[Cite as State v. Wagner , 2014-Ohio-5548.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101153

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. TERELLE L. WAGNER

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-579793-A

BEFORE: McCormack, J., Kilbane, P.J ., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: December 18, 2014ATTORNEY FOR APPELLANT Russell S. Bensing 1350 Standard Building 1370 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: John D. Kirkland Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113TIM McCORMACK, J.: {¶1} Defendant-appellant, Terelle Wagner, appeals from his conviction of carrying a concealed weapon and having wea pons while under disability. On appeal, he claims the trial court erred in denying his motion to suppress the evidence. Finding no merit to his appeal, we affirm the trial court’s judgment. {¶2} Wagner was charged with carrying a c oncealed weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree, and having weapons wh ile under disability, in violation of R.C. 2923.13(A)(3), a felony of the th ird degree. He filed a motion to suppress the evidence. The trial court denied the motion after a hearing. Wagner then pleaded no contest. The trial court found him guilty of the offenses and imposed one year of community control

sanctions. {¶3} On appeal, Wagner raises one assignment of error, claiming the trial court erred in denying his motion to suppress. Testimony at the Suppression Hearing {¶4} While on patrol at around 8:00 p.m on October 30, 2010, several police officers received a dispatch call indica ting a person being held and a gun was involved, on a house on Walton Avenue, Cleveland. Officer Neagu was as ked to assist Officers Schade and Sauders. Officer Neagu testified that he arrived at the scene within ten minutes. He and the other two officers walked up to the house and knocked on th e front door. A male, later identified as Kenneth Schoffner, answered the door, and the offi cers advised him the reason of the presence of the officers. Schoffner let the officers in. Officer Neagu testified as follows:Q. What did you do when you got to the residence?

A. We knocked on the front door. Person answered the door. We advised him why we were there, that we had received a call to check about a person being held against their will. He said there was no one there being held against their will. Obviously given the se verity of the situ ation, we asked if

he minded if we went in and checked and he had no problem with that and

let us in. {¶5} Officer Shade’s testimony was consistent with a consented entry. He testified:

* * *A male did answer the door. I don't r ecall his name or anything like that. He answered the door and th en PO Sauders had a brief conversation, stating why we ar e here, that we are here fo r a male held against his

will and I don’t recall what the male said at that point, but all I remember is they made entry to the door with the male sta ting that I guess they were allowed, and I checked the upstairs. {¶6} While Officer Shade checked the upstair s unit of the house, the other officers

followed Schoffner into the downstairs unit. The apartment looked “abandoned” and in disarray. It was also dark. The only light s that were on came from the kitchen area. The officers had to use their flashlights. Another ma n stood in the darkness in the dining room area. Officer Neagu found it peculiar that this man, later identified as Wagner, was just standing there in the darkness. Because of the nature of the dispatch call, Officer Neagu asked the two men if there was anyone else in the house. Both said no. {¶7} At that point, Officer Neag u was standing with his back to a door. To ensure his safety, he turned around and ope ned the door, which revealed a closet in which a male was standing in the pitch dark with his back to th e doorway. Officer Neagu ordered the man out ofthe closet and immediately ordered all three men on the ground. The officers then handcuffed them and patted them down for weapons. Wh ile patting down Wagner, Officer Neagu felt a magazine clip. Wagner ad mitted he had a gun on him. A loaded gun was found on his

waistband. {¶8} Officer Fairchild testified that he removed the gun from Wagner’s waistband. It was a semiautomatic handgun, a 0.380 Hi Point. Two other officers testified. Officer Schuler

testified that he and hi s partner, Officer Lozinak, heard a C ode One radio broadcast regarding a male being held by a gun. When they arrived at the house, the men in the house were already detained by the other officers. He explained C ode One is the most serious radio broadcast. Officer Shade testified he checked the upstairs unit while the other officers went into the downstairs unit — Wagner’s apartment. {¶9} Wagner testified on his own behalf. He admitted to prior offenses of drug trafficking, burglary, and having weapons while under disability. He testified that he shared the apartment with Schoffner and Schoffner’s then-girlfriend. Schoffner’s sister and her boyfriend also stayed there but had moved out. On the day of the incident, an acquaintance Juan Broom — the man standing inside the clos et, was there. Wagner explained the house was in disarray because they were packing up to move out of the house. He st ated that before the police came, he, Schoffner, and Broom rolled up some joints and were about to smoke. Wagner stated he recognized the voice in the 911 call as the voice of a friend, “Nook,” but could not explain why “Nook” made the call. {¶10} Although the “dispatch narrative” in the police report in this case contained a

notation “unsure if this is real or a prank,” the officers were not aware of the uncertainty.

Standard of Review{¶11} An 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. We accept the trial court’s findings of fact if they ar e supported by competent, credible evidence. State v. Preztak , 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.). Once we accept the factual findings as true, however, we must independently determine, as a matter of law

and without deference to the tria l court’s conclusion, whether the trial court's decision meets the applicable legal standard. State v. Lloyd , 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998). {¶12} Wagner claims the anonymous tip did not provide the police with probable cause to make a warrantless entry a nd search of the home. {¶13} Our review of the suppression hearing tran script shows that the police entered Wagner’s apartment with consent. However, ev en if the consent was not clearly reflected by the testimony, as Wagner claims, the police entry would qualify under the emergency-aid or exigent-circumstance exception to the Four th Amendment’s warra nt requirement. Emergency-Aid or Exigent-Circumstance Exception {¶14} Warrantless searches are presumptively unconstitutional, but several exceptions to the warrant requirement have b een delineated by the courts, including the one pertinent to this case, the “community-caretakin g exception,” which courts sometimes refer to as the “emergency-aid exception” or “exigent-circumstance exception. ” State v. Dunn , 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 15. The exception is based on a recognition that [p]olice officers are not simply criminal law enforcers, charged with investigating criminal conduct and developi ng and maintaining eviden ce of crime. They have other roles, one of which is their commun ity health, safety, a nd protection role. Police officers are charged with the duty to prevent crime, preserve the peace, and protect persons and property.State v. Russell , 127 Ohio App.3d 414, 417, 713 N.E.2d 56 (9th Dist.1998), citing State v. Hyde , 26 Ohio App.2d 32, 33, 268 N.E.2d 820 (9th Dist.1971). {¶15} Accordingly, “‘[t]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonabl y believe that a person within is in need of

immediate aid.’” State v. Nields , 93 Ohio St.3d 6, 16, 752 N.E.2d 859 (2001), quoting Mincey v. Arizona , 437 U.S. 385, 391, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). “‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Dunn at ¶18, quoting Wayne v. United States , 318 F.2d 205, 212 (D.C.Cir.1963) (the community-caretak ing/emergency-aid exception allows a

law-enforcement officer to act without a warrant when the o fficer has objectively reasonable grounds to believe that there is an immediate need for the officer’s assist ance to protect life or prevent serious injury); Hyde, supra (the emergency-aid exception to the warrant requirement is satisfied by a showing the police officers had reasonable grounds to belie ve that some kind of emergency existed). “The ultimate standard set forth in the Fourth Amendment is

reasonableness.” Cady v. Dombrowski , 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). “Reasonable belief is asse ssed from the facts and circumst ances known to the officers, and from their point of view.” Lakewood v. Simpson , 8th Dist. Cuyahoga No. 80383, 2002-Ohio-4086, ¶ 14, citing State v. Robinson , 103 Ohio App.3d 490, 496, 659 N.E.2d 1292 (1st Dist.1995). {¶16} We are aware that the dispatch here was based on an anonymous tipster, the least reliable among different cl asses of informants. Howeve r, whether an anonymous tip provides reasonable suspicion or probable cause is determined by the totality of the

circumstances. Navarette v. California , 572 U.S. ___, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014).{¶17} Here, although there appeared to be a nota tion in the dispatcher’s note that the call might be a prank, the officers were not aware of that uncertainty. The officers believed they were responding to a Code One di spatch, the highest priority call, involving the presence of a gun and a person in imminent harm’s way. The courts have noted that “‘[t]he business of policemen and firemen is to act, not to speculate or medita te on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation of the judicial process.’”

State v. Johnson , 8th Dist. Cuyahoga No. 96983, 2012-Ohio-1344, ¶ 11, quoting Wayne at 212. The entry, if indeed without consent as Wagner claims, was justified by the officers’ reasonable belief that entering the residence was necessary to investigate what appeared to be an emergency.

See Dunn , 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N. E.2d 1037 (the court cited with approval a Florida Supreme Court case that held that the warrantless entry and search of an apartment in response to a call indicating that a person in the apartment had threatened to kill himself was lawful because of exigent circumstances indicating the need for help). {¶18} Once the officers entered the apartment, their suspicion of a potential criminal activity was not dispelled. They saw a dark apar tment in disarray and a male standing in the

darkness. There was no TV wa tching or other usual house hold activities going on in the apartment. Immediately after the two men in the apartment assured the officer that no one else was in the apartment, the officer opened a door behind him — understandably to secure the officers’ safety — a third man wa s found standing inside the pitch- dark closet, contradicting the two men’s representation. Under these circum stances, the officers’ belief they had an immediate need to protect themselves was prudent and not unreasonable. They were, of necessity, entitled to search the three men for w eapons to ensure their own safety. As the Supreme Court of Ohio cautioned, “‘[w]e cannot blind ourselves to the need for lawenforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.’” State v. Andrews , 57 Ohio St.3d 86, 89, 565 N.E.2d 1271, quoting Terry v. Ohio , 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). {¶19} For the foregoing reasons, we overrule the assignment of error. The trial court’s judgment denying the motion to suppress the evidence is affirmed. It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable 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. Th e defendant’s conviction having been affirmed, any bail pending appeal is ter minated. Case remanded to the trial court for execution of

sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

______________________________________________ TIM McCORMACK, JUDGE MARY EILEEN KILBANE, P.J., and EILEEN T. GALLAGHER, J., CONCUR