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State v. Buck

Court of Appeals of Ohio, First District, Hamilton

October 20, 2017

STATE OF OHIO, Plaintiff-Appellee,
ANDRE BUCK, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1400664-A

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson and Demetra Stamatakos, Assistant Public Defenders, for Defendant-Appellant.


          Myers, Judge.

         {¶1} 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.

         {¶2} 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 kidnapping.

         {¶3} 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.

         {¶4} 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.

         Buck's Motion to Suppress

         {¶5} 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 exigent circumstances.

         {¶6} 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. Id.

         {¶7} 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 him.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 George's safety.

         {¶11} 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."

         {¶12} 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.

         {¶13} 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 greater danger.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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 monitored.

         {¶18} 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."

         {¶19} Warrantless Search of Buck and His Home.

         Buck 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).

         {¶20} 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.

         {¶21} 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.

         {¶22} 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 732 (1984).

         {¶23} 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.

         {¶24} 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).

         {¶25} 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).

         {¶26} 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).

         {¶27} 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.

         Weight and Sufficiency of the Evidence

         {¶28} 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 kidnapping.

         {¶29} Evidence Presented at Trial.

         At the 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.

         {¶30} 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 ransom money.

         {¶31} 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.

         {¶32} 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.

         {¶33} 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.

         {¶34} Communications continued between Kellam and the kidnappers. The officers became more and more ...

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