OH10: The possibility the dog might eat marijuana was not an exigent circumstance

Defendant was stopped for his license plate being out near his house, and a bag of marijuana was in plain view between his feet. Defendant asked if he could put his dog in the house, and the officer let him, and the officer could see a small quantity of marijuana and a grinder in the living room. There was no reason to believe anyone else was inside, and the entry for a protective sweep was unreasonable. State v. Alihassan, 2012 Ohio 825, 2012 Ohio App. LEXIS 718 (10th Dist. March 1, 2012):

[*P22] We disagree with the state’s contentions. There was no evidence presented that the marijuana and grinder were in danger of destruction or removal. Although Leighty testified he knew there had been prior disturbance calls to the apartment regarding appellant and his girlfriend, he never said that he believed appellant’s girlfriend lived at the apartment, and he admitted that people can have domestic disturbances when they do not live together. Leighty also admitted he heard no voices coming from inside the apartment, the television was not on, and there were no indications that a person was in the apartment. Although Leighty first testified that he heard no noises coming from inside the apartment, he later said he heard “noises” inside, and the noises were from an aquarium. Importantly, Leighty never testified that he believed the noises were made by people inside the apartment.

[*P23] With no evidence of any third parties present in the apartment, there was no risk of destruction of the evidence. Although, conceivably, the dog could have ingested the small amount of marijuana on the table, the grinder would not have been easily destroyed. …

[I resisted the temptation.]