[A] warrant was not required because it was demonstrated that Captain Chase had not yet concluded his immediate investigation into the cause and origin of the fire; i.e., there was an ongoing exigency. We therefore conclude that the facts and issues at hand are sufficiently distinguishable from those in Sutcliffe, such that the trial court misapplied Sutcliffe’s holding in granting Hommes’ motion to suppress.
State v. Hommes
2021 – Ohio – 4568
Eleventh District Appellate Court
Ashtabula County, Ohio
December 27, 2021
In February 2019, the Ashtabula Fire Department responded to a fire at the Hommes’ residence. Multiple children safely exited the home. Captain Stephen Chase, a certified fire investigator, searched the house to determine the origin and cause of the fire. Ms. Angela Hommes was not present when the fire ignited and did not return until after the fire had been suppressed and the captain was conducting his investigation.
Captain Chase testified that he was called to the fire around 6:30 a.m. He arrived within “twenty minutes, maybe,” but could not enter the residence for another thirty to forty-five minutes due to active suppression of the fire. When asked whether suppression efforts were still ongoing when he finally did enter, Captain Chase testified as follows:
Yes. Normally when we, when the fire crews put out a fire, as long as the investigator’s available, they will extinguish the fire the majority of the way. And then they want to accomplish what’s called overhaul, where they rip things apart and they make sure the fire’s out. Make sure there’s nothing smoldering that’s gonna reignite. Typically, and in this case, they hold off on that process until I’ve had a chance to investigate, because that process involves throwing a bunch of stuff out the window, moving a bunch of stuff. It disturbs evidence and makes my job more difficult. So typically they wait. In this case they did wait.
Captain Chase further explained that “overhaul” is a “subset of suppression”:So when we have a fire, we go there, we extinguish the fire by whatever means necessary. We put out the main body of the fire. That typically requires large volumes of water. We try to put that fire out as fast as possible to save lives, protect property, so on and so forth. There’s still void spaces in houses, there’s still debris there that could have embers underneath that are still burning, that are still capable of reigniting as they sit there and smolder. Putting that out, and the disassembly of whatever we have to whether it was pertinent to his investigation as to the cause of the fire.
When extinguishing the fire, the suppression crew had breached a locked interior door to a room described as an office. In that room, Captain Chase observed two computers connected to webcams pointed at the back door of the home, ammunition, airsoft pistols, and an open safe on the floor that appeared to contain illegal drugs and paraphernalia. It was reported that a handgun had also been seized from that room by the fire suppression crew and turned over to Officer Perry. Captain Chase seized the two computers, which were then locked in evidence at the fire department. Captain Chase testified that he has “had a number of trainings dealing with evidence collection,” but that it is “outside the scope of my training as a fire investigator to collect [drugs] as evidence”; “nor am I trained to collect weapons.” He contacted the Ashtabula Police Department and requested an officer to respond. At this time, the captain testified, he had not yet searched the entire house nor determined the cause and origin of the fire. Captain Chase testified that Officer Thomas Perry, an officer at the time, “was there quickly,” within “five minutes, ten minutes.”
Officer Perry testified that he arrived around 9:25 a.m. in response to the call from Captain Chase and that he did not know why he was called to the scene until he arrived. When asked if there were any fire trucks on scene when he arrived, Officer Perry testified, “I don’t recall if there were or not.” Captain Chase showed him the ammunition and the safe; advised that he did not know, but it was his suspicion, that the safe contained illegal drugs; and indicated he did not know at that point in time whether it was pertinent to his investigation as to the cause of the fire. Neither Captain Chase nor Officer Perry took pictures of the safe or its contents.
Officer Perry secured the items and placed them in evidence. He suspected the substance was methamphetamine, which was later confirmed by a presumptive test at the police station. The officer also collected two boxes of 9mm ammunition from the office. A warrant was not obtained for the seizure of evidence. Officer Perry testified, as pertains to the items he collected, as follows:
Q. And what did you do then, as it pertained to these items [Captain Chase] found?
A. I went into the area that he was checking and securing, and in plain view in the safe sitting in the safe – the door of the safe was open – I located the items he was speaking of. [Emphasis added.]
Q. And what were those items?
A. Three bags of crystalline substance that I suspected to be methamphetamine, and two digital scales.
Q. And what did you do with those items?
A. I secured those items and placed them in evidence.
Q. Okay. Was anything else taken from this room and logged into evidence with APD in this case?
A. I logged in two boxes of 9mm ammunition, and another scale. * * *
Q. The ammo, is that something you collected at the same time that you had collected the drugs?
A. Yes.
Q. And where did you collect those from?
a. Same room, in plain site [sic], sitting on like a desk or shelf.
Q. Okay. Did you go into any other rooms in that house?
A. I did not.
Q. Did you rifle through that office space after Capt. Chase showed you the drugs and the ammo?
A. I did not.
Q. You just collected it and left?
A. Right. The house wasn’t safe.
After clearing the office, Captain Chase continued his investigation in the living room and, finally, in the bedroom, which he determined was the origin of the fire.
The fire department’s report was presented by defense counsel during cross-examination. It indicates that Captain Chase arrived on scene around 7:12 a.m., the fire chief was already on scene, and they both cleared the scene around 9:30 a.m. The fire suppression units were released from the scene one at a time between approximately 8:45 a.m. and 9:07 a.m. Although the fire suppression was complete, Captain Chase was still conducting his investigation:
[Defense Counsel]: And L1, Ladder One, it was the first one that was cleared, was it not?
Capt. Chase: If that’s what the report says. To be honest, when the crews were getting released I was inside investigating the fire. The fire chief was releasing crews.
[Defense Counsel]: And at 9:07 I think there’s a note that indicates all units were cleared except for FI-1 [previously identified as Captain Chase] who’s on scene conducting investigation.
Capt. Chase: Yes. That is in the narrative.
[Defense Counsel]: And that 9:07 timeline, that kind of lines up with your recollection of your investigation?
Capt. Chase: Yeah, as best I can remember.
The trial court granted Hommes’ motion to suppress the evidence that was seized by the police department. The court found that Captain Chase was authorized to enter the residence without a warrant to conduct an immediate investigation into the origin and cause of the fire; he was lawfully present, and the suspected illegal drugs and paraphernalia were in plain view; and, recognizing it was not his job to collect evidence of that nature, it was appropriate to report his observations to the police department. The court concluded, however, that “[t]he facts in this case do not present exigent circumstances or any other basis that would trigger an exception to the Fourth Amendment requirement for a search warrant,” and therefore the police department was required to “take the information received from the firefighters to an impartial Magistrate for a determination of whether there is probable cause to issue a warrant for a search of the residence.”
The State of Ohio noticed this appeal, advancing one assignment of error: “The Trial Court erred in granting Appellee’s Motion to Suppress.” The basis of the appeal is that Capt. Chase and Officer Perry had an exigent circumstance – an actual and on-going emergency that people may be in danger.
The Eleventh District Appellate Court held “The trial court erred in granting Hommes’ motion to suppress, and the state’s sole assignment of error has merit.”.
Information for this article was obtained from State v. Hommes, 2021 – Ohio – 4568. The Eleventh District Appellate Court issued the decision which is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.
Lessons Learned:
- The attorneys for Ms. Hommes were successful suppressing her methamphetamine and scales at the trial court based on the case of State v. Sutcliffe. “The facts of Sutcliffe are as follows: a volunteer firefighter responded to a house fire; the homeowner was not present; the firefighter breached a securely locked room due to its proximity to the flames outside the house; in the room, he observed thick smoke and “growing supplies.” The firefighter reported his observation of “growing supplies” to the assistant fire chief, who contacted the sheriff’s office; the fire was completely extinguished, and the house was vented by the time members of the sheriff’s office arrived. A search warrant was not obtained prior to any law enforcement officials entering the residence. Sergeant Carrozzi, supervisor of the county’s drug task force, “responded to the residence to investigate the purported illegal grow of marijuana.” Sergeant Carrozzi identified plants in the room as marijuana plants, and he took photographs of the items in the room (marijuana plants, grow lights, and watering lines). The sergeant and other members of the drug task force seized the items and transported them to the drug task force headquarters.” State v. Sutcliffe, 2008-Ohio-6782. Based on the Sutcliffe case the trial court suppressed Ms. Hommes methamphetamine and scales. However, the Eleventh District Appellate Court had a different analysis. “The evidence was properly suppressed in Sutcliffe because no warrant had been obtained and there was no discussion as to an ongoing investigation; i.e., there was no demonstration of an exigency. Here, on the other hand, a warrant was not required because it was demonstrated that Captain Chase had not yet concluded his immediate investigation into the cause and origin of the fire; i.e., there was an ongoing exigency. We therefore conclude that the facts and issues at hand are sufficiently distinguishable from those in Sutcliffe, such that the trial court misapplied Sutcliffe’s holding in granting Hommes’ motion to suppress.”
- The court in this case also reviewed the doctrine of exigency and plain view, “The doctrine of exigent circumstances is one such exception. “‘Exigency’ denotes the existence of ‘real immediate and serious consequences’ that would certainly occur were a police officer to postpone action to get a warrant.’” A fire is one of only a few exigencies recognized under this doctrine by the United States Supreme Court.” See Welsh v. Wisconsin, 466 U.S. 740, 751 (1984). “The plain view doctrine serves as an extension of the original justification for the officer’s presence, whether it be a warrant to search for another object, exigent circumstances, or some other lawful reason.” Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
- The court also reviewed the simply-complex Fourth Amendment artistry when a fire exigency is on-going and has concluded: “Fourth Amendment protections and the exceptions thereto extend to fire officials responding to an ongoing fire. Michigan v. Tyler, 436 U.S. 499, 506, (1978) (“there is no diminution in a person’s reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman”). Also in Tyler, the United States Supreme Court explained that “the exigency justifying a warrantless entry to fight a fire” does not end—and “the need to get a warrant” does not begin “with the dousing of the last flame”: “this view of the firefighting function is unrealistically narrow.” (Emphasis added.) Id. at 509-510. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims.” [emphasis added]
- Anytime a law enforcement officer or fire investigator questions whether or not the fire exigency is on-going or not, then a search warrant should be obtained. Many times, shortening the investigation at the inception can lead to suppression of critical evidence later. In this case, Hommes, both Captain Chase and Officer Perry acted reasonably and it was the trial court judge who was unreasonably.
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