Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas Trial No.
T. Deters, Hamilton County Prosecuting Attorney, and Melynda
J. Machol, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Joshua A. Thompson and Demetra Stamatakos, Assistant Public
Defenders, for Defendant-Appellant.
Defendant-appellant Andre Buck appeals the judgment of the
Hamilton County Common Pleas Court convicting him, after a
jury trial, of the kidnapping of Tyrell George.
Buck was indicted for kidnapping, with firearm
specifications, and for having a weapon while under a
disability. Three codefendants, Anthony Barrow, Timothy
Watson, and Lonnie Rucker, were also indicted for the
Buck filed a motion to suppress, which the trial court
denied. Buck and Barrow were tried together. The jury found
Buck guilty of kidnapping, but acquitted him of the gun
specifications and the weapon-under-disability charge. The
trial court sentenced Buck to 11 years in prison.
Buck now appeals. In six assignments of error, he challenges:
(1) the denial of his motion to suppress; (2) the denial of
his rights to due process by the prosecutor; (3) the denial
of his rights to due process by the trial court; (4) the
admission of certain photographs; (5) his sentence; and (6)
the weight and sufficiency of the evidence. We conclude that
the court committed reversible error when it failed to
properly award jail-time credit, but we affirm the trial
court's judgment in all other respects.
Motion to Suppress
In his first assignment of error, Buck argues that the trial
court erred by denying his motion to suppress. He contends
that the court failed to apply the appropriate legal standard
when it determined that exigent circumstances existed to
justify the warrantless search of his person and his
apartment, and the search of the contents of his cell phone.
He asserts that the exigent-circumstances exception to the
requirement for a warrant requires both probable cause and
Appellate review of a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 787 N.E.2d 71, ¶ 8. We
must accept the trial court's factual findings if they
are supported by competent and credible evidence, but we
review the court's legal conclusions de novo.
The Suppression Hearing. At the hearing on
Buck's motion to suppress, Cincinnati Police Detective
Bill Hilbert testified that Tyrell George was kidnapped on
February 6, 2014, between 7:00 and 8:00 p.m. The kidnappers
called George's brother Timothy Kellam and demanded $100,
000 for his return. They warned Kellam that if he failed to
pay the ransom money, George would be killed. In one of the
ransom calls, George told Kellam that the kidnappers had shot
By 10:00 p.m., Kellam worked with Detective Hilbert and other
investigators who monitored every ransom call made by the
kidnappers to Kellam. During the night of the 6th and the
morning of the 7th, Kellam received numerous ransom calls
from two different men who continually made threats to hurt
or kill George. Throughout the night, the police covertly
worked with Kellam so that it would appear to the kidnappers
that Kellam was complying with their demands. After several
hours, however, the police became concerned that the
kidnappers suspected police involvement and that they would
act on their threats to kill George.
At one point, the kidnappers demanded that Kellam meet them
at a Shell gas station at Colerain Avenue and Hopple Street.
Two undercover officers, one of whom dressed like Kellam,
drove Kellam's car to the Shell station and parked at the
agreed meeting place. For the next two and a half to three
hours, the kidnappers demanded in multiple phone calls to
Kellam that he move his vehicle to different locations, but
Kellam, at the instruction of the police, told the kidnappers
he would not do so.
Then Detective Hilbert instructed the undercover officers in
Kellam's car to drive it around the block. As they did
so, the kidnappers, who were speaking to Kellam on the phone,
identified a nearby street by name and told Kellam to change
lanes immediately. With that, Detective Hilbert knew that the
kidnappers were conducting counter-surveillance to the police
surveillance on both the Shell station and on Kellam's
car. The fact that the kidnappers had the foresight to
operate in that manner heightened police concern for
According to Detective Hilbert, the police still had no idea
where George was. Hoping that George was somewhere near the
Shell station, police were looking for suspicious things in
that area. Hilbert said, "[O]ur number one goal right
then [was] to find Mr. George and find him alive."
The police identified two telephone numbers from which ransom
calls had been made to Kellam's phone, one of which was
(513) 498-2051, and made an "emergency exigent
request" to Cincinnati Bell for records pertaining to
that number. In addition, Cincinnati Police Officer Timothy
Bley of the fugitive-apprehension unit testified that his
unit had "access to a lot of computer programs and
databases that the average police officer wouldn't have
access to and we use those sometimes to track people [and]
try to locate them." He testified that on the morning of
February 7, 2014, using information from various databases,
police were able to track phone calls to (513) 498-2051, and
"by tracking those people backwards, " were able to
identify Buck as the user of the cell phone. This involved
linking people and their connections to each other by the use
of various databases. In analyzing this information, the
police were able to connect Buck as the user of the phone.
Police identified Buck's address as 2872 Montana Avenue,
Apartment 4, and learned that the (513) 498-2051 phone was
"pinging" from a nearby cell tower that morning.
Police knew that recovery of that phone was vital to locating
George, and that the delay necessitated by the process of
obtaining a search warrant could have impaired police
attempts to locate George and could have placed George in
Officer Bley and other officers went to Buck's apartment
and knocked on the door. Buck answered the door. He was alone
in the apartment. Officers entered the apartment to look for
George to make sure that he "wasn't lying inside
tied up or anything like that." George was not inside.
Police recovered a cell phone from Buck, and dialed (513)
498-2051 to ensure that it was the phone that they were
looking for. Buck's cell phone rang.
Meanwhile, during the time that police officers were at
Buck's apartment, Kellam was at the police station on the
phone with another one of the kidnappers.
Police officers took Buck and his phone to Detective Hilbert
at the homicide unit. The police asked Buck for his
assistance in locating George, but Buck would not cooperate.
In speaking with Buck, Detective Hilbert recognized
Buck's voice from the numerous ransom calls he had
At that point, police still did not know where George was,
but they were aware that a second kidnapper was still
contacting Kellam for ransom money. Detective Hilbert
believed that the danger to George had increased: "[W]e
were pretty desperate at that point." So the police made
another emergency request to Cincinnati Bell to download
electronic data from Buck's cell phone. According to
Detective Hilbert, the police were concerned that obtaining a
search warrant would cost valuable time and might increase
the danger to George. The detective testified that
"every second counted."
Warrantless Search of Buck and His Home.
first argues that exigent circumstances did not justify the
warrantless search of Buck and his apartment.
"[W]arrants are generally required to search a
person's home or his person unless the 'exigencies of
the situation' make the needs of law enforcement so
compelling that the warrantless search is objectively
reasonable under the Fourth Amendment." Brigham City
v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164
L.Ed.2d 650 (2006), quoting Mincey v. Arizona, 437
U.S. 385, 393-394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
Where exigent circumstances exist, a warrantless search is
reasonable because "there is a compelling need for
official action and no time to secure a warrant."
Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942,
56 L.Ed.2d 486 (1978).
Exigent circumstances allow a warrantless entry into a
residence if probable cause to arrest or to search exists.
See State v. Robinson, 103 Ohio App.3d 490, 496, 659
N.E.2d 1292 (1st Dist.1995), citing Steagald v. United
States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38
(1981); State v. Upton, 1st Dist. Hamilton No.
C-050076, 2006-Ohio-1107, ¶ 17; State v.
Martin, 1st Dist. Hamilton No. C-040150, 2004-Ohio-6433,
¶ 22; State v. Sheppard, 144 Ohio App.3d 135,
141, 759 N.E.2d 823 (1st Dist.2001). Police may make a
warrantless entry into a residence to prevent the imminent
destruction of evidence, State v. Grant, 67 Ohio
St.3d 465, 470, 620 N.E.2d 50 (1993), or to engage in
"hot pursuit" of a fleeing suspect, Middletown
v. Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330 (2002),
syllabus; State v. Mitchem, 1st Dist. Hamilton No.
C-130351, 2014-Ohio-2366, ¶ 24.
The United States Supreme Court and the Supreme Court of Ohio
have recognized a narrower subset of exigent circumstances
where law enforcement officers need to respond to emergency
situations to protect people from death or serious injury.
Brigham City at 403; State v. Dunn, 131
Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 21.
The "emergency-aid" exception allows police to
enter a home without a warrant and without probable
cause when they reasonably believe,
based on specific and articulable facts,
that a person within the home is in need of immediate aid.
See Mincey at 392; State v. Applegate, 68
Ohio St.3d 348, 349-350, 628 N.E.2d 942 (1994); State v.
Sladeck, 132 Ohio App.3d 86, 88, 724 N.E.2d 488 (1st
Dist.1998); State v. Secriskey, 9th Dist. Summit
Nos. 28093 and 28094, 2017-Ohio-4169, ¶ 9; State v.
Fisher, 5th Dist. Fairfield No. 13 CA 35,
2014-Ohio-3029, ¶ 39, citing State v. Gooden,
9th Dist. Summit No. 23764, 2008-Ohio-178, ¶ 6.
Nevertheless, a warrantless entry justified by the
emergency-aid exception must be strictly circumscribed by the
exigency that initially justified it, and "once the
emergency has been alleviated, further intrusion must be
sanctioned by a warrant." State v. Newell, 2d
Dist. Montgomery No. 21567, 2006-Ohio-5980, ¶ 13.
To determine whether police faced an emergency that justified
acting without a warrant, courts look to the totality of the
circumstances. Missouri v. McNeeley, 569 U.S. 141,
149, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), citing
Brigham City at 406. To that end, one important
consideration in determining whether an exigency existed is
the nature of the underlying crime. See Welsh v.
Wisconsin, 466 U.S. 740, 754, 104 S.Ct. 2091, 80 L.Ed.2d
Police officers do not need "ironclad proof of a
life-threatening injury to invoke the emergency-aid
exception. Dunn at ¶ 19, quoting Michigan
v. Fisher, 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d
410 (2009). The question as to whether exigent circumstances
exist is viewed through the eyes of a reasonable police
officer. Id., citing Brigham City, 547 U.S.
at 404, 126 S.Ct. 1943, 164 L.Ed.2d 650.
Here, the police had an objectively reasonable basis for
believing that the still-missing victim had been shot and
would be killed based on the facts available to them and the
escalating kidnappers' ransom demands. The police
reasonably believed that both the injured victim whose life
was in jeopardy and the (513) 498-2051 cell phone used by a
kidnapper to make ransom calls to the victim's brother
were in the apartment. Even though the victim was not found
in the apartment, the police reasonably believed that the
cell phone was essentially a lifeline to bring him home
safely. Under the totality of the circumstances, therefore,
the warrantless search of Buck's home and person was
justified by the emergency-aid exception. And contrary to
Buck's assertion, the state was not required to also
demonstrate probable cause that he was involved in the crime
before the police entered his home. See Gooden, 9th
Dist. Summit No. 23764, 2008-Ohio-178, at ¶ 6 (the
emergency-aid exception allows officers to enter a home
without a warrant and without probable cause).
Warrantless Search of Buck's Cell-Phone Data. In
the context of cell phones, police officers must generally
obtain a warrant to search data contained in a cell phone,
even if the phone was seized incident to an arrest. See
Riley v. California, __U.S.__, 134 S.Ct. 2473, 2493, 189
L.Ed.2d 430 (2014); see also State v. Smith, 124
Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, syllabus. But
the United States Supreme Court recognized in Riley
that the exigent-circumstances exception may justify the
warrantless search of a cell phone's data:
Such exigencies could include the need to prevent the
imminent destruction of evidence in individual cases, to
pursue a fleeing suspect, and to assist persons who are
seriously injured or are threatened with imminent injury. * *
* In light of the availability of the exigent circumstances
exception, there is no reason to believe that law enforcement
officers will not be able to address some of the more extreme
hypothetical that have been suggested: a suspect texting an
accomplice who, it is feared, is preparing to detonate a
bomb, or a child abductor who may have information about the
child's location on his cell phone.
Riley at 2494; Smith at ¶ 29. See
United States v. Fifer, 863 F.3d 759, 766 (7th
Cir.2017); United States v. Gilliam, 842 F.3d 801,
805 (2d Cir.2016).
In this case, the warrantless search of Buck's cell phone
was justified by exigent circumstances where the
still-missing kidnapping victim's life was in danger, and
the police reasonably believed that the phone had been used
in the kidnapping operation. The exigency did not evaporate
upon the recovery of Buck's cell phone and his arrest. On
the contrary, those circumstances led the police to believe
that the peril to the kidnapping victim had increased because
a second kidnapper was still trying to negotiate a ransom
from Kellam and would surely discover that his accomplice was
in police custody. The police had probable cause to search
the cell phone under these exigent circumstances and the
exigent circumstances had not abated (which would have
required a warrant).
Consequently, we hold that the trial court properly concluded
that the warrantless searches of Buck, his home, and his cell
phone were justified by exigent circumstances. We overrule
the first assignment of error.
and Sufficiency of the Evidence
For ease of discussion, we address the remaining assignments
of error out of order. In his sixth assignment of error, Buck
argues that his conviction for kidnapping was against the
manifest weight of the evidence and based upon insufficient
evidence. Buck does not claim that the state failed to prove
that the kidnapping of George occurred. Rather, he asserts
that the state failed to prove that he was involved in the
Evidence Presented at Trial.
jury trial, the state presented the testimony of Tyrell
George, his brother Timothy Kellam, codefendant Lonnie
Rucker, a telephone-records custodian, forensic specialists,
and multiple investigators, including Detective Hilbert and
Officer Bley, in addition to numerous exhibits.
Telephone records revealed that on the morning of February 6,
2014, Buck and his codefendant Anthony Barrow communicated
about 20 times, and in one text, Buck had asked Barrow,
"Babysitter still on dek?" The term babysitter
referred to a person who watched over a kidnapped victim to
make sure he would not escape, while other kidnappers secured
Later that day, Barrow called George on the
pretense of wanting to buy marijuana. George did not know
Barrow, but Barrow convinced him that he had bought marijuana
from George before. The two exchanged calls and agreed to
meet. When George met up with Barrow, he got into
Barrow's van, where he was assaulted by Barrow and a
second man. The men bound George with duct tape, wiped his
clothing and neck with bleach, and then drove away.
George was moved into a second van where two more kidnappers,
Timothy Watson and Lonnie Rucker, "babysat" him
through the night and into the next day.
Rucker testified that Watson had contacted him on February
6th about being a babysitter. That night, Rucker picked up
Watson and drove to a spot where a person was tied up in the
back of a van. Watson said they had to sit and watch the
victim until the other kidnappers came back with the money.
Communications continued between Kellam and the kidnappers.
The officers became more and more ...