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State v. Kimble

Court of Appeals of Ohio, First District, Hamilton

July 19, 2019

STATE OF OHIO, Plaintiff-Appellant,
GREGORY KIMBLE, Defendant-Appellee.

          Hamilton County Court Trial No. B-1704865 of Common Pleas.

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

          Roger W. Kirk, for Defendant-Appellee.


          Crouse, Judge.

         {¶1} In its sole assignment of error, plaintiff-appellant state of Ohio appeals the trial court's decision granting defendant-appellee Gregory Kimble's motion to suppress. Because we determine that the trial court was correct in its finding that the community-caretaking exception does not apply to the warrantless search under these facts, we affirm.

         Factual Background and Procedural Posture

         {¶2} Gregory Kimble was homeless and looking for a place to stay. His friend Shanda Cotton told him he could "crash" at her place for $35 per week. Cotton shared a two-bedroom apartment with her 13-month-old son. Her son's bedroom had a crib, twin bed and a closet containing his clothes. Cotton permitted Kimble to sleep on the twin bed in her son's bedroom, and her son slept with her. Kimble moved into the bedroom with several bags and a plastic storage container of his belongings. However, the record shows that Kimble did not have exclusive use of the room because Cotton would put her son down for naps in the crib when Kimble was not there and would go into the room in the mornings when Kimble was sleeping to get her son's clothes.

         {¶3} Kimble and Cotton got into a disagreement a few days after he arrived. Cotton testified she asked Kimble to move out. Because Kimble refused to move out, Cotton called the police and informed them that a man, "G," was staying with her and had a warrant for his arrest. Cotton did not know Kimble's real name but provided a description.

         {¶4} When Officers Schultz and Wells arrived at the apartment building, they saw Kimble outside on the sidewalk and believed he met the description of "G." They asked for his name and he gave them a false name. Since they were unable to verify his name, they kept asking Kimble for his real name. Kimble eventually told them he stayed in apartment 24 and his roommate could verify his name. Schwartz and Wells went to apartment 24, and Cotton answered the door. She said she did not know "G's" real name, but all his belongings were in the bedroom. The officers asked for permission to search for Kimble's identification, and Cotton consented. Officer Shultz began searching through Kimble's bags and immediately found a court paper with Kimble's identifying information.

         {¶5} Cotton then mentioned to the officers that her neighbors believed Kimble was selling drugs because he was meeting people outside the apartment building. With the court paperwork, Officer Schultz verified Kimble's identify and saw that Kimble's open warrant was for a probation violation on a drug-possession case. As seen on Officer Wells's body camera video, Officer Schultz asked Officer Wells, "Do you want to look through other stuff to make sure there's no guns, drugs or craziness? Cause she definitely don't want that in here." Cotton then tells the officers that she has not seen Kimble with drugs or a gun at her apartment. It was at this point that Officers Schultz and Wells began searching through Kimble's bags and his plastic storage container. As he was rummaging through Kimble's plastic storage container, Officer Shultz uncovered a box of bullets. Officer Schultz then stated, "Now I think we're obligated to take a very, very good look, if he's got bullets he's got a gun, right? I would definitely be concerned there's a gun in here, wouldn't you?" Officer Shultz began to search Kimble's other bags for several minutes and eventually located a .357 Smith and Wesson firearm wrapped in black fabric in a closed drawstring bag.

         {¶6} Kimble was arrested on the probation violation warrant and was subsequently indicted for having weapons while under a disability for possessing the .357 Smith and Wesson gun. He filed a motion to suppress the gun based on the warrantless search of his belongings. After two hearings, the trial court granted Kimble's motion. The state now appeals.

         Law and Analysis

         {¶7} "Our review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. We must accept the trial court's findings of fact if they are supported by competent and credible evidence, but we review de novo the application of the relevant law to those facts." In re D.G., 1st Dist. Hamilton Nos. C-160515, C-160516, C-160517 and C-160518, 2017-Ohio-4261, ¶ 7.

         {¶8} The Fourth Amendment to the United States Constitution, and Article I, Section 14, of the Ohio Constitution, prohibit "unreasonable searches and seizures." "Unless an exception applies, warrantless searches are per se unreasonable." State v. Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.)." 'Once a warrantless search is established, the burden of persuasion is on the state to show the validity of the search.'" State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 25, quoting Xenia v. Wallace,37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). "[T]he prosecution bears the burden of * * * show[ing] by a preponderance of the evidence that, under the totality of the circumstances, the warrantless ...

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