[Cite as State v. Booker, 2012-Ohio-162.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96935

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

GEORGE BOOKER

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-540136 

BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: January 19, 2012 
ATTORNEY FOR APPELLANT

John T. Castele 

614 West Superior Avenue 

Suite 1310 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: James M. Price 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., J.: 

{¶ 1} Appellant, George Booker, appeals the judgment of the common 

pleas court that denied his motion to suppress evidence. After a careful 

review of the record and relevant case law, we affirm the judgment of the trial 

court. 

{¶ 2} Appellant was named in a two-count indictment charging drug 

trafficking in violation of R.C. 2925.03(A)(2), with a schoolyard specification, 

and possession of criminal tools in violation of R.C. 2923.24. Appellant filed 

a motion to suppress evidence, which was denied by the trial court. On April 

19, 2011, appellant entered a plea of no contest to the indictment, preserving 

his right to appeal the trial court’s denial of his motion to suppress. The trial 

court advised appellant of his constitutional rights and penalties and, having 
considered the evidence presented, found appellant guilty of drug trafficking 

and possession of criminal tools. On May 19, 2011, appellant was sentenced 

to an eight-day term of imprisonment with credit for time served. 

{¶ 3} At the suppression hearing, Samuel Williams testified that he was 

employed by Premier Protective Services as a security guard at The Oaks 

Apartments. Williams testified that on July 23, 2011, he filed a police report 

with the Euclid Police Department alleging that appellant harassed and 

threatened him while he was on duty at the apartment complex. On July 24, 

2011, the Euclid Police Department responded to appellant’s apartment to 

investigate Williams’s complaint. 

{¶ 4} Detective Benjamin Kreischer, of the Euclid Police Department 

narcotics unit, testified that he approached appellant’s apartment complex 

with Detective David Carpenter at approximately 8:37 p.m. Det. Kreischer 

testified that he was walking toward appellant’s front door when Det. 

Carpenter stated, “Oh my God, look at this.” Det. Kreischer testified that he 

looked to see “Mr. Booker sitting on a couch in front of a coffee table and he 

had sandwich baggies, and he, clear as day, was opening up the big baggie 

and he was pulling on baggie corners with his teeth and putting a large bag of 

marijuana and separating it into smaller baggies, knotting it, and then 

tearing it off with his teeth, and then putting that bagged marijuana back on 

the coffee table.” 
{¶ 5} Det. Carpenter testified that “[i]t was dusk out, almost dark * * * 

[t]here were lights on inside the apartment. And through that opening I 

could see who we later determined to be Mr. Booker sitting on the couch 

tearing open packages of marijuana with his teeth and repackaging them.” 

{¶ 6} At that time, the detectives knocked on appellant’s apartment door 

and announced their presence. Det. Kreischer testified that the detectives 

requested permission to enter and when appellant stepped back, they 

followed him into the apartment. Det. Kreischer testified that the marijuana 

was still in plain view on the coffee table. After appellant had been arrested 

and secured, Det. Carpenter performed a routine protective sweep of the 

apartment. It was during the process of conducting the protective sweep 

that Det. Carpenter noticed a scale and a box of .45 caliber ammunition in an 

open kitchen cabinet. Det. Carpenter testified that everything he found was 

in plain view. 

{¶ 7} Appellant testified that he did not open his apartment door for the 

detectives. Rather, appellant stated that the detectives opened the door and 

walked into the apartment uninvited, and Det. Kreischer had drawn his 

weapon and pointed it at him. Appellant also testified that the detectives 

opened cabinets and overturned furniture in the apartment. Appellant 

admitted that he was in possession of a small amount of marijuana for his 

personal use, but denied having any marijuana on his coffee table at the time 
the officers entered his apartment. Appellant testified that he did not own a 

firearm and that the .45 caliber ammunition was for “scrapping purposes.” 

{¶ 8} Appellant raises this timely appeal, assigning one error. 

Law and Analysis 

I. Suppression of Evidence

{¶ 9} In his sole assignment of error, appellant argues that the trial 

court erred in denying his motion to suppress. Appellant contends that, 

“even if everything the officers testified to was true, they had no right to enter 

[his] apartment without a warrant.” 

{¶ 10} Appellate review of a motion to suppress presents a mixed 

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In deciding a motion to suppress, the 

trial court assumes the role of trier of fact. Id. A reviewing court is bound 

to accept those findings of fact if they are supported by competent, credible 

evidence. Id. But with respect to the trial court’s conclusion of law, we 

apply a de novo standard of review and decide whether the facts satisfy the 

applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 

706, 707 N.E.2d 539 (4th Dist.1997). 

{¶ 11} The Fourth Amendment of the United States Constitution states: 

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 
probable cause, supported by oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to 

be seized. 

{¶ 12} The home is the most inviolable of places, Kyllo v. United States, 

533 U.S. 27, 38, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), and with only very few 

exceptions are government agents justified in entering it without a warrant. 

“[A] search conducted without a warrant issued upon probable cause is per se 

unreasonable [and is] subject only to a few specifically established and 

well-delineated exceptions.” State v. Posey, 40 Ohio St.3d 420, 427, 534 

N.E.2d 61 (1988), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 

S.Ct. 2041, 36 L.Ed.2d 854 (1973), quoting Katz v. United States, 389 U.S. 

347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). If a search or seizure is found 

to be unreasonable, the evidence derived from the unreasonable search or 

seizure is subject to exclusion. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 

L.Ed.2d 1081 (1961). 

{¶ 13} In the case subjudice, it is evident that Dets. Kreischer and 

Carpenter had probable cause to believe a crime was afoot.1 There was 

nothing constitutionally infirm about the detectives being on the subject 

property or observing the illegal activity (i.e. drug trafficking) taking place 

 1The state contends that probable cause was established by the plain view 

doctrine. Under the plain view doctrine, “an officer may seize an item without a 

warrant if the initial intrusion leading to the item’s discovery was lawful and it was 

‘immediately apparent’ that the item was incriminating.” Id., citing Coolidge v. 

New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). 
therein. There is no question that police are privileged to go upon private 

property in the exercise of their duties. State v. Israel, 1st Dist. No. 

C-961006, 1997 WL 598396 (Sep. 26, 1997). Dets. Kreischer and Carpenter 

testified that they were responding to a police report of harassment at 

appellant’s residence when they viewed appellant through his front window. 

Such conduct was manifestly within the scope of their official duties. 

Moreover, the illegal activity at issue here (i.e. drug trafficking) was 

immediately apparent and clearly visible to the detectives. 

{¶ 14} However, this brings us to the considerably more problematic 

question of whether the officers could lawfully enter the premises without a 

warrant. While the plain view exception to the warrant requirement creates 

probable cause to support a warrant, it does not and cannot create 

justification to enter a home or property without a warrant. State v. Mims, 

6th Dist. No. OT-05-030, 2006-Ohio-862, 2006 WL 456766, ¶ 21. 

{¶ 15} It is well settled law that the Fourth Amendment prohibits 

warrantless entry into a home to make an arrest unless there is both probable 

cause and the existence of exigent circumstances. See Welsh v. Wisconsin, 

466 U.S. 740, 741, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), at the syllabus: 

Before government agents may invade the sanctity of the home, 

the government must demonstrate exigent circumstances that 

overcome the presumption of unreasonableness that attaches to 

all warrantless home entries. * * * Moreover, * * * no exigency 

is created simply because there is probable cause to believe that a 
serious crime has been committed * * * Where probable cause 

exists, but exigent circumstances are absent, warrantless entries 

clearly violate the Fourth Amendment. 

See also Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 

436 (1980); Cleveland v. Shields, 105 Ohio App.3d 118, 121, 663 N.E.2d 726

(8th Dist. 1995); State v. Jenkins, 104 Ohio App.3d 265, 268, 661 N.E.2d 806

(1st Dist. 1995). 

{¶ 16} Here, appellant contends that although the detectives established 

probable cause to obtain a warrant, there were no exigent circumstances to 

justify the warrantless entry into his apartment. We agree. 

{¶ 17} We note at the outset that the state bore the burden of 

establishing exigency from the totality of the circumstances involved. Welsh 

v. Wisconsin, at 750; State v. Sladek, 132 Ohio App.3d 86, 724 N.E.2d 488 (1st 

Dist. 1998); State v. Brooks, 10th Dist. No. 94APA03-386, 1995 WL 390935 

(Jun. 27, 1995). A determination of exigency sufficient to justify a 

warrantless entry must be made on a case-by-case basis. Mincey v. Arizona, 

437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Generally, under the 

exigent circumstances exception, there must be “compelling reasons” or 

“exceptional circumstances” to justify a warrantless search. McDonald v. 

United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The 

appropriate inquiry is whether, based on the totality of the circumstances, it 
was reasonable for the officers to believe that an exigent or emergency 

situation existed. State v. Applegate, 68 Ohio St.3d 348, 1994-Ohio-356, 626 

N.E.2d 942. 

{¶ 18} The Ohio Supreme Court has determined that there are “four 

exceptions to the warrant requirement which justify a warrantless search of a 

home: (1) an emergency situation, (2) search incident to an arrest, (3) ‘hot 

pursuit’ and (4) easily destroyed or removed evidence. State v. Cheers (1992), 

79 Ohio App.3d 322, 325, 607 N.E.2d 115.” State v. King, 8th Dist. No. 

80573, 2003-Ohio-400, 2003 WL 194769, ¶ 16. 

{¶ 19} At the suppression hearing Dets. Kreischer and Carpenter each 

testified that they believed entry into appellant’s apartment was necessary to 

prevent the destruction of evidence. The King court set forth the elements 

that would justify an intrusion based on the destruction of evidence, stating, 

A police officer can show an objectively reasonable belief that 

contraband is being, or will be, destroyed within a residence if he 

or she can demonstrate: 1) a reasonable belief that third parties 

are inside the dwelling; and 2) a reasonable belief that these third 

parties may soon become aware the police are on their trail so 

that the destruction of evidence would be in order. Id. at ¶ 17, 

quoting State v. Baker, 8th Dist. Nos. 60352 and 60353, 1991 WL 

64312 (Apr. 25, 1991). 

{¶ 20} In this appeal, there are no facts that would support the claim of 

exigent circumstances. Although the detectives had probable cause to 

believe that appellant was engaging in drug trafficking, we find no exigent 
circumstances justifying their intrusion into appellant’s home. While we 

acknowledge the testimony of Dets. Kreischer and Carpenter, the facts and 

circumstances involved in this matter fail to support the detectives’ belief 

that the destruction of evidence was imminent. Here, there is no indication 

that any marijuana or other evidence was being destroyed. In fact, the 

record reflects that appellant was alone in his apartment and was unaware 

that the detectives were even at his front door until they announced their 

presence. Under those circumstances, the detectives had ample opportunity 

to secure the premises and obtain a valid warrant without risking retrieval of 

the evidence at issue. See State v. Crenshaw, 8th Dist. No. 90635, 

2008-Ohio-4859, 2008 WL 4356104. 

{¶ 21} However, our determination that exigent circumstances were not 

present in this case does not end our Fourth Amendment analysis. An 

established exception to the rule that entry of a home requires a warrant or 

exigent circumstances is where the entry is pursuant to a voluntary consent. 

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854

(1973). The voluntariness of consent is a question of fact to be determined 

from the totality of the circumstances, with the government having the 

burden of showing by “clear and positive” evidence that the consent was 

“freely and voluntarily” given. State v. Posey, 40 Ohio St.3d 420, 427, 534 

N.E.2d 61 (1988). 
{¶ 22} Courts have held that “a person can demonstrate consent to enter 

either expressly or impliedly, in ways such as opening a door and stepping 

back, or leading an officer through an open door and not expressing that he 

should not follow.” (Emphasis sic.) Bainbridge v. Kaseda, 11th Dist. No. 

2007-G-2797, 2008-Ohio-2136, 2008 WL 1934491, ¶ 35; State v. Cooper, 9th 

Dist. App. No. 21494, 2003-Ohio-5161, 2003 WL 22232442 , ¶ 9, citing State v. 

Schroeder, 6th Dist. No. WD-00-076, 2001 WL 1308002 (Oct. 26, 2001); State 

v. Asworth, 10th Dist. No. 90AP-916, 1991 WL 54181 (Apr. 11, 1991). 

{¶ 23} In the present case, Det. Kreischer testified, “So we knocked on 

the door. He got up off the couch, put his bags that he was packaging, all the 

marijuana, down on the coffee table, and put his marijuana down and went to 

answer the door. We said, ‘Could we come in.’ He took a step backwards 

and we stepped in * * *.” 

{¶ 24} Appellant’s actions clearly demonstrated his consent to the 

officers entering the threshold of his apartment. His conduct was that of one 

offering an invitation of entry into the apartment. Had appellant not wanted 

the officers to enter the apartment, he could have just as easily stepped 

outside the doorway and shut the door. The act of opening the door 

completely and stepping back into his residence constituted an invitation to 

enter. Thus, the officers acted properly in entering the threshold of the 

apartment. State v. Sutton, 7th Dist. No. 01-CA-181, 2002-Ohio-6901, 2002 
WL 31813086, ¶ 18. Once the detectives were in the threshold, the 

marijuana was in their plain view, justifying appellant’s arrest. Det. 

Kreischer testified that the marijuana was in plain sight, approximately four 

and a half feet away from the doorway when the detectives entered the 

apartment. 

{¶ 25} As stated previously, this court must defer to the trial court’s 

factual findings and then independently determine whether the trial court 

met the appropriate legal standard. After considering both the trial court’s 

factual findings and the legal standards surrounding warrantless searches, 

we conclude that the trial court met the applicable standard. Accordingly, 

appellant’s assignment of error is without merit. 

{¶ 26} Appellant’s sole assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover of said appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

MELODY J. STEWART, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR