[Cite as Wauseon v. Leveck, 2014-Ohio-3361.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 FULTON COUNTY 

State of Ohio/City of Wauseon Court of Appeals No. F-13-019 

 

 Appellee Trial Court No. CRB 1300323 

v. 

Mikeal Leveck DECISION AND JUDGMENT

Appellant Decided: August 1, 2014 

* * * * * 

 Eric K. Nagel, Wauseon City Prosecutor, for appellee. 

 Paul H. Duggan, for appellant. 

* * * * * 

JENSEN, J. 

{¶ 1} Appellant, Mikeal A. Leveck, appeals his November 26, 2013 conviction of 

permitting underage consumption. Finding no exigent circumstances warranting a 

warrantless entry into his residence, we conclude that the trial court erred in denying 

appellant’s motion to suppress. We reverse appellant’s conviction. 
2.

{¶ 2} On July 12, 2013, the city of Wauseon filed a one count complaint against 

appellant alleging that on or about July 5, 2013, he allowed an underage person to remain 

in his residence while possessing or consuming beer or intoxicating liquor in violation of 

R.C. 4301.69(B), a misdemeanor of the first degree. Following a plea of not guilty to the 

charge, appellant filed a motion to suppress. After a hearing, the trial court denied 

appellant’s motion. Thereafter, appellant entered a plea of no contest. He was convicted 

and sentenced by the trial court. 

{¶ 3} Appellant appeals and sets forth a single assignment of error as follows: 

 In his sole assignment of error, appellant asserts the trial court erred 

in denying the motion to suppress evidence obtained as a result of the 

warrantless entry into his residence. 

{¶ 4} Appellate review of a ruling on a motion to suppress presents mixed 

questions of law and fact. United States v. Martinez, 949 F.2d 1117, 1119 (11th 

Cir.1992); 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 the trier of fact and is in 

the best position to resolve questions of fact and evaluate witness credibility. State v. 

Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992); State v. Hopfer, 112 Ohio App.3d 

521, 548, 679 N.E.2d 321 (2d Dist.1996). An appellate court must accept a trial court’s 

factual findings if they are supported by competent and credible evidence. State v. 

Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). An appellate 
3.

court must review the trial court’s application of the law de novo. State v. Russell, 127 

Ohio App.3d 414, 416, 713 N.E.2d 56 (9th Dist.1998). 

{¶ 5} In the instant case, Sergeant Brian Courtney of the Wauseon Police 

Department testified that while on patrol in the city of Wauseon in the early morning 

hours of July 5, 2013, he responded to a noise complaint at 1170 North Street. When he 

arrived at the residence, Sergeant Courtney parked his patrol car, walked up to the front 

entrance, and stood outside for several minutes. He could not see into the residence. He 

could, however hear loud music and several different voices—both male and female—

coming from the residence. 

{¶ 6} After a second officer arrived, Sergeant Courtney knocked on the door 

several times. Receiving no response, he knocked “a little harder.” Someone inside the 

residence turned down the music. Then, Sergeant Courtney knocked “very loudly” and 

announced: “police department.” Appellant opened the door. Sergeant Courtney 

immediately recognized appellant from a previous drug related arrest. 

{¶ 7} As the door opened Sergeant Courtney noticed a large number of beer cans 

on a table. He also “saw a female, a young female running toward where – I’ve been in 

these apartment complexes before – what appeared to be a bedroom, bathroom area. I 

saw a female running to – from my left to the right.” He also noticed the appellant’s 

brother, and co-defendant, Justin Leveck. 

{¶ 8} Thereafter, Sergeant Courtney instructed the young female come outside. 

She did not respond to his requests. During the suppression hearing, Sergeant Courtney 
4.

was asked whether, at the time, he believed a crime was being committed, Sergeant 

Courtney testified, “I believed that they were hiding because of the party, because of the 

alcohol. And the age of the female appeared to me to be under the age of 18.” The 

questioning continued: 

 Q. And in attempting to speak to this girl and to have her leave the 

room, what were your concerns? 

 A. That she was hiding evidence, such as more alcohol. I’ve 

arrested Mikeal Leveck before for drugs. Believing that maybe she ran off 

with the drugs. 

 * * * 

 Q. Sergeant Courtney, you say that you’re afraid she ran off with 

drugs, correct? 

 A. She could have, yes. 

 Q. Why do you say that? What evidence was there to make you 

believe that there was probable cause or reasonable suspicion that she ran 

off with drugs? 

 A. Because of his past experience that I’ve had with Mikeal Leveck. 

 Q. And based on your past experience with him, you thought she 

was running off – you had a reasonable suspicion she was running off with 

drugs, in your mind? 

 A. Yes. 
5.

{¶ 9} Sergeant Courtney acknowledged that there was no way for the young girl to 

leave the apartment unless she left through a back window. Sergeant Courtney testified 

that he believed that the potential “destruction of [drug] evidence” constituted exigent 

circumstances warranting entrance into the residence. 

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

unreasonable searches and seizures. State v. Scott M., 135 Ohio App.3d 253, 257, 733 

N.E.2d 653 (6th Dist.1999). Absent exigent circumstances, the entrance of a home may 

not be crossed without voluntary consent or a judicially sanctioned warrant. Id.; Payton 

v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). 

{¶ 11} In State v. Bowe, 52 Ohio App.3d 112, 114, 557 N.E.2d 139 (6th 

Dist.1988), this court identified six circumstances constituting “exigent circumstances” 

which would allow warrantless entry into a home. Since Bowe, we have summarized the 

circumstances as follows: 

(1) the offense involved is a crime of violence; (2) the suspect is reasonably 

believed to be armed; (3) a clear showing of probable cause to believe that 

the suspect committed the crime involved; (4) a strong reason to believe 

that the suspect is in the premises being entered; (5) the likelihood that the 

suspect will escape if not swiftly apprehended; and (6) the entry, though not 

consented, is made peaceably. Scott M., at fn. 2, citing Bowe at 114. 

“Before agents of the government may invade the sanctity of the home, the burden is on 

the government to demonstrate exigent circumstances that overcome the presumption of 
6.

unreasonableness that attaches to all warrantless home entries.” State v. Cal, 6th Dist. 

Ottawa No. OT-03-025, 2004-Ohio-1329, ¶ 11, quoting Welsh v. Wisconsin, 466 U.S. 

740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). 

{¶ 12} Here, the state points to the third of the six circumstances and asserts that 

Sergeant Courtney had probable cause to believe that the crimes of underage 

consumption of alcohol and drug use had occurred or was occurring. 

{¶ 13} In regard to the crime of underage consumption of alcohol, the state asserts 

that when appellant opened the apartment door, Sergeant Courtney observed a large 

quantity of alcohol and witnessed what he firmly believed to be a juvenile girl run toward 

the apartment’s back bedroom or bathroom. In State v. Christian, 6th Dist. Fulton No. F04-003, 2004-Ohio-3000, law enforcement officers investigating a noise and underage 

consumption complaint knocked on the door of an apartment. Id. at ¶ 6. A juvenile 

answered the door. Id. When the juvenile realized law enforcement officers were outside, 

he left the door open and ran upstairs. Id. at ¶ 6. Reversing the trial court’s denial of a 

motion to suppress, we held that “[t]he mere fact that a juvenile ran away after seeing the 

officers does not give rise to probable cause to believe that underage drinking was 

occurring.” Id. at ¶ 12. 

{¶ 1} Even if Sergeant Courtney’s observations from the doorway of the 

apartment presented probable cause to believe that underage consumption had occurred, 

the exigent circumstances exception would not apply to support a warrantless search. 

Furnishing an underage person with alcohol, a violation of R.C. 4301.69(B), is a 
7.

misdemeanor of the first degree. This court has held that the exigent circumstances 

exception is not applicable to misdemeanor offenses. See State v. Miller, 6th Dist. Wood 

No. WD-10-027, 2011-Ohio-1545, ¶ 20; Christian at ¶ 11; Scott M. at 258. 

{¶ 14} In regard to allegations of drug use, the state argues that Sergeant 

Courtney’s familiarity with appellant’s history of illegal drug activity created an 

“emergency situation” warranting an exception to the warrant requirement. We disagree. 

The investigating officer’s knowledge of appellant’s past drug arrest does not support the 

officer’s testimony that he was concerned the “fleeing juvenile” was “hiding evidence” of 

illegal drug use. 

{¶ 15} Without a warrant, without consent, and without a demonstration of a 

recognized exception to the warrant requirement, the officers were without authority to 

enter appellant’s residence. Therefore, this court concludes that the warrantless entry was 

unreasonable and in violation of the Fourth Amendment to the United States 

Constitution. The trial court erred when it failed to suppress all evidence gained from 

Sergeant Courtney’s entry into the apartment. Appellant’s sole assignment of error is 

well-taken. 

{¶ 16} The judgment of the Western District Court of Fulton County is reversed. 

This matter is remanded to the trial court for proceedings consistent with this decision. 

Costs of this appeal are assessed to the state in accordance with App.R. 24. 

Judgment reversed. 
8.

 State v. Leveck 

 C.A. No. F-13-019 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Stephen A. Yarbrough, P.J. 

_______________________________ 

James D. Jensen, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.