Court of Appeals of Ohio, First District, Hamilton
Hamilton County Court Trial No. B-1704865 of Common Pleas.
T. Deters, Hamilton County Prosecuting Attorney, and Alex
Scott Havlin, Assistant Prosecuting Attorney, for
W. Kirk, for Defendant-Appellee.
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.
Background and Procedural Posture
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.
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.
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.
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.
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.
"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,
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 ...