OH5: Entry permitted by 911 call of unresponsive person; protective sweep factually unjustified

A 911 call about an unresponsive man was justification for a warrantless entry into defendant’s apartment, but no facts justified a protective sweep once inside. Heroin in bedroom suppressed. State v. Levengood, 2016-Ohio-1340, 2016 Ohio App. LEXIS 1227 (5th Dist. March 22, 2016):

[*P27] We find the rationale of Sharpe to be applicable here. In case sub judice, Clark had no positive indication others might be present in appellee’s apartment, and the fact that he didn’t know whether anyone else was present is not a sufficient pretext to sweep the entire apartment. See, State v. Mickey, 8th Dist. Cuyahoga No. 82844, 2003-Ohio-6878, ¶ 18 [no persuasive evidence of any information that area to be swept harbored an individual who posed a threat when officer testified he had no knowledge of who lived in the apartment or who might be present]; State v. Walters, 9th Dist. Summit No. 23795, 2008-Ohio-1466, ¶ 13 [protective sweep not justified when no officer testified anything observed in home suggested another person was present]; State v. White, 175 Ohio App. 3d 302, 2008-Ohio-657, 886 N.E.2d 904, ¶ 24 (9th Dist.) [record does not contain evidence that the officers had any reason to believe that anyone other than defendant was inside the house]; State v. Martin, 8th Dist. Cuyahoga No. 82026, 2003-Ohio-4058, ¶ 13 [only officer to testify admitted there was nothing to suggest any threat of danger when he searched the upstairs bedroom]; State v. McLemore, 197 Ohio App. 3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 13 (2nd Dist.) [“not knowing whether anyone else was inside the residence is an insufficient pretext for a protective sweep to learn whether anyone is in fact inside”].

Caution: Some other courts would permit the quick look through for the cause of a possible overdose.