State v. Andrews

Cannon, Judge,

concurring.

{¶ 41} I concur in the majority’s opinion.

{¶ 42} In the instant case, appellant was charged with contributing to the delinquency of a child, a misdemeanor of the first degree. While I recognize the great concern for the problems associated with contributing to inappropriate underage drinking, I must also recognize the rights afforded to an individual, secure in the environment of his or her home, by the Fourth Amendment.

*604

Without first obtaining a warrant, the police officer who forces entry into a home must conduct himself within an exception to the Fourth Amendment warrant requirement in order to withstand a proper challenge. The exception at issue in this case is exigent circumstances. (Citations omitted.)

State v. Scharf,

11th Dist. No. 2003-L-203, 2005-Ohio-4206 , 2005 WL 1940361 , at ¶ 23.

{¶ 43} “[E]xigent circumstances exist where ‘there is such a

compelling necessity for immediate action

as will not brook the delay of obtaining a warrant.’ ” (Emphasis added.)

State v. Martin,

1st Dist. No. C-040150, 2004-Ohio-6433 , 2004 WL 2757604 , at ¶ 19, quoting

United States v. Adams

(C.A.1, 1980), 621 F.2d 41, 44 . While I emphasize that I do not wish to impede an officer’s duties to enforce the laws against underage drinking, there is simply not enough evidence in the record to indicate the existence of sufficient exigent circumstances to validate a warrantless forced entry and search of appellant’s home. As stated in the majority opinion, the police officers had secured the scene; no juveniles were attempting to flee the scene; the destruction of evidence was not imminent; and an emergency situation was not present. Further, there was no evidence that any person in the home was in danger or physically ill. Therefore, without the consent of appellant and without exigent circumstances, the entry into appellant’s home constituted an unreasonable, warrantless entry in violation of the Fourth Amendment to the United States Constitution.

{¶ 44} The majority opinion also indicates that there is no need to address the fact that the instant offense is a misdemeanor versus a felony, because there were no “exigent circumstances” to justify the intrusion. I, however, believe the fact that the instant offense is a misdemeanor charge is of particular importance, because it is a factor to consider in making the assessment of whether exigent circumstances exist. I would want nothing in this decision to deter an officer from exercising his duty if he clearly observes a serious misdemeanor offense or an offense of violence, or if he has other good cause to make an intrusion.

{¶ 45} I concur that it is also important to note that the police officers, at no time, asked appellant if any of the minors’ parent(s) or legal guardian(s) were present in the house. This is of particular concern because pursuant to R..C. 4301.69(E)(1), an underage individual may consume alcohol “if the underage person is supervised by a parent * * * or legal guardian.” Certainly, this would have been an appropriate inquiry by the police officers because the presence of the minors’ parent(s) or legal guardian(s) could negate the commission of any violation at all.

{¶ 46} I believe this decision is in complete accord with the Fourth District’s holding in the case cited in the majority opinion, State

v. Huff (June

10, 1999), 4th Dist No. 98 CA 23, 1999 WL 402222 .

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{¶ 47} Therefore, based on the foregoing, I concur that the trial court erred in denying appellant’s motion to suppress evidence obtained by the Bainbridge Police Department.