[Cite as Berea v. Collins, 2014-Ohio-3822.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100836




                                       CITY OF BEREA
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  JOSHUA A. COLLINS
                                                       DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                       Criminal Appeal from the
                                        Berea Municipal Court
                                       Case No. 12 TRC 00242

        BEFORE: McCormack, J., Kilbane, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 4, 2014
ATTORNEY FOR APPELLANT

Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, OH 44136


ATTORNEY FOR APPELLEE

James N. Walters
Prosecutor
City of Berea
11 Berea Commons
Berea, OH 44017
TIM McCORMACK, J.:

       {¶1} At one o’clock in the morning, on a snowy January 16, 2012, in the city of

Berea, two Berea police officers forced open the door of a residence on Bridge Street,

without a warrant, in order to arrest Joshua A. Collins for an alleged misdemeanor traffic

violation. Mr. Collins argues before this court that the Fourth Amendment to the United

States Constitution and its companion language in the Ohio Constitution guarantee that he

was entitled to be “free from unreasonable searches and seizures” in his home and that the

police action of that night was inherently unconstitutional.

       {¶2} The city of Berea, while neither appearing nor filing a brief before the

appellate court, argued before the trial court that the police officers were in “hot pursuit”

of Mr. Collins and were within their right to force the door open to arrest him. After a

thorough review of what has come to be called “exigent circumstances,” which translates

into possible compelling reasons or exceptional circumstances that would have justified

this warrantless forced entry, we do not find either such compelling reasons or

circumstances that support the exercise of such an invasive means of arrest. Neither a

true “hot pursuit” nor truly significant exigent circumstances supported this forced entry

into an occupied dwelling. We find that our Constitutions contemplated just such events

as occurred that night in Berea, and their protections were and are meant to balance the

assurances of security in one’s private dwelling against the urgency of more invasive

police procedures.
      {¶3} Finding merit to the appeal, we reverse the judgment of the Berea Municipal

Court that denied Collins’s motion to suppress. The matter is reversed and remanded.

                      Substantive Facts and Procedural History

      {¶4} On January 16, 2012, Collins was charged by the city of Berea with

operating a vehicle under the influence (“OVI”), having a prohibited blood alcohol level,

and speeding.   He filed a motion to suppress evidence obtained by the police as a result

of a warrantless entry into his home. The parties stipulated to Ptl. Ted Makrinos’s

written statement regarding the incident.   He recounted the incident, which occurred

around 1:00 a.m. as follows:

      I was going west on E. Bridge St. when a vehicle (the only one on the road)
      started travelling [sic] east on Bridge St. at a high rate of speed. My radar
      indicated that the vehicle was travelling [sic] at 50 mph on a 25 mph zone.
      I stopped on the road and was waiting for the car to pass me by so I can turn
      around and pull it over. The vehicle started slowing down and instead of
      passing by, turned left in to a drive way two to three drives in front of me.
      I pulled in the drive way behind the car (189 E. Bridge) and as I was ready
      to get out, the driver a white male got out went to the passenger side took
      out what appeared to a [sic] guitar case and some other items and started
      walking towards the police car. I stated to the driver I wanted to talk to
      him because he was speeding and he said ok let me put my stuff by the steps
      so they are not on the snow. When he said that I noticed that he had a
      slurred speech and he also appeared to be under the influence.
.
      I ran the plate on my MDT and as I got out of the car, the male ran up the
      steps and locked the door behind him. I knocked on the door several times
      and advised the male to open the door. The male stated I don’t have to
      open the door for you and you can go and get a warrant. At that time I
      advised dispatch of the situation and Sgt. Grecol arrived on the scene.
      Again I asked the male to open the door several times and I advised him if
      he did not I would force the door and enter the premises. Sgt. Grecol also
      advised the male to open the door or we will force it in. The male refused
      again. I state to the male I will count from 5 to 1 and then I will force the
      door in. I started 5, 4, and when I got to 3 it appeared that the male
        barricaded the door with his body. When I got to one I forced the door
        open and the male was behind it. As Sgt. Grecol and I were giving him
        verbal commands and were trying to place the cuffs on him, a female
        (Aleece E. Roach) came from inside the house and I asked her why she did
        not open the door. She stated he told me not to open the door. The male
        identified as Mr. Joshua A. Collins was arrested and placed in the back of
        1661. * * *

        {¶5} The officers then took Collins to the Berea police station for a field sobriety

test.   He   failed the test and his breath alcohol concentration measured 0.189, exceeding

the legal limit.

        {¶6} Following the suppression hearing, the Berea Municipal Court denied

Collins’s motion. Collins then pled no contest to the OVI charge, and the prosecutor

dismissed the remaining charges. The court found him guilty of OVI and sentenced him

to a fine of $600 plus court costs and a jail term of three days, with the option of

participating in a 72-hour program and one year of basic probation in lieu of the jail term.

 The court stayed the execution of the sentence pending appeal.1

        {¶7} Collins raises one assignment of error on appeal.              He argues that the trial

court erred in denying his motion to suppress. The issue confronting us is whether the

police officers’ warrantless forced home entry to effect the arrest of an individual

suspected of OVI offends the Fourth Amendment under the totality of the circumstances

existing in this case.




        The original appeal, Berea v. Collins, 8th Dist. Cuyahoga No. 99406, 2013-Ohio-4191, was
        1


dismissed by this court for lack of a final appealable order because the trial judge failed to adopt the
sentence imposed by the magistrate.
        {¶8} 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 are 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 trial court’s

conclusion, whether the trial court met the applicable legal standard.’” Id., quoting State

v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998).

                             Warrantless Entry Into a Home

        {¶9} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution guarantee the right of the people to be free from

unreasonable searches and seizures.     See State v. Orr, 91 Ohio St.3d 389, 391, 745

N.E.2d 1036 (2001). The Fourth Amendment states,“The right of the people to be

secure in their person, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * *

*.”      Evidence obtained from a search or seizure in violation of            the Fourth

Amendment is excluded.      Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961).

        {¶10} This case involves the police officers’ warrantless forced entry into a home

to effect a misdemeanor arrest.   The “physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.”          United States v. United
States Dist. Court for the E. Dist. of Michigan, 407 U.S. 297, 313, 92 S.Ct. 2125, 32

L.Ed.2d 752 (1972).     Absent exigent circumstances, a warrantless search or seizure

effected in a home is per se unreasonable.     State v. Freeman, 8th Dist. Cuyahoga No.

95608, 2011-Ohio-5651, ¶ 16, citing Payton v. New York, 445 U.S. 573, 590, 100 S.Ct.

1371, 63 L.Ed.2d 639 (1980).     The idea behind the concept of exigent circumstances is

that a delay could enable the suspect to escape, creating a danger to the public or police,

or to destroy the evidence.   “Exigent” is defined in Black’s Law Dictionary as “requiring

immediate action or aid; urgent.”    The courts in Ohio have identified exceptions to the

warrant requirement that justify a warrantless search of a home:         (1) an emergency

situation, (2) search incident to an arrest, (3) “hot pursuit” of a fleeing felon, and (4)

easily destroyed or removed evidence. State v. Cheers, 79 Ohio App.3d 322, 325, 607

N.E.2d 115 (6th Dist.1992); State v. King, 8th Dist. Cuyahoga No. 80573,

2003-Ohio-1143, ¶ 16.

       {¶11} In these delineated situations, the exigent circumstances relieve the police of

the need to obtain a warrant.    The courts, however, have imposed on the state a heavy

burden of demonstrating an exigent circumstance that would overcome the presumption

of unreasonableness attached to all warrantless home entries. Welsh v. Wisconsin, 466

U.S. 740, 750-753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).        See also State v. Letsche,

4th Dist. Ross No. 02CA2693, 2003-Ohio-6942, ¶ 20;            State v. Brooks, 10th Dist.

Franklin No. 94APA03-386, 1995 Ohio App. LEXIS 2764, *10 (June 27, 1995). This

court emphasized that, under the exigent circumstances exception, there must be
“compelling reasons” or “exceptional circumstances” to justify a warrantless entry.

State v. Lomax, 8th Dist. Cuyahoga No. 86632, 2006-Ohio- 3725, ¶ 16, citing Alliance v.

Barbee, 5th Dist. Stark No. 2000CA00218, 2001 Ohio App. LEXIS 1120 (Mar. 5, 2001),

citing State v. Moore, 90 Ohio St.3d 47, 52, 734 N.E.2d 804 (2000). In common

language, we review the warrantless entry and ask: was the entry so necessary as to be

compelling; was it imperative that it be so immediate; was there no other good choice or

option?

                                      “Hot Pursuit”

       {¶12} At the suppression hearing, the city of Berea argued Ptl. Makrinos’s “hot

pursuit” of Collins justified the officer’s warrantless entry into his home, and the trial

court denied Collins’s motion to suppress on that ground.        Under this exception, a

warrantless entry into a home to effectuate an arrest is permitted when the police are in

“hot pursuit” of a fleeing felon.   United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct.

2406, 49 L.Ed.2d 300 (1976). Underlying the “hot pursuit” exception is the idea that it

is unrealistic to expect the police officers to stop in the middle of a chase to obtain an

arrest warrant; as to do so may allow the suspect to escape and render the warrant

subsequently obtained meaningless.

       {¶13} Santana concerned a fleeing felon.     The Supreme Court of Ohio, however,

extended the “hot pursuit” exception to a warrantless entry of the home of a suspect who

committed a misdemeanor traffic offense. Middletown v. Flinchum, 95 Ohio St.3d 43,

765 N.E.2d 330 (2002). In Flinchum, the police officers observed the appellant driving
erratically.   He spun his car tires when the traffic light turned to green. He then stopped

and rapidly accelerated his car, causing it to fishtail when it made a right turn.         The

officers decided to follow him and attempted to approach his vehicle twice.           On both

attempts, he fled from the police.     Later, the officers found him standing on the driver’s

side of his parked car.     When he saw the officers stop their cruiser in front of his car, he

ran.    One of the officers pursued him on foot, repeatedly yelling “Stop” and “Police,”

but he continued to run, toward his house. He then entered his house through the rear

door.   Without his permission, the officer entered his home and arrested him.         He was

subsequently charged with reckless operation of a vehicle and DUI. Id. at 43 - 44.

        {¶14} The Supreme Court of Ohio saw no reason to differentiate the fleeing

suspect who committed a misdemeanor traffic offense in that case and the fleeing felony

in Santana.    Id. at 45.   It held that “[w]hen officers, having identified themselves, are in

hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter

without a warrant, regardless of whether the offense for which the suspect is being

arrested is a misdemeanor.” Flinchum at syllabus.         The court cautioned, however, that

its holding did not give law enforcement “unbridled authority to enter a suspect’s

residence at whim or with a blatant disregard for the constraints of the Fourth

Amendment.” Id. at 45.         The court carefully limited its holding to the circumstances

existing in the case.

        {¶15} “The question of whether an entry into a home by peace officers, acting

without a warrant, is ‘reasonable’ requires a careful analysis of the sequential and
consequential events leading up to and including the entry. An entry can never be found

‘reasonable’ based solely upon the fact that criminal conduct, or contraband, was

discovered within the residence.”       State v. Russell, 127 Ohio App.3d 414, 416, 713

N.E.2d 56 (9th Dist.1998), citing State v. Williams, 55 Ohio St.2d 82, 86, 377 N.E.2d

1013 (1978).

        {¶16} Our thorough review of the sequence of events that took place early on

January 16, 2012, reveals the tension between the protections afforded by the United

States Constitution’s Fourth Amendment against unreasonable searches and seizures and

the flow of police work that night on Berea’s Bridge Street.     We are presented with the

challenge of carefully balancing the mandates of guaranteed privacy protections against

those of more immediate police action.       This case presents as one where elements are

present for both application of the Fourth Amendment protections and real time police

work.

                          Whether the Officer was in “Hot Pursuit”

        {¶17} The undisputed evidence in this case shows that the police officer saw

Collins’s vehicle appear to be speeding shortly before Collins arrived at his home. At

the time the officer was traveling on the opposite side of the road.     Before the officer

could turn around and pull Collins over for speeding, Collins pulled into his driveway,

which was several driveways in front of the police cruiser.       The police officer turned

into the same driveway as well.     Collins exited his car and walked towards the police car

to talk to the officer.   The officer indicated that he wanted to talk to Collins because he
was speeding. Collins said “ok” but stated he needed to put his guitar down on the door

steps. The officer noted in his report that during the brief exchange, Collins had slurred

speech and “appeared to be under the influence.”      After staying inside his police vehicle

to run Collins’s license plate information, the officer exited the police vehicle.   At that

point, Collins “ran up the steps” and locked the door behind him. The officer knocked

on the door and ordered Collins to open the door. Collins then insisted the officer

needed a warrant to enter his house. Collins blocked the door with his body. The

officer, with his sergeant at his side, forced the door open and arrested Collins.

       {¶18} Flinchum requires the police to not only identify themselves but, most

notably, be in hot pursuit of a suspect.   The circumstances of this case contrast sharply

with Flinchum.     In Flinchum, the suspect was aware of the presence of the police early

on and he fled from the officers twice when they attempted to approach his vehicle.      The

suspect later left his car, and, when he realized the police vehicle was nearby, he again

fled by running away while an officer chased him, yelling “Stop” and “Police” repeatedly.



       {¶19} Here, Collins turned into his driveway before the officer had a chance to

even turn around and follow him, much less “pursue” him. Collins already had parked

his car before the police officer identified himself and indicated the reason for his

presence.   Even if we were to consider the officer’s statement that he wanted to talk to

Collins tantamount to a police order to “stop,” the “pursuit” did not begin until the officer

exited his vehicle to approach Collins. It ended almost as soon as it began, because
Collins immediately ran up the door steps and went inside his home. In Flinchum, the

warrantless entry was justified by the need to apprehend a suspect who had aggressively

fled from the police on three separate occasions — twice ignoring the pursuit by the

police and then ran from the police while an officer chased him on foot and repeatedly

commanded him to stop. The circumstances in this case did not add up to, and did not

constitute, a pursuit.   Nor can any recitation of the chronology add up to “hot.”

       {¶20}    The courts, including this court, have been unwilling to weaken the

scrupulously guarded Fourth Amendment protections of the home to secure an arrest and

conviction for a traffic offense, where the prosecution did not meet its burden showing

the police were in a “hot pursuit” of a fleeing suspect. See, e.g., Cleveland v. Lynch, 8th

Dist. Cuyahoga No. 98201, 2012-Ohio-5740 (officers’ entry into the appellant’s home

following his involvement in a single-car accident was not justified under the “hot

pursuit” exception because the officers were not in hot pursuit); State v. Cross, 4th Dist.

Washington No. 12CA54, 2014-Ohio-1046 (the court did not find “hot pursuit” where the

police officer never activated his cruiser’s lights or sirens alerting the appellant of police

presence before the appellant parked his vehicle in his driveway and went inside the

garage);    Letsche, 4th Dist. Ross No. 02CA2693, 2003-Ohio-6942 (“hot pursuit”

exception did not apply because there was no pursuit in public place prior to the OVI

suspect entering his own home).

       {¶21} We are fully cognizant, here and otherwise, of the danger posed to the

public by intoxicated drivers.    Here, though, Collins had already arrived at his home and
was separated from his vehicle.      His vehicle was blocked in the driveway by the police

vehicle; thus, there was at that time little imminent threat to public safety.   Furthermore,

the possibility that Collins would escape if the police were to obtain a warrant appeared to

be remote.     Unlike the suspect in Flinchum, who fled from the police twice in his vehicle

and then ran from the police on an extended foot chase, Collins went inside his house.

He had been physically identified, his license plate run, and his address verified.

       {¶22} It is quite apparent that the immediate warrantless entry into Collins’s home

was made to apprehend him for a field sobriety test and a measurement of his blood

alcohol content so as to confirm the officer’s suspicion that Collins was driving while

intoxicated.    We recognize the police officers’ need to timely ascertain an OVI suspect’s

blood-alcohol level, because such evidence dissipates over time, and a delay caused by

obtaining a warrant could affect the evidence for OVI.        However, limitations on what

the police can do to obtain and preserve evidence are carefully identified and limited by

the courts applying the Fourth Amendment.

       {¶23} Balancing the people’s guaranteed right to dwell in reasonable security and

freedom from intrusion with the police officers’ need for acting swiftly to obtain and

preserve evidence, we conclude the city did not demonstrate compelling exigent

circumstances justifying police officers intruding into a private home to arrest an OVI

suspect for the purposes of obtaining evidence of intoxication.     The police had not been

in a “hot pursuit” of the suspect.
       {¶24} Finally, we note that for a warrantless entry to effect an arrest to be lawful,

in addition to an exigent circumstance, the police still must have probable cause to arrest.

 United States v. Johnson, 256 F.3d 895 (9th Cir.2001). In this case, there is no clear

showing of probable cause to arrest, because, prior to the entry, the only articulated

reasons for the officer’s belief that Collins was driving while intoxicated was his

speeding and slurred speech.     The lack of a well-supported showing of probable cause

makes the intrusion in this case even less justifiable.

       {¶25} The trial court in this case correctly cited the legal principle announced in

Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330, but erroneously concluded that the police

officer was in “hot pursuit” of Collins justifying a warrantless entry into his home. The

warrantless entry violated Collins’s Fourth Amendment rights. The sole assignment of

error is sustained.

       {¶26} The judgment of the Berea Municipal Court is reversed, and the case is

remanded for further proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee 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 Berea

Municipal 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.


______________________________________________
TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR
