Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013):
[*P20] The supreme court's opinion in Flinchum contains a strongly-worded dissent in which Justice Pfeifer distinguishes Santana from Flinchum, based on the seriousness of the offense and the "realistic expectation" in Santana that delay in executing a search would result in the destruction of evidence (heroin and marked money), a concern which was not present in Flinchum. It also emphasizes that "the circumstances of a particular situation must be grave * * * to merit a lifting of [Fourth Amendment] protections." Flinchum, 95 Ohio St.3d at 47 (Pfeifer, J., dissenting), citing Welsh, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (involving exigent circumstances). Justice Pfeifer observed that, when warrantless arrests in the home are at issue, hesitation in finding a basis for acting without a warrant "is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. * * * When the government's interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Id., citing Welsh at 750. The dissent concluded that the government had not successfully rebutted the presumption of unreasonableness in Flinchum, because only a minor traffic offense was at issue, and that the arrest of "a mere tire spinner" did not justify the chipping away of a well-established Fourth Amendment right.
[*P21] We share the concerns expressed in the Flinchum dissent. Although we are bound by supreme court precedent, we have reservations about permitting police officers to chase a suspect who is known to have committed only a minor traffic violation and to forcibly enter into his house, in the absence of exigent circumstances. This is a circumstance where a potential traffic violation developed into a chase of the driver, which led to the forcible entry of that person's home, which turned into a protective sweep of the home, which resulted in the plain view of contraband, which generated a search warrant, which resulted in the arrest of a second person, which resulted in the discovery of drugs. This may be the unusual situation where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule.
[*P22] We see no reason why, in Jeffrey Lam's case, the officers could not have waited outside the house while they obtained a search warrant or checked for outstanding warrants for Jeffrey. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect's house in order to make a routine felony arrest. As discussed above, Payton and other decisions have recognized an exception for "exigent circumstances." Id. at 1386. Similarly, R.C. 2935.12 only permits entry by force to make a warrantless arrest if exigent circumstances exist. State v. Boyd, 2d Dist. Montgomery No. 13425, 1993 WL 169104 (May 21, 1993).
[*P23] However, the principle from which any exceptions to the warrant requirement emanate is reflected in the oft-quoted remarks of William Pitt in 1763: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!" Payton at 1388, fn. 54, citing Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Indeed, President John Adams traced the origins of our independence from England to James Otis's 1791 argument against British writs of assistance, where he declared that a "man's house is his castle." United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1072, 108 L.Ed.2d 222, fn. 8 (1990) (Brennan, J., dissenting). It may be that Jeffrey would have temporarily "defeated" his citation for the traffic offense by "escaping to a private place," but weighing the immediate serving of a citation for a non-jailable minor misdemeanor against the Fourth Amendment's protection of the home, we would make what should be the obvious choice.
[*P24] However, the facts surrounding the chase of Jeffrey Lam are not legally distinguishable from the facts in Flinchum. Thus, we are obligated to follow our understanding of the majority's opinion in Flinchum, as the trial court did, and to conclude that the police officers lawfully entered into the house. We hope that the Ohio Supreme Court will reconsider or clarify its position.
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