OH8: Although officers were invited in by apparent consent, protective sweep was justified in dark room with a closet

Officers received a call about a person being held at gunpoint at a house. Dispatch noted to itself that this might be a prank call, but didn’t tell the officers that. They got to the house and were let in. It was almost completely dark inside, and the two inside said they were alone. The officer opened a closet behind him, and defendant was in the pitch black closet. It went downhill from there, and defendant was arrested for being a FIPF. The patdown was legal because the darkness and the lie about a man hiding in the closet was reasonable suspicion on the totality. [See why the protective sweep doctrine exists?] State v. Wagner, 2014-Ohio-5548, 2014 Ohio App. LEXIS 5357 (8th Dist. December 18, 2014)*:

[*P16] We are aware that the dispatch here was based on an anonymous tipster, the least reliable among different classes of informants. However, whether an anonymous tip provides reasonable suspicion or probable cause is determined by the totality of the circumstances. Navarette v. California, 572 U.S. __, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014).

[*P17] Here, although there appeared to be a notation in the dispatcher’s note that the call might be a prank, the officers were not aware of that uncertainty. The officers believed they were responding to a Code One dispatch, the highest priority call, involving the presence of a gun and a person in imminent harm’s way. The courts have noted that “‘[t]he business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation of the judicial process.'” State v. Johnson, 8th Dist. Cuyahoga No. 96983, 2012-Ohio-1344, ¶ 11, quoting Wayne at 212. The entry, if indeed without consent as Wagner claims, was justified by the officers’ reasonable belief that entering the residence was necessary to investigate what appeared to be an emergency. See Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037 (the court cited with approval a Florida Supreme Court case that held that the warrantless entry and search of an apartment in response to a call indicating that a person in the apartment had threatened to kill himself was lawful because of exigent circumstances indicating the need for help).

[*P18] Once the officers entered the apartment, their suspicion of a potential criminal activity was not dispelled. They saw a dark apartment in disarray and a male standing in the darkness. There was no TV watching or other usual household activities going on in the apartment. Immediately after the two men in the apartment assured the officer that no one else was in the apartment, the officer opened a door behind him — understandably to secure the officers’ safety — a third man was found standing inside the pitch-dark closet, contradicting the two men’s representation. Under these circumstances, the officers’ belief they had an immediate need to protect themselves was prudent and not unreasonable. They were, of necessity, entitled to search the three men for weapons to ensure their own safety. As the Supreme Court of Ohio cautioned, “‘[w]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.'” State v. Andrews, 57 Ohio St.3d 86, 89, 565 N.E.2d 1271, quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).