A police officer came upon a cell phone tower at night where the door was open and a car was parked outside. He could hear music inside. He came in and asked what was going on and saw a bong. Defendant was performing service on the tower at night to avoid service interruptions. The entry could not be justified on exigent circumstances. State v. Haputa, 2020-Ohio-6925, 2020 Ohio App. LEXIS 4778 (5th Dist. Dec. 28, 2020) (2-1):
[*P17] In overruling the motion to suppress, the trial court relied on State v. Sladeck, supra, and on this Court’s decision in State v. Head, 5th Dist. Stark No. 2017CA00051, 2017-Ohio-7473. We find the facts in those cases distinguishable from the facts in the instant case. In Sladeck, police received a phone call of a burglary in progress with someone possibly still inside the home. 132 Ohio App. 3d at 87. The caller reported seeing two juveniles kick in a basement window. Id. While waiting at the scene for a K9 unit to arrive, the officer observed a broken basement window, and a shelf inside the basement knocked down. Id.
[*P18] In Head, supra, police received a call from neighbors saying they observed multiple subjects with flashlights inside a home, which was vacant because the current owner was deceased. 2017-Ohio-7473 at ¶4. The defendant walked outside the house, and was detained until backup officers arrived. Id. at ¶5. The defendant was asked if others might be inside, and he responded they might be. Officers then did a sweep of the home, finding a methamphetamine laboratory either functioning or in the process of construction. Id.
[*P19] In both Sladeck and Head, a report of a crime in progress was received by police, and upon further investigation at the scene, police discovered specific facts indicating a crime potentially in progress which established exigent circumstances. In contrast, in the instant case, the only fact tending to indicate a crime in progress was the presence of a person at the cell phone tower at a time of night when it was normally empty. Upon approaching the tower, all facts observed by the officers would mitigate against the conclusion a crime was in progress: lights were on, a car was parked in plain view, the gate was open with the lock showing no signs it had been tampered with, the door to the tower was propped open, and music was playing. We find the trial court erred in finding exigent circumstances justified the warrantless entry to the cell phone tower.
[*P20] In so holding, we do not imply police were required to walk away without further investigation. Police could have initiated a consensual encounter with Appellant in order to ensure he was lawfully on the premises by calling out to him or knocking on the door. Upon further investigation, there is a possibility their firsthand observations may have led to probable cause and exigent circumstances, justifying entry into the tower. See State v. Gates, 5th Dist. Stark No. 2019 CA 00153, 2020-Ohio-4027, ¶ 40. However, at the time police in this case entered the cell phone tower, we find they lacked probable cause and exigent circumstances to justify the warrantless entry.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)