Two Courts Disagree
In this case, while we find the facts and circumstances did not support the exigent circumstances exception for the Cambridge Police Department to conduct a warrantless search of Walter’s residence, the evidence shows that Walter consented to the warrantless search of the residence.
State v. Walter
2020 – Ohio – 6772
Fifth District Appellate Court
December 17, 2020
On Wednesday February 6, 2019, the Guernsey County Sheriff’s Office dispatch received a 911 hang-up call from 1204 Chestnut Street, Cambridge, Ohio, and transferred the call to the City of Cambridge Police Department. The dispatcher called the number back and a man told the dispatcher that his four-year-old son made the phone call and law enforcement was not needed. The man, later identified as Mr. Kenneth Walter, lied. His four-year-old son was not in the house. Sergeant Zachary Wolfe of the Cambridge Police Department was dispatched to the address that made the 911 hang up call because it was the policy of the Cambridge Police Department to investigate 911 calls until they could prove there was not an emergency at hand.
Mr. Walter was a felon in possession of a firearm and he made a feeble attempt at challenging the officers entry at the front door of 1204 Chestnut Street, Cambridge, Ohio.
Sgt. Wolfe arrived at the residence with other officers at approximately 1:00 a.m. The residence was mostly dark. The officers used flashlights to look in the windows of the residence to see if anyone was in the home needing assistance. They knocked on the windows and back door of the residence. A Cambridge Police dispatcher called the number back several times and there was no response. The officers came back to the front of the residence and Sgt. Wolfe started “pounding on the door trying to get someone to respond.” Sgt. Wolfe described the front door as “fairly disheveled. It appeared it had been kicked in once before. The door jamb was like patched together, and the door itself was patched together. It was in poor shape.” While Sgt. Wolfe was pounding on the front door, it came open. He announced the officers’ presence and called out to the residents inside.
Sgt. Wolfe first made contact with A.C.W., Mr. Walter’s wife. A.C.W. told Sgt. Wolfe that it was her fault that the call was made because she was drunk and she was arguing with Mr. Walter. A.C.W. told the officers that only she and a friend, N.W., were at the residence. She said Mr. Walter had left the residence before the arrival of the police. However, A.C.W. was also lying as Mr. Walter was just a few feet away on the couch but out of sight of the officers at this time.
Sgt. Wolfe asked A.C.W. to step outside and called for N.W. to come out of the residence. Sgt. Wolfe next saw Mr. Walter get up off the couch. He was asked to leave the residence and was searched for weapons. N.W. came out of the residence and he was searched for weapons. Sgt. Wolfe explained to Mr. Walter that the police were there based on the 911 hang-up call and to ensure the occupants safety with a protective sweep of the home.
With Mr. Walter’s consent, the officers conducted a protective sweep of the residence to ensure no one was injured in the residence. This verbal consent which was recorded on a body camera would be at issue in this case. The officers did not find anyone else in the residence. However, the officers did observe a firearm case and ammunition on the steps to the basement in plain view.
After the protective sweep, Sgt. Wolfe said that Officer Eubanks spoke with Mr. Walter who consented to a search of the residence.
Mr. Walter was, charged and indicted of Having Weapons Under Disability.
He filed a Motion to Suppress and the trial court denied the motion, holding that Cambridge Police entered the residence under an exigent circumstance. Mr. Walter plead no contest, was convicted and sentenced to two years in prison. He was also sentenced to another year in prison for an unrelated drug charge for a total of three years. Mr. Walter filed an appeal. The Fifth District Appellate Court held that the trial court erred as Cambridge Police did not enter the residence under the Exigent Circumstance exception, holding “Under these facts and circumstances, we conclude exigent circumstances did not exist for the Cambridge Police Department to make a warrantless entry into the home. We do not find, after considering the totality of the circumstances, that there was an emergency situation after the 911 hang-up call, demanding urgent police action.”.
However, the Fifth District Appellate Court did hold that the police did enter the residence under the Consent Doctrine and upheld his conviction. The court held “In this case, while we find the facts and circumstances did not support the exigent circumstances exception for the Cambridge Police Department to conduct a warrantless search of Walter’s residence, the evidence shows that Walter consented to the warrantless search of the residence.”.
Information for this article was obtained from State v. Walter, 2020 – Ohio – 6772 and a phone interview with Sgt. Zachary Wolfe on April 6, 2021.
This case was issued by the Fifth District Appellate Court and is binding on the following counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
- There are three legal ways law enforcement can cross the threshold of a doorway. Consent, warrant [arrest or search] and Exigent Circumstance. There are three Exigent Circumstances recognized by the court; FED – Fresh Pursuit, Destruction of Evidence, and Danger; either inside or outside the building. There is an additional Exigent Circumstance codified in the State of Ohio, O.R.C. § 2933.33 Search of Premises for Illegal Manufacture of Methamphetamine. In this case the trial court dismissed the Motion to Suppress the firearm based on Cambridge Police crossing the threshold with an Exigent Circumstance, but the court does not identify which one specifically. The Fifth District Appellate Court disagreed with the trial court and determined that there was no Exigent Circumstance. But did hold that Cambridge Police did have consent to enter the residence and therefore the firearm was admissible.
- This type of law enforcement response is common, where two distinct legal doctrines are intertwined, and the courts must untangle the legal spaghetti. Here, the officers at scene believed that there was an Exigent Circumstance, because Mr. Walter told the dispatcher that a four-year-old was the cause of the 911 hang up. In this case the officers also asked Mr. Walter for consent to sweep the residence which he granted. If a person is going to grant consent for law enforcement, it is a three-part waiver. The person must waive his Fourth Amendment Constitutional Right against unlawful search and seizure, knowingly, voluntarily and intelligently. Most often for law enforcement the element of voluntariness is questioned. Here, Mr. Walter gave his consent which was captured on body camera.
- The question remains if there was enough information or evidence to sweep the residence under the Exigent Circumstance doctrine to assure that the four-year-old was not in danger. Based on the information in the case and the phone interview with Sgt. Wolfe it does not appear to be enough evidence. However, this is a VERY close call. If the officers did not obtain consent and left without a sweep of the residence for four-year-old, would they have been held liable if the four-year-old boy was in the home dying as the officers left? This type of challenging but serious decisions must be made quickly and often at 1:00 a.m. Law enforcement is truly the Hardest Job in America.
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