Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No.
0084470 Attorney for Plaintiff-Appellant
B. RHODES, Atty. Reg. No. 0089545, Attorney and
Representative for Defendant-Appellee
1} Pursuant to R.C. 2945.67(A) and Crim.R. 12(K),
the State of Ohio appeals from an order of the Montgomery
County Court of Common Pleas, which granted Michael
Klase's motion to suppress. For the following reasons,
the trial court's judgment will be affirmed.
Facts and Procedural History
2} The evidence at the suppression hearing consisted
of the testimony of Officer Christopher White. His testimony
established the following facts.
3} At 6:18 p.m. on August 27, 2018, Officer White
was dispatched to the residence of Klase's sister, Pam
Snyder, who requested assistance with a mental health
situation involving her brother. Mental health calls require
two officers, and Officer Caleb Lawson also responded to the
scene. Upon arriving, the officers approached Klase, who was
calm and not aggressive. Officer White noticed Snyder
gesturing to him from the corner of the garage, and he went
over to speak with her.
4} Snyder informed Officer White that Klase had been
staying with her for a few days and that he was "not
acting like himself." Snyder reported that Klase was
convinced that there was a conspiracy against him propagated
by the neighbors. Klase had also told Snyder that he had had
an encounter with the police earlier that day during which
the police had shot him, but the bullets went through him
because he was invincible. (Officer White testified that no
such encounter had occurred.) Klase had also mentioned a
woman named Natalie, whom Klase believed was a demonic person
with shapeshifting abilities; Klase was adamant that Natalie
was going to die and that Klase was going to make sure that
it happened that day. Officer White testified that it was
unclear whether Natalie was a real or imagined person.
Officer White stated that Klase told similar information to
5} Officer White testified that he decided to
"pink slip" Klase. White stated that a "pink
slip" involves emergency hospitalization with a 72-hour
hold, pursuant to R.C. 5122.10. White stated that "[a]
pink slip is the equivalent of an arrest but the difference
is instead of going to jail you go to the hospital where you
are evaluated for whatever the issue may be, in this case,
mental illness." According to White, scenarios where it
is appropriate to take someone to be "pink slipped"
include when the person expresses homicidal or suicidal
6} After speaking with Snyder, Officer White
returned to his partner and Klase. White explained to Klase
that the officers would be taking him to the hospital. Klase
originally was adamant that he was not going to go, partly
due to a belief that God would not allow it. Klase sat down
on a cot in the garage and asserted that God would not allow
him to be removed from the cot; Klase told the officers that
they would be stricken down by God if the officers touched
him. The officers removed Klase from the cot without any
difficulty. Klase became cooperative, and the officers walked
Klase to a cruiser without any issues. Officer White stated
that he "cut a deal with [Klase] that [the officers]
wouldn't handcuff him if he remained cooperative all the
way to the hospital."
7} White stated that, because a pink slip is
equivalent to an arrest, the officers searched Klase and went
through his pockets before placing him the back of the
cruiser. The officers found marijuana, a pipe for smoking
marijuana, and a "crack pipe" with black residue,
which he put in an evidence bag. Officer White further stated
that Officer Lawson had found, but did not open, an Altoids
container; that container was also placed in the evidence
bag. Officer White expressly testified that he conducted a
full search, not a pat-down for weapons. He stated that,
although Klase was not under arrest due to suspicion of
criminal activity, a "pink slip" is treated the
same as an arrest.
8} Upon arriving at the hospital, the officers took
Klase to an assigned room. Hospital personnel requested that
Klase change out of his clothes and into hospital garments.
Klase's clothes were placed in a hospital property bag.
According to White, per policy, the officers collected
Klase's property and placed it off to the side to be
provided to the hospital police. Officer White stated that
the property would be inventoried by the Dayton officers
and/or hospital police. White testified that they decided to
help the hospital police with the inventory, and he noticed
that Klase had an Altoids container that neither he nor
Officer Lawson had opened during the prior search. White
opened the tin and found what appeared to be crystal
9} Officer White later filed misdemeanor charges for
possession of marijuana and possession of drug paraphernalia
(minor misdemeanors). White requested a summons on the
possession of drug paraphernalia based on the crack pipe, but
he did not know if charges had been filed. White testified
that he did not arrest Klase for a criminal offense.
10} On November 6, 2018, Klase was indicted for
aggravated possession of drugs (methamphetamine), a felony of
the fifth degree. Klase moved to suppress the drugs, and the
trial court conducted a hearing during which Officer White
testified. The parties filed post-hearing memoranda. In its
memorandum, the State asserted that the officers had probable
cause "to arrest" Klase under R.C. 5122.10 and
possibly for aggravated menacing based on his comments; the
State claimed that the search of Klase was authorized as a
search incident to a lawful arrest. The State further argued
that the subsequent search of the Altoids canister was
permissible pursuant to inventory procedures.
11} The trial court granted the motion to suppress,
concluding that the State had failed to meet its burden of
proving the validity of the warrantless searches for three
reasons. The court first concluded that the officers'
search did not constitute a search incident to a lawful
arrest. It explained:
This argument is flawed for the reason the Defendant Klase
was not placed under "arrest" under R.C. 5122.10.
By the very terms of this statute, Klase was taken "into
custody," not in connection with a criminal charge, but
for the noncriminal purpose of "being taken for
examination by mental health professionals at a specified
mental health facility identified by name." R.C. 5122.10
(C). Indeed, the person taken "into custody"
pursuant to this statute must be advised "that the
custody-taking is not a criminal arrest." Id.
The State has offered no case law authority in support of the
proposition that the "Search Incident to Arrest"
Doctrine, which requires an arrest based upon probable cause
that the defendant committed a criminal offense, extends to
an administrative, noncriminal "custody-taking."
Furthermore, R.C. 5122.10 does not itself authorize a
warrantless search of the person taken "into
12} Second, the trial court concluded that the
officers did not have probable cause to arrest Klase for
13} Third, the trial court concluded that the State
failed to show that the warrantless search was pursuant to a
standardized police department policy for inventory purposes.
The court noted that the officer testified that whenever he
"pink slips" an individual, he conducts an
"inventory search" of the person's belongings
before transferring the belongings to the hospital. The court
further noted, however, that the officer "never
testified the Dayton Police Department has a standardized,
routine policy for such inventory searches, what that policy
is, and how he acted in conformity with that standardized
14} The State appeals from the trial court's
ruling. Its sole assignment of error states, "The trial
court erred in finding that the warrantless search of
defendant was in violation of the Fourth Amendment and in
suppressing the State's evidence."
Review of Suppression Decision
15} In ruling on a motion to suppress, the trial
court "assumes the role of the trier of fact, and, as
such, is in the best position to resolve questions of fact
and evaluate the credibility of the witnesses."
State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d
Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30.
Accordingly, when we review suppression decisions, we must
accept the trial court's findings of fact if they are
supported by competent, credible evidence.
Retherford at 592. "Accepting those facts as
true, we must independently determine as a matter of law,
without deference to the trial court's conclusion,
whether they meet the applicable legal standard."
16} The Fourth Amendment to the United States
Constitution protects individuals from unreasonable searches
and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). Under the
community-caretaking/emergency-aid exception to the Fourth
Amendment warrant requirement, a law-enforcement officer with
objectively reasonable grounds to believe that there is an
immediate need for his or her assistance to protect life or
prevent serious injury may conduct a
community-caretaking/emergency-aid stop. State v.
Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d
1037, ¶ 26.
17} Community caretaking functions are
"divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
criminal statute." Cady v. Dombrowski, 413 U.S.
433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Accordingly,
Ohio appellate courts generally have held that police
officers are not required to possess reasonable articulable
suspicion of criminal activity when exercising community
caretaking functions/emergency aid. E.g., State v.
Pattin, 10th Dist. Franklin No. 17AP-575,
2018-Ohio-3876, ¶ 10; State v. Norman, 136 Ohio
App.3d 46, 54, 735 N.E.2d 953 (3d Dist.1999).
18} "The touchstone of the Fourth Amendment is
reasonableness." Florida v. Jimeno, 500 U.S.
248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Whether a
search is reasonable under the Fourth Amendment depends upon
the particular facts and circumstances, viewed objectively by
examining the totality of the circumstances. State v.
Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821,
¶ 14. To assess the reasonableness of a search, courts
must balance the need for the search against the invasions
which the search entails. See Terry at 20-21;
State v. Polk, 150 Ohio St.3d 29, 2017-Ohio-2735, 78
N.E.3d 834; Delaware v. Prouse, 440 U.S. 648, 654,
99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ("[T]he
permissibility of a particular law enforcement practice is
judged by balancing its intrusion on the individual's
Fourth Amendment interests against its promotion of
legitimate governmental interests."). In general,
warrantless searches are per se unreasonable, subject to only
a few specific well-established exceptions. Leak at
¶ 15, citing Arizona v. Gant, 556 U.S. 332,
338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), citing Katz
v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967).
Nature of Klase's Detention
19} The State acknowledges in its reply brief that
Klase was not arrested pursuant to criminal activity and that
individuals subject to emergency civil commitment, such as
Klase, are entitled to Fourth Amendment protections. At issue
is the scope of those protections.
20} Under R.C. 5122.10,  a police officer may take a
person into custody and immediately transport him or her to a
hospital if the police officer "has reason to believe
that the person is a mentally ill person subject to
hospitalization by court order under division (B) of section
5122 .01 of the Revised Code, and represents a substantial
risk of physical harm to himself or others if allowed to
remain at liberty pending examination." See
former R.C. 5122.10; In re J.L, 2d Dist. Montgomery
No. 26938, 2016-Ohio-5649, ¶ 17.
21} R.C. 5122.10 expressly states that a person
subject to emergency hospitalization under that section is
not under arrest. The statute provides that "[a] person
taking the respondent into custody pursuant to this section
shall explain to the respondent: the name and professional
designation and affiliation of the person taking the
respondent into custody; that the custody-taking is not a
criminal arrest; and that the person is being taken for
examination by mental health professionals at a specified
mental health facility identified by name." (Emphasis
added.) Former R.C. 5122.10.
22} Moreover, R.C. 5122.29 specifies certain rights
to which "all patients hospitalized or committed
pursuant to" R.C. Chapter 5122 are entitled. Those
rights generally include, among others, the right to
communicate freely with the patient's counsel and
physicians; to receive visitors, make telephone calls, and
send letters; to wear the patient's own clothes and
maintain his or her appearance according to personal taste;
to keep and use personal possessions, including toilet
articles; to have individual storage space, spending money,
and reading materials (without censorship); and to have
reasonable privacy, to have social interaction with
individuals of either sex, and to the free exercise of
religious worship. R.C. 5122.29 further ...