In his merit brief, Mr. Frisbie also asserts in passing that the officers’ moving of the refrigerator to retrieve the second bag of drugs was an additional, unlawful search. However, Mr. Frisbie cites no law in support of his claim that the plain view doctrine prohibits such action. While the law may prohibit manipulating or moving an object to initially determine if that object is contraband or evidence of a crime – see, e.g., Arizona v. Hicks, 480 U.S. 321 (1987) – we find no authority that prohibits moving an object in order to collect an item of contraband in plain view, assuming the officers, as here, are lawfully in a position to do so.
State v. Frisbie
2023 – Ohio – 881
Third District Appellate Court
Hancock County, Ohio
March 22, 2023
Domestic Call for Service
The testimony at that hearing can be summarized as follows: Shortly after midnight on Saturday May 8, 2021, the Findlay Police Department received a call on their regular phone line from a male who reported that, through a shared wall with the residence at 917 ½ North Main Street, he could hear his neighbors fighting. After the dispatcher asked some additional questions but was uncertain as to how many persons might actually be present in the apartment at 917 ½ North Main Street.
Findlay, Ohio Police Officers responded to 917 ½ North Main Street on a domestic call for service. What followed were an unusual fact pattern … but were the officers actions objectively reasonable?
Based on that information, and because the Findlay Police Department had received two domestic violence calls in the prior week that related to that same address, Officer Traxler and Officer Walker were immediately dispatched to 917 ½ North Main Street with regard to a possible domestic violence situation in progress. Right after that, the police sergeant on duty requested that an additional officer be dispatched to assist Officer Traxler and Officer Walker, due to the domestic violence history at that location. As Officer Hackworth and a trainee, Officer Warnimont, were near the address at issue, they were then also dispatched to 917 ½ North Main Street with regard to a possible domestic violence in progress.
Field Training Officer Role Explained
Officer Hackworth and Officer Warnimont, who were on patrol duty together in one marked cruiser, were about a block away from 917 ½ North Main Street when they were dispatched to that location at 12:08 a.m. Officer Hackworth, a police officer since 2009, had been with the Findlay Police Department for seven years. At that time, he was serving as a field training officer to Officer Warnimont, who was nearing the end of his initial 16-week training period with the department. On May 8, 2021, Officer Warnimont was working in full uniform attire, clearly identifying him as a police officer, while Officer Hackworth was in plainclothes. This is a training strategy used so that citizens interacting with the officers on calls would direct questions. The caller indicated that he could hear someone screaming and stomping around, and the caller reported that he had just heard what sounded like someone punching something. However, the caller
attention to the trainee in uniform, and not the senior officer, thereby permitting Officer Warnimont to gain more experience. On that date, both officers were aware that 917 ½ North Main Street was the residence of Mr. Casey Frisbie and Ms. Jenny Gary, a couple involved in an intimate relationship. On that date, both officers were also aware that the Findlay Police Department had responded just a few days earlier to a call from Jenny Gary reporting that Mr. Frisbie was trying to attack her with a knife.
Domestic Violence Probable Cause
On May 8, 2021, Officer Warnimont and Officer Hackworth were the first officers to arrive at 917 ½ North Main Street in response to the dispatch. The apartment at 917 ½ North Main Street is a second-story apartment, the front door to which is reached by a narrow set of exterior stairs. Upon arriving at that address, Officer Warnimont and Officer Hackworth began walking single-file up the open stairway to the front door, with Officer Warnimont in the lead. As they started up the stairs, the officers could hear angry sounding yelling coming from the upstairs apartment. The officers could not initially make out exactly what was being said by whomever was yelling, but the officers heard profanities and it sounded as if items were being banged or thrown around inside the apartment. Then, while the officers were still climbing the stairs, about a third of the way up to the apartment’s front door, they both heard someone from inside the apartment say, “Do you want punched in the face, Jenny?”.
Exigent Circumstance – Danger Inside – Forced Entry
Immediately thereafter, Mr. Frisbie exited the front door of his apartment and started down the stairs. Officer Warnimont verbally identified himself as a police officer and told Mr. Frisbie to stop. However, upon seeing the officers approaching up the stairway, Mr. Frisbie abruptly turned and ran back up the stairs. Mr. Frisbie failed to heed the officers’ commands to stop and to not enter the apartment and, instead, Mr. Frisbie ran back into the apartment and slammed the front door behind him. Evidently threatening Jenny was within his acceptable behavior but facing a rookie police officer made him run. Officer Warnimont and Officer Hackworth pursued Mr. Frisbie up the steps, got to the closed front door, and Officer Warnimont then directed Mr. Frisbie multiple times to open the door, but Mr. Frisbie failed to do so. Officer Hackworth then advised Officer Warnimont that exigent circumstances existed that would permit forced entry to the apartment, and so Officer Warnimont kicked in the front door. While Officer Warnimont was initially trying to force open the door, it felt to him as if something was obstructing the door on the inside, and it took Officer Warnimont three kicks to get the door open.
Investigative Detention
Officer Warnimont entered the apartment with his taser drawn, with Officer Hackworth following behind. Upon entering the apartment, the officers saw Mr. Frisbie coming around from the far side of a refrigerator that was located in the living room next to the front door. Mr. Frisbie was instructed to get on the floor, face down, and Mr. Frisbie complied. Another officer had arrived by that time and that officer handcuffed Mr. Frisbie, initially for safety reasons and investigative purposes, and then sat Mr. Frisbie down on the living room couch. Once Mr. Frisbie was temporarily detained in that fashion, Officer Warnimont and Officer Hackworth then quickly searched the apartment for anyone else who might be there and who may have been hurt. No victim or any other individuals were located during that protective sweep, which took two minutes or less. Officer Warnimont then asked Mr. Frisbie where Ms. Jenny Gary was, and Mr. Frisbie advised that he had been speaking to Jenny on the phone and that they had been arguing.
By the time Officer Warnimont and Officer Hackworth were done checking the apartment for a potential domestic violence victim, two sergeants had also arrived at the scene but remained outside. Officer Warnimont and Officer Hackworth went outside briefly to speak with a supervisor, to ask if Mr. Frisbie should be arrested for Obstructing Official Business and, if so, how to handle the bond. While Officer Warnimont and Officer Hackworth were outside, Officer Traxler and/or Officer Walker remained in the apartment in order to watch Mr. Frisbie, who was still detained on the couch.
Covid Era Policy Impacts the Legal Landscape
Outside, a sergeant instructed Officer Warnimont to charge Mr. Frisbie with Obstructing Official Business, but to issue an “OR” bond for the charge, in order to avoid transporting Mr. Frisbie to the county jail in light of the ongoing COVID-19 pandemic. Officer Warnimont grabbed the OR bond paperwork from his cruiser and returned to the residence, where Officer Hackworth was already waiting in the living room area, standing next to the full-sized refrigerator that was in that room, located next to the front door.
Plain View Doctrine
Officer Warnimont began explaining to Mr. Frisbie that he was being charged with Obstructing Official Business but that he would be given an OR bond. While Officer Warnimont was explaining the bond to Mr. Frisbie, who was still on the living room couch, Officer Hackworth then indicated that he had just noticed something behind the refrigerator. Officer Warnimont went over to see what Officer Hackworth was talking about and, at that time, Mr. Frisbie made the unsolicited statement, “That’s not mine.”.
The refrigerator in question was not sitting flush with the wall behind it but, rather, was several inches off that wall. With neither officer having touched or moved the refrigerator in any way, both Officer Warnimont and Officer Hackworth were able to plainly observe two sandwich-type bags of suspected drugs in the space behind the refrigerator, between the back of the refrigerator and the living room wall. Again, with no officer having moved the refrigerator in any way, Officer Warnimont and Officer Hackworth were able to see that the larger bag contained a white crystallized substance that both officers had reason to believe was crack cocaine, based on their training and prior professional experience. The smaller of the two bags, which was located closer to the floor than the bigger bag, contained a powdery substance that appeared to the officers to be either heroin or fentanyl.
Based on those observations, and the fact that the suspected drugs were in plain view, Officer Officer Hackworth then reached behind the refrigerator to collect the bags. Officer Hackworth easily retrieved the larger bag but could not quite reach down to retrieve the smaller bag, which was somewhat wedged into place and was partially underneath some drywall debris. The officers noted that the smaller bag was torn in one spot, and both officers were concerned about tearing the plastic further and spilling the contents if they were to forcibly tug the bag loose. This concern was based in part on the fact that the powdery substance in the smaller bag appeared likely to be fentanyl, which is a very potent and potentially lethal drug if it becomes airborne and is inhaled or if it makes direct contact with one’s skin.
Who Doesn’t Keep a Safe in the Freezer?
Hint: The safe did not contain cold cash …
In order to safely retrieve the smaller bag of drugs, the officers began to move the refrigerator slightly forward. Because the refrigerator was sitting on carpeting, the bottom of the refrigerator did not slide out when the officers attempted to move it forward. Instead, only the top portion of the refrigerator moved in response to the officers’ efforts, resulting in the top portion of the refrigerator tipping slightly forward. When that happened, the top freezer door swung open and a small black safe fell out of the freezer onto the floor. The officers confirmed in their testimony that it was their movement of the refrigerator that had inadvertently caused the freezer door to swing open and the safe to then fall out. The safe had not previously been in plain view until that time. Later the officers would obtain search warrant to open the safe.
Once the two bags of suspected drugs had been retrieved from behind the refrigerator, the contents of the larger bag were immediately field tested and the test result was positive for the presumptive evidence of cocaine in that substance. The officers then advised Mr. Frisbie that he was under arrest for Possession of Cocaine, and Mr. Frisbie was removed from the apartment and transported to jail.
At the second suppression hearing, which was held on February 8, 2022, the parties stipulated that all evidence presented at the first hearing would be incorporated by reference into evidence at the second hearing, to avoid excessive repetition. The prosecution then presented additional testimony from Officer Ryan Hackworth, as well as several additional photographic exhibits.
Officer Hackworth’s testimony at the second hearing touched upon his initial observation of the bags of drugs behind the refrigerator, and detailed the retrieval of the two bags, consistent with the testimony presented on those matters at the first hearing. Officer Hackworth then also testified in detail about the safe that dropped out of the freezer compartment when the refrigerator was moved, his decision to ultimately seize that safe, and how an additional quantity of fentanyl and multiple bags of methamphetamine were subsequently discovered in the safe, pursuant to a search warrant. [Note: Part of the probable cause to obtain the search warrant was established by a Hancock County Canine handler. The canine alerted on the safe prior to the safe being placed in evidence and that provided the additional probable cause that the safe contained narcotics and not cold cash.] As all of that additional testimony given by Officer Hackworth related to matters not before this court on appeal, we have opted to not set it out here in great detail.
As noted above, the trial court ultimately overruled both motions to suppress filed by Mr. Frisbie, and certain aspects of those decisions are now being assigned as error on appeal.
Appeal
Forced Entry
Mr. Frisbie first argues that the trial court should have granted his motions to suppress because the officers impermissibly made a warrantless forced entry into Mr. Frisbie’s apartment in the first place. The State of Ohio argues, and we agree, that the warrantless entry into the apartment was justified by the exigent circumstances exception to the general search warrant requirement.
In the case before us, we find that there was certainly a reasonable basis for the officers to believe that someone in the apartment could be in peril and in need of immediate assistance. A finding of exigent circumstances here is supported by the information provided by the neighbor who called the police; the yelling, loud noises, and the specific threat of harm overheard by the responding officers upon arrival; the known history of domestic violence calls at that residence; and Mr. Frisbie’s evasive and uncooperative actions when he initially exited his apartment. Under the totality of those circumstances, the officers’ decision to force entry into the apartment without a warrant was a reasonable and well-advised decision. We therefore find that the officers’ warrantless entry into the apartment did not violate Mr. Frisbie’s Fourth Amendment rights.
Court Determines there was Only One Entry … Not Two
Mr. Frisbie next argues that, even if the initial entry into his apartment was lawful, an unjustified and warrantless re-entry by police into the apartment then occurred. Mr. Frisbie claims that the re-entry was not justified after he had been detained and police had confirmed that no one else was in the apartment. We disagree, primarily because the record does not support Mr. Frisbie’s claim that police made a second entry of the apartment.
As we have already determined, the police officers were lawfully in Mr. Frisbie’s apartment initially to do a welfare check for a potential domestic violence victim. Contrary to Mr. Frisbie’s argument on appeal, the record reveals that the police never actually left Mr. Frisbie’s apartment, as two policemen – Officers Officer Walker and Officer Traxler – remained in the apartment to watch Mr. Frisbie, who was still detained on the couch for that short period of time, while Officers Officer Warnimont and Officer Hackworth briefly stepped outside to confer with a supervisor. On those facts, we find that the “re-entry” of Officer Warnimont and Officer Hackworth into the apartment to issue a citation and bond to Mr. Frisbie was a legitimate continuation of the initial investigation, particularly in light of Mr. Frisbie’s noncompliant behavior when the police first approached the apartment. Put another way, the initial entry was no broader than necessary under the exigent circumstances existing at the time. It was then Mr. Frisbie’s own actions that provided additional justification for the police officers temporarily detaining Mr. Frisbie, and then continuing to detain him while completing the paperwork necessary to charge him for his misconduct.
Did the Observation of the Two Baggies of Drugs Comport with the Plain View Doctrine?
Finally, Mr. Frisbie argues on appeal that the warrantless seizure of the two bags of drugs located behind the refrigerator was not justified under the plain view exception to the search warrant requirement.
The initial requirement for such a seizure pursuant to the “plain view” exception to the search warrant requirement is a three-part test (1) “the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton v. California, 496 U.S. 128, 136, (1990). In addition, (2) the officer must be lawfully located in a place from which the object can be plainly seen, and must also have a lawful right of access to the object itself. Id. at 137. Finally, the (3) incriminating character of the evidence in plain view must be “immediately apparent.” Id. at 136.
In this case, as we previously stated, Officer Warnimont and Officer Hackworth were justified in entering Mr. Frisbie’s home to determine if a victim was in need of assistance. Contrary to Mr. Frisbie’s suggestion on appeal, there is no indication in the record that the officers sought to conduct a warrantless search for drugs by using the “exigent circumstances” exception to the warrant requirement as a pretext of some sort. Rather, the record reflects that the officers forced entry into Mr. Frisbie’s home for a limited purpose and their subsequent search of the apartment was limited to only what was necessary to effectuate the purpose of that entry, which was to find a victim who might need medical assistance or other aid.
But For Covid Era Modifications the Cocaine may Not Have Been Discovered
While the officers were lawfully still in the apartment and finishing up their initial investigation, including the issuance of the citation and bond paperwork to Mr. Frisbie, Officer Hackworth observed the two baggies full of suspected drugs behind the refrigerator, while he stood next to the refrigerator waiting for his partner to finish providing the bond information to Mr. Frisbie. We find, as the trial court did, that Officer Officer Hackworth was lawfully located in a place from which the objects at issue could be plainly seen, a place from which the officer had a right of access to the objects at issue, and that the incriminating character of the evidence in plain view was “immediately apparent.”
While Mr. Frisbie asserts on appeal that Officer Hackworth’s claim of inadvertently noticing the drugs behind the refrigerator was not credible, the record more than adequately supports the trial court’s finding of fact in that respect and, while corroboration is technically unnecessary, Officer Hackworth’s testimony about the placement of the refrigerator, the way the drugs behind it were situated, and how it was that the officer happened to notice the drugs in that location, was corroborated by multiple photographs introduced at the suppression hearings.
Mr. Frisbie also asserts on appeal that the incriminating nature of the contents of the bags behind the refrigerator was not immediately apparent. We disagree. In assessing whether the incriminating nature of an item is immediately apparent for purposes of the plain view exception, a police officer need not know that the item in plain view is contraband or evidence of a crime; rather, it is sufficient that probable cause exists to associate the property with criminal activity.
In this case, Officer Warnimont and Officer Hackworth testified that, based on their training and experience, they recognized the substances in the two bags behind the refrigerator to be controlled substances. That testimony, as well as the manner in which the bags were being stored behind the refrigerator, adequately support a finding that the officers readily recognized and identified the items at issue as illegal drug evidence.
In his merit brief, Mr. Frisbie also asserts in passing that the officers’ moving of the refrigerator to retrieve the second bag of drugs was an additional, unlawful search. However, Mr. Frisbie cites no law in support of his claim that the plain view doctrine prohibits such action. While the law may prohibit manipulating or moving an object to initially determine if that object is contraband or evidence of a crime – see, e.g., Arizona v. Hicks, 480 U.S. 321 (1987) – we find no authority that prohibits moving an object in order to collect an item of contraband in plain view, assuming the officers, as here, are lawfully in a position to do so.
Holding
Accordingly, for all of those reasons, we find that the trial court did not err in determining that the plain view exception to the general search warrant requirement was applicable to the two bags of drugs observed behind the refrigerator and then seized by the police in this case without a warrant.
Having found no error prejudicial to Mr. Frisbie in the particulars assigned and argued, the assignment of error is overruled and the judgments of the Hancock County Court of Common Pleas are affirmed.
Information for this article was obtained from State v. Frisbie, 2023 – Ohio – 881 and Findlay Police Report #2021-00009878 that was obtained through a public records request.
This case was issued by the Third District Appellate Court and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.
Lessons Learned:
- What is an Exigent Circumstance? It is an actual and on-going emergency that permits law enforcement to bypass the warrant requirement of the Fourth Amendment and immediately enter a building without consent. There are three, four or five Exigent Circumstances in Ohio, depending on you count. There is Fresh Pursuit, Evidence Destruction and Danger. Danger includes both danger inside the home and danger outside the home. Danger outside the home is a paper-thin exception, that indicates law enforcement is in such great danger on the outside of the home he must immediately force entry. See Ryburn v. Huff, 132 S.Ct. 987 (2012) for more information on this exception. The fifth Exigent Circumstance exists in Ohio through legislation [all the previous exceptions were created by case law]; O.R.C. §2933.33 Search of Premises for Illegal Manufacture of Methamphetamine.
- In this case Findlay Police Officers Hackworth and Warnimont should be highly commended to recognize that there was a valid Exigent Circumstance and immediately force entry, most especially Officer Hackworth since he was the FTO!
- Frisbie may not have been charged and convicted with Possession of Cocaine F-1 amount and a ten-year sentence but for Covid modifications to arrest. Once the officers had cuffed Mr. Frisbie and cleared the apartment of others, he likely would have been removed, placed in a cruiser and taken to jail. However, the Covid restrictions mandated a summons. While processing this style of arrest, the officers remained in the apartment to discover the cocaine baggies playing peek-a-boo. Once the officers gaze locked on the baggies, Mr. Frisbie immediately stated “That’s not mine.”, which is interesting, since if he didn’t claim ownership of the cocaine, how would he know it was nestled behind the refrigerator?
- The court did well to explain and apply the Plain View Doctrine established in Horton v. California, 496 U.S. 128 (1990) as it is a three-part test: (1) Officers must be legally on the premises from where the observation is made; (2) Officer must not violate the Fourth Amendment to make the observation and (3) The incriminating nature of the item must be immediately apparent. Here the officers comported with each of the three elements of the Plain View Doctrine.
- One of the most interesting aspects of this case is when the officers moved the refrigerator to obtain the baggies of cocaine and the freezer door flew open revealing the locked safe. In 1987 the U.S. Supreme Court previously held that the Plain View exception is violated if an officer moves an item as that would violate the second prong of Horton; “[T]he distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches is much more than trivial for purposes of the Fourth Amendment.” Arizona v. Hicks, 480 U.S. 321, 325 (1987). *The Third District Court erred when it listed the Hicks case year as 2010 when it was 1987 – a scrivener’s error. Here, the officers were moving the refrigerator when the freezer door flew open. However, the reason the officers were moving the refrigerator was to obtain the cocaine baggies behind it not to get a better view inside the freezer. Well done Third District Judges Waldick, Willamowski and Zimmerman!
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