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Media > Newsletters > Law Enforcement Bulletin > September 2014 > Search and Seizure (Forced Entry, Warrantless Search): Ohio v. Fisher

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Search and Seizure (Forced Entry, Warrantless Search): Ohio v. Fisher

Question: Can you force entry into a residence, without a warrant, when you have identified suspects from past criminal incidents inside?
Quick Answer: No, unless there is an exception to the warrant requirement.

State of Ohio v. Fisher, Fifth Appellate District, Fairfield County, July 9, 2014
Facts: On a domestic violence call, officers approach a duplex with an upper and lower level apartment. They knock on the lower level apartment, but no one answers. Upstairs, an officer is let in to the apartment by a young girl. The officer finds her mother with a red marks on her face and neck. The woman says that her brother Jonathan Fisher, who lives in lower level, attacked her. She said he may be with their other brother, who has an open warrant. The officer goes back downstairs and walks around the perimeter of duplex. He finds an open window and, in plain sight, observes two men inside. The woman is brought down and identifies the men as her brothers. With the domestic violence affidavit signed and knowledge of the alleged outstanding warrant, officers force their way into the lower level apartment and find the two men with a large bag of marijuana. Fisher filed a motion to suppress, arguing that the officers were required to have a warrant before entering the lower level apartment.
Importance: In this case, the officers needed a warrant. Neither 1) the presence of a guest with an outstanding warrant, nor 2) the identification of the domestic violence suspect justified a warrantless entry. The person who lives in the home is still entitled to privacy protections unless a warrant exception, such as to give emergency aid or to protect someone after hearing sounds of violence coming from inside, clearly applies.
Keep in Mind: Remember to follow the proper steps when you’re entering a residence. In this case, the police observed and identified the men inside the lower level apartment and knew both had engaged in criminal activity. However, neither was in the process of committing a criminal act at the time, nor was either fleeing from a criminal activity. Just because you see a suspect inside a residence doesn’t mean you can force your way in without a warrant.
More on Search and Seizure
Gun in Room 205: You respond to a call at a local motel, where a man in room 205 has allegedly threatened several people with a gun. On arrival, you knock on room 205 and a female asks who it is from behind a closed door. You answer “police” and she opens the door wide enough to see into the room. You then notice a male dive to floor. Fearing this is an unsafe situation, you draw your weapon and enter the room. You apprehend and cuff the man. A search of the room produces no weapons. During a pat-down, you find heroin in his pocket. Do the drugs get suppressed? The court in Peck says no. A warrantless entry is allowed if exigent circumstances are present and officer safety is at risk. The police in this case had a reasonable suspicion a gun was in the hotel room, and Thomas Peck’s sudden movement created an exigent circumstance. Remember, the mere fact a firearm may be inside does not create an exigent circumstance. What must be present, and explained, is the risk of danger from its use. For example, the exigent circumstance was created by Peck’s action of diving for a possible weapon. State of Ohio v. Peck, Second Appellate District, Montgomery County, June 27, 2014
Detaining while Investigating: You arrive at the scene of a reported abduction, finding a man with a woman handcuffed in his car. The man is ordered to leave the car, and you cuff him while investigating the situation. Within two or three minutes, you determine there is a bench warrant for the woman’s arrest and the man is a bail bondman. The man remained handcuffed for a while after you make this discovery. Did you violate his rights? The court in Lacey said yes. If you detain someone longer than necessary, you may lose your qualified immunity and find yourself getting sued. You can detain a suspect when you reasonably believe he may have committed a crime. But if you then uncover facts that there was no crime, the person is no longer a “suspect,” and you need to let him go. Once the officers in this case uncovered Dwayne Lacey’s identity as a bondsman, they knew no abduction had occurred. As a result, Lacey should have immediately been released. As an aside, bail bondmen in Ohio are required to notify local law enforcement before attempting to apprehend, detain, or arrest an individual, under Ohio Revised Code (R.C.) 2927.27(A)(3). Failure to do so is a misdemeanor in the first degree, with a possible six-month prison term, $1,000 fine, or both. The court made no finding about Lacey’s admitted violation of this statute, but did point it out to the lower court for consideration. Lacey v. City of Warren, Sixth Circuit Court of Appeals, Ohio, July 3, 2014
Hunches Confirmed: While on routine patrol at 3:30 a.m., you see a black SUV speed past with two men. When you activate your lights to make the stop, the SUV takes off at a speed that is unsafe to chase. After reporting the incident to your sergeant, he tells you drive down Salem Street on the belief the SUV would be there. You do, and find the SUV with the two men from the traffic stop inside, backed into a driveway. Upon seeing you, both men flee. You order them to stop, and when they fail to obey, you taser and arrest one of them. Was this search and seizure proper? The court in United States v. Davis said yes. Although the reason the officer went down Salem Street was on a hunch, the actual stop was based on an articulable reasonable suspicion because he recognized both men from the earlier traffic incident. In this case, the hunch was confirmed before the officer acted. If the hunch was confirmed during or after the stop, the court probably would have said the stop was improper. United States v. Davis, Sixth Circuit Court of Appeals, Tennessee, July 23, 2014
Furtive Movement and Loose Lips: On patrol you see two cars driving the wrong way on a one-way street. You stop the second car and note the back-seat passenger making furtive movements. You ask the back-seat passenger to exit the car and ask him what he was doing. He tells you he was stuffing a bag under the seat. You ask him if you can see the bag, and he gives it to you. The bag is an empty “booster bag” used for shoplifting. Based on this, you call in back-up to perform a probable cause search of the vehicle. The search identifies criminal tools, stolen merchandise, and drugs. Was the search proper? The court in Westlake said yes, reversing and remanding the lower court’s decision that the stop was improper because an officer cannot rely on furtive movement alone to perform a search. The appellate court determined the stop was proper because the officer only relied on the furtive movement to ask the passenger to step out of the vehicle. The passenger then volunteered information and evidence of the criminal tool. It was at that point the officer had probable cause to search the vehicle. Westlake v. Gordon, Eight Appellate District, Cuyahoga County, July 10, 2014