the home because the officers themselves created the exigency by announcing their presence. 

Both arguments lack merit. 

{¶ 8} The record reflects that several police officers arrived at the home after dark in an 

unmarked van. They then approached on foot wearing police vests and encountered Hancock 

as he was exiting the front door. Detective Halburnt immediately asked Hancock whether the 

officers could talk to him for a minute. Hancock contends he was seized at that point. Based 

on the officers’ show of force, he argues that no reasonable person would have felt free to 

ignore Halburnt’s request. Hancock further contends the seizure was unlawful because he had 

not yet removed the crack cocaine from his pocket. 

{¶ 9} Upon review, we are unpersuaded that Hancock was “seized” when detective 

Halburnt asked whether the officers could talk to him. “A show of force by a law enforcement 

officer is a necessary predicate to a seizure for purpose of the Fourth Amendment. * * * 

However, until an officer’s attempt to affect an investigatory stop succeeds by obtaining the 

suspect’s compliance, no seizure takes place and, therefore, no Fourth Amendment review of 

the reasonableness of the officer’s decision to intrude on the suspect’s privacy is warranted.” 
5

State v. Hart, 2d Dist. Montgomery No. 22018, 2007-Ohio-7162, ¶7 (citations omitted). 

Because Hancock responded to detective Halburnt’s inquiry by fleeing back into the home, 

there was no “seizure” outside the home regardless of the officers’ show of force. Id. at ¶8. 

{¶ 10} We are equally unpersuaded by Hancock’s claim that the officers 

impermissibly created the exigency that caused them to follow him into the home. His 

argument is foreclosed by Kentucky v. King, __ U.S. __, 131 S.Ct. 1849, 179 L.Ed.2d 865 

(2011). In King, the U.S. Supreme Court recognized that, strictly speaking, police almost 

always create the exigency that arises when detection of their presence results in the 

possibility of evidence being destroyed: 

That is to say, in the vast majority of cases in which evidence is 

destroyed by persons who are engaged in illegal conduct, the reason for the 

destruction is fear that the evidence will fall into the hands of law enforcement. 

Destruction of evidence issues probably occur most frequently in drug cases 

because drugs may be easily destroyed by flushing them down a toilet or 

rinsing them down a drain. Persons in possession of valuable drugs are unlikely 

to destroy them unless they fear discovery by the police. Consequently, a rule 

that precludes the police from making a warrantless entry to prevent the 

destruction of evidence whenever their conduct causes the exigency would 

unreasonably shrink the reach of this well-established exception to the warrant 

requirement. 

Id. at 1857. 

{¶ 11} As a result, the King majority held that when “police did not create the 
6

exigency by engaging or threatening to engage in conduct that violates the Fourth 

Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus 

allowed.” Id. at 1858. 

{¶ 12} The police officers here neither violated nor threatened to violate the Fourth 

Amendment when they approached Hancock’s door. “When law enforcement officers who are 

not armed with a warrant [attempt to] knock on a door, they do no more than any private 

citizen might do. And whether the person who knocks on the door and requests the 

opportunity to speak is a police officer or a private citizen, the occupant has no obligation to * 

* * speak.” Id. at 1862. “Occupants who choose not to stand on their constitutional rights but 

instead elect to attempt to destroy evidence have only themselves to blame for the warrantless 

exigent-circumstances search that may ensue.” Id. 

{¶ 13} On the authority of King, we reject Hancock’s argument that exigent 

circumstances did not justify a warrantless entry into the home because police created the 

exigency. 

{¶ 14} The assignment of error is overruled, and the judgment of the Montgomery 

County Common Pleas Court is affirmed. 

 . . . . . . . . . . . . . 

GRADY, P.J., and DONOVAN, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Johnna M. Shia 

Mark A. Deters 

Hon. Barbara P. Gorman