OH2: Lifting the flap of a suitcase on a warrantless entry when defendant was in the shower was unreasonable

Officers responded to a domestic abuse call and entered without a warrant and guns drawn when they got no answer. Defendant was in the shower with loud music playing and he did not respond to the officers’ knock or calling out. Instead of going to the bathroom, they lifted the flap of a suitcase laying open and found a gun. The search of the suitcase was without exigent circumstances. State v. Roberson, 2012 Ohio 5106, 2012 Ohio App. LEXIS 4468 (2d Dist. November 2, 2012)*:

[*P25] At the close of the suppression hearing, counsel for the State argued that the exigent circumstance was the weapon itself. Tr. 46. However, the mere presence of firearms does not create an exigent circumstance. United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994); State v. Sharpe, 174 Ohio App.3d 498, 2008 Ohio 267, 882 N.E.2d 960, at ¶ 50 (2d Dist.).

[*P26] Furthermore, we do not agree that the search of the suitcase necessarily would increase officer safety. The search of the suitcase would result in one of two scenarios. First, if a firearm was found in the suitcase, then the firearm had already been secured by the police and therefore the firearm posed no immediate risk to anyone, including the officers. Under this scenario, the search of the suitcase would do nothing to increase officer safety. We acknowledge that the discovery of the gun in the suitcase may have provided the police with additional comfort or relief as they ultimately approached the bathroom to get Roberson to exit. But the search of the suitcase itself in an apartment that had already been secured would not increase officer safety.

[*P27] On the other hand, discovery that the weapon was not in the suitcase would do nothing to secure the safety of the officers “as the whereabouts of the gun would still be unknown.” State v. Simmons, 4th Dist. Highland No. 05CA4, 2006 Ohio 953, ¶ 43. While it is true that the discovery that the gun was not located in the suitcase may have put the officers on heightened alert that Roberson may have the gun on his person in the bathroom, the officers had already been made aware that this was a possibility. Indeed, beginning with their entry into the apartment, the officers had proceeded with their guns drawn, as if Roberson had the gun on his person. This is completely understandable given that police officers often have to proceed with the utmost caution, assuming the worst-case scenario, in order to ensure the protection of the public and themselves. This is especially true when a firearm is involved. While we do not minimize the need for officer safety, we do not agree that the search of the suitcase was necessary or helpful to ensure officer safety in the particular facts of this case.