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.