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Date: 07-05-2020

Case Style:


Case Number: 28441

Judge: Jeffrey M. Welbaum


Plaintiff's Attorney: SARAH E. HUTNIK

Defendant's Attorney:

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{¶ 2} In the evening hours of October 12, 2018, Dayton Police Officers Clinton
Evans and Steven Ettinger were en route to investigate a reported argument between
people in an alleyway near an apartment building at 603 Rockford Avenue. A woman
flagged down the officers and led them to the building.
{¶ 3} Upon arrival, the woman informed the officers that her husband’s company
vehicle had broken down in an alley adjoining an apartment building on Rockford Avenue.
At some point, a man emerged from the front door of the apartment building and began
yelling at them to move the vehicle. When she told the man the vehicle was inoperable,
he threatened her and her husband with a knife and slashed the vehicle’s tires. The
woman identified the assailant as an African-American male wearing a white t-shirt and
blue jeans. The couple left to seek help from the police, and the assailant re-entered the
apartment building through the front door.
{¶ 4} The officers went to the parking lot on the other side of the building to
investigate. There they found the company vehicle with four flattened tires. Officer
Ettinger noticed lights on in the upstairs apartment. He could make out the shadow of a
figure traversing the room behind the blind-drawn windows. The unit was later determined
to be apartment 3.
{¶ 5} The officers attempted to gain entry though the building’s front entrance, but
found it to be secured. Eventually, a female resident heard the officers’ knocking and
came to the front door. The officers informed her they were investigating an incident that
occurred in the parking lot. The resident indicated she was the anonymous caller who
had heard the argument in the alley and summoned the police. She did not know anyone
who matched the description of the knife-wielding man, but offered that someone had
recently moved into apartment 3 upstairs. The officers asked if they could enter the
building to continue their investigation. The female resident unlocked the front door and
allowed them to enter.
{¶ 6} The officers ascended the stairs toward apartment 3. Officer Ettinger
maintained a position at the first landing, while Officer Evans proceeded to the second
landing, where apartment 3’s front door was located. Evans could hear someone
speaking inside the apartment, but could not tell whether the man was addressing
someone on the phone or in the apartment.
{¶ 7} Officer Evans knocked on the front door. A male voice responded, “Who the
f*ck is at my door?” The officer replied, “It’s the Dayton Police.” Ten to fifteen seconds of
silence elapsed, after which the man inside repeated, “Who the f*ck is it?” Officer Evans
replied, “It’s the Dayton Police.” The same exchange took place five or six times. The final
time, an increasingly-frustrated Officer Evans replied, “It is the f*cking police, open the
door.” At that moment, the door abruptly opened and an African-American man in a white
t-shirt stood pointing a black handgun at Officer Evans’s head. That man was Morrow.
{¶ 8} Officer Evans took a backward step and drew his service weapon, firing three
times. He could no longer see Morrow standing in the open doorway, but could not tell
whether the man had been shot. Evans advanced toward the apartment and peered
inside. He saw Morrow lying on the floor with his back to the door.
{¶ 9} Officer Evans ordered Morrow to show his hands. Morrow said he had been
shot and could not move his hands; he expressed his belief that he was going to die.
Officer Evans indicated his desire to help but emphasized that he needed to confirm
Morrow was no longer armed before entering. Morrow weakly raised each hand. Due to
the positioning of his body, however, Officer Evans could not tell whether he was
concealing a gun or whether the handgun he had been holding was within reach. Officer
Ettinger radioed for a medic.
{¶ 10} Other officers arrived on scene. At Officer Evans’s direction, they breached
Morrow’s apartment through a separate entrance. The officers confirmed that they did not
see a gun near Morrow, at which point Evans entered though the front door. He testified
that his purpose in entering the apartment at that point was to render aid to Morrow, as
per standard policy. Evans observed a black handgun laying on the ground next to the
doorframe at the front entrance to the apartment.
{¶ 11} Morrow sustained a gunshot wound to the torso, just below the sternum. He
was transported to a hospital for treatment. Thereafter, Dayton Police obtained a warrant
to search Morrow’s apartment. Items seized included a Hi-Point 9mm pistol, a shell casing
found near the doorway, a copper bullet jacket, a knife, cell phones, clothing, and
marijuana. (State’s Exhibit 6 at Inventory).
{¶ 12} On October 22, 2018, a Montgomery County grand jury levied five charges
of having weapons while under disability against Morrow. He initially entered a not guilty
plea and moved to suppress the evidence seized in connection with the incident.
Following a hearing, the court afforded the parties time to brief the issue of whether Officer
Evans’s order to Morrow to open his door was unlawful, requiring suppression of the
evidence subsequently seized from the apartment.
{¶ 13} The parties submitted their briefs. In a written decision issued on March 18,
2019, the trial court denied Morrow’s motion to suppress. Thereafter, Morrow pled no
contest to all five counts in the indictment. At sentencing, the court noted that Morrow
should be going to prison. Nonetheless, the court agreed with the recommendation in the
presentence investigation report that Morrow be sentenced to community control. The
court’s May 31, 2019 judgment entry reflects this disposition, sentencing Morrow to
community control sanctions for a period of time not to exceed five years. Morrow
II. Suppression of Evidence Seized from Apartment
{¶ 14} In a single assignment of error, Morrow contends that the trial court erred in
denying his motion to suppress. Our review of the facts and circumstances of the case
reveals otherwise.
Standard of Review
{¶ 15} “Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial
court’s findings of fact if they are supported by competent, credible evidence. * * *
Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.” (Citations omitted.) Id.
The Initial Encounter with Morrow Was Lawful
{¶ 16} We begin by reviewing a number of deeply-rooted principles of search and
seizure jurisprudence. An individual’s right to be free from unreasonable searches and
seizures is protected by the Fourth Amendment to the United States Constitution as well
as Article I, Section 14 of the Ohio Constitution. State v. Leak, 145 Ohio St.3d 165, 2016-
Ohio-154, 47 N.E.3d 821, ¶ 13. “It is a ‘basic principle of Fourth Amendment law’ that
searches and seizures inside a home without a warrant are presumptively unreasonable.”
Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), quoting
Coolidge v. New Hampshire, 403 U.S. 443, 476, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
{¶ 17} “For a search or seizure to be reasonable under the Fourth Amendment, it
must be based upon probable cause and executed pursuant to a warrant.” (Citations
omitted.) State v. Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000). “If probable cause
exists, then a search warrant must be obtained unless an exception to the warrant
requirement applies. If the state fails to satisfy either step, the evidence seized in the
unreasonable search must be suppressed.” (Citations omitted.) Id.
{¶ 18} Generally speaking, the reasonableness of a search or seizure is
dependent upon the facts and circumstances of each case. Leak at ¶ 13. This
reasonableness assessment “is measured in objective terms by examining the totality of
the circumstances.” Id., quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136
L.Ed.2d 347 (1996).
{¶ 19} The aforementioned Fourth Amendment protections are not implicated in
every interaction between police and civilians. State v. Taylor, 106 Ohio App.3d 741, 747,
667 N.E.2d 60 (2d Dist.1995), citing California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547,
113 L.Ed.2d 690 (1991) and State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498
(2d Dist.1994). Rather, “[t]he United States Supreme Court has created three categories
of police-citizen contact to identify the situations where these guarantees are implicated.”
Id., citing Florida v. Royer, 460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
These include: (1) consensual encounters; (2) investigatory detentions; and (3) seizures
in the nature of an arrest. Retherford at 594-595; Taylor at 747-749.
{¶ 20} Turning to the case at hand, we begin by acknowledging that Officers
Evans and Ettinger acted lawfully in entering the apartment building on Rockford Avenue.
It became necessary for the officers to make contact with the building residents to further
the investigation into the aggravated menacing and criminal damaging allegations. The
first-floor female resident unlocked the front door and permitted the officers to enter the
building’s common area to continue their investigation. Morrow does not argue that these
events violated his constitutional rights.
{¶ 21} Morrow’s challenge concerns the officers’ actions at the entrance to his
second-floor apartment. According to Morrow, the officers failed to establish a viable
connection between him and the allegations so as to justify ordering him to open his
apartment door. He points to the scant descriptive details provided by the woman in the
parking lot regarding her assailant, and the fact that the first-floor resident did not
corroborate the woman’s vague identification. Instead, the resident offered that a new
person had moved in upstairs. Morrow maintains that these facts were insufficient to
justify the officers’ infringement upon his right to privacy inside his home.
{¶ 22} We agree with the trial court that the initial interaction between Officer
Evans and Morrow at the front door to Morrow’s apartment started off as a “knock and
advise.” A number of courts, including this one, have recognized this type of consensual
encounter as a legitimate investigative technique at the home of a suspect or an individual
with information about an investigation. State v. Miller, 2d Dist. Montgomery No. 24609,
2012-Ohio-5206, ¶ 16. A police officer need not possess reasonable suspicion in order
to justify a “knock and advise.” United States v. Cormier, 220 F.3d 1103, 1109 (9th
{¶ 23} Like any other consensual encounter, the Fourth Amendment’s protections
are not implicated by a typical “knock and advise.” Miller at ¶ 15. However, such an
encounter can become coercive where an officer asserts his authority, refuses to leave,
or otherwise makes the inhabitant feel he cannot refuse to open the door. Id. at ¶ 16,
citing United States v. Poe, 462 F.3d 997, 1000 (8th Cir.2006). That is what happened
here. When Officer Evans knocked and announced his presence, Morrow was under no
obligation to open his door and, in fact, did not. Once Officer Evans ordered Morrow to
open the door, however, the interaction shifted.
{¶ 24} Where a law enforcement officer conveys the impression that compliance
with his request is mandatory, the encounter can no longer be deemed consensual. State
v. Westover, 2014-Ohio-1959, 10 N.E.3d 211, ¶ 15 (10th Dist.), quoting Florida v. Bostick,
501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Accord State v. Ward, 2017-
Ohio-1391, 89 N.E.3d 124, ¶ 26 (2d Dist.). At this point, “the crucial test is whether, taking
into account all of the circumstances surrounding the encounter, the police conduct would
‘have communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.’ ” Bostick at 437, quoting Michigan v. Chesternut,
486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).
{¶ 25} We agree with the trial court’s assessment that the encounter between
Officer Evans and Morrow lost its consensual air when the officer ordered Morrow to open
his door. The officer testified that his experiences both as a correction officer and a police
officer taught him that using stern language is sometimes necessary to accomplish a goal.
The officer’s continued presence at the door, combined with his harsh tone and strong
language, operated to assert his authority in a manner that would have made a
reasonable person feel they were obligated to obey. At that point, the encounter rose to
the level of an investigatory detention.
{¶ 26} “Unlike consensual encounters, an investigatory detention constitutes a
seizure; therefore, Fourth Amendment protections are implicated in an investigatory
detention.” (Citations omitted.) State v. Shern, 2018-Ohio-5000, 126 N.E.3d 322, ¶ 13 (2d
Dist.). “An individual is subject to an investigatory detention when, in view of all the
circumstances surrounding the incident, by means of physical force or show of authority,
a reasonable person would have believed that he was not free to leave or [was] compelled
to respond to questions.” State v. Lewis, 2d Dist. Montgomery No. 22726, 2009-Ohio158, ¶ 22, citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980).
{¶ 27} During investigatory detentions like the one at issue, “police officers may
briefly stop and/or temporarily detain individuals in order to investigate possible criminal
activity if the officers have a reasonable, articulable suspicion that criminal activity may
be afoot[.]” State v. Swift, 2d Dist. Montgomery No. 27036, 2016-Ohio-8191, ¶ 10, citing
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). (Other citations omitted.)
Whether an officer possesses reasonable suspicion is determined by evaluating the
totality of the circumstances, which must be considered “through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting
State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). “This ‘typically
requires [a showing] that the officer making the stop was [personally] aware of sufficient
facts to justify it[.]’ ” State v. Pickett, 2017-Ohio-5830, 94 N.E.3d 1046, ¶ 9 (2d Dist.),
quoting City of Maumee v. Weisner, 87 Ohio St.3d 295, 297, 720 N.E.2d 507 (1999).
{¶ 28} Although the encounter in this case took on a coercive tone, Officer Evans
was justified in ordering Morrow to open the door under the circumstances. The officers
were responding to a reported disturbance outside the building. At the scene, they spoke
to a woman who indicated she had been threatened by an African-American man clad in
a white t-shirt and blue jeans. She indicated the man came in and out of the apartment
building in question. The first-floor resident who had anonymously phoned 911 said she
did not know of a resident matching the description given by the woman, but offered that
a new tenant had moved in upstairs. In other words, none of the other residents known
to her matched that description, but the new tenant might. Based upon the information
provided by these two witnesses, the police reasonably suspected Morrow was either a
suspect or a witness in need of questioning. Evans’s order to open the door was a
reasonable request in furtherance of this investigation as contemplated by Terry v. Ohio.
{¶ 29} Even if we had found that Officer Evans’s order to open the door was
unlawful, we note that Morrow’s action of pointing a firearm at the officer constituted a
separate and distinct criminal offense. This court has declined to sanction the suppression
of fruits of an illegal search where the defendant engaged in criminal conduct comprising
an offense wholly separate from the one prompting an investigation. State v. Hammer, 2d
Dist. Darke No. 2012-CA-2, 2012-Ohio-3497, ¶ 2 (defendant’s voluntary act of assaulting
police officer broke the chain of proximate causation stemming from the officer’s unlawful
entry into his home). Accord State v. Freeman, 2d Dist. Montgomery No. 18798, 2002-
Ohio-918 (where defendant engaged in criminal conduct comprising offenses wholly
separate from the offense police were investigating, evidence seized thereafter was not
subject to exclusion). See also State v. Kelly, 2d Dist. Clark No. 3007, 1993 WL 402769,
*5 (Sept. 24, 1993) (excluding evidence of volitional criminal conduct that is independent
of an illegal search or seizure would not advance the purpose of the exclusionary rule in
deterring unlawful police conduct, and in fact may encourage the use of assaultive
behavior in response to an illegal search or seizure). Consequently, even had Evans not
been justified in engaging Morrow in an investigatory detention, Morrow’s volitional act of
pointing a gun at the officer constituted a separate offense which obviated the need for
suppression of the fruits of the illegal detention.
The Entry into Morrow’s Apartment Was Lawful
{¶ 30} Next, Morrow asserts that the officers’ warrantless entry into his apartment
was not justified by any exigent circumstances. In particular, he argues that the officers’
investigation into the misdemeanor offenses of aggravated menacing and criminal
damaging did not justify the warrantless entry into his home. Morrow concludes that the
drug and firearms evidence seized in conjunction with the officers’ unlawful entry into his
apartment should have been suppressed.
{¶ 31} The Ohio Supreme Court has expressly recognized a limited number of
exceptions to the warrant requirement, one of which is the presence of exigent
circumstances. State v. Peck, 2d Dist. Montgomery No. 25999, 2014-Ohio-2820, ¶ 8,
citing State v. Price, 134 Ohio App.3d 464, 467, 731 N.E.2d 280 (9th Dist.1999)
(surveying Ohio Supreme Court case law). “It is well recognized that police may enter a
home without a warrant where they have probable cause to search and exigent
circumstances exist justifying the entry.” State v. Burns, 2d Dist. Montgomery No. 22674,
2010-Ohio-2831, ¶ 20, quoting State v. Carr, 2d Dist. Montgomery No. 19121, 2002-Ohio4201, ¶ 15. (Other citation omitted.)
{¶ 32} The exigent-circumstances exception “is founded on the premise that the
existence of an emergency situation, demanding urgent police action, may excuse the
failure to procure a search warrant.” (Citation omitted.) State v. Cheadle, 2d Dist. Miami
No. 00CA03, 2000 WL 966167, *2 (July 14, 2000). “Whether exigent circumstances are
present is determined through an objective test that looks at the totality of the
circumstances confronting the police officers at the time of the entry.” State v. Enyart,
10th Dist. Franklin Nos. 08AP-184, 08AP-318, 2010-Ohio-5623, ¶ 21, citing United States
v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990).
{¶ 33} Morrow’s contention that the exigent circumstances exception is
inapplicable to this case misses the mark. The officers who breached the apartment
through a side door were lawfully permitted to do so. Morrow’s act of pointing a gun at
Officer Evans and the events that followed gave rise to the exigency justifying entry into
the apartment. See State v. Barber, 2d Dist. Montgomery No. 19017, 2002-Ohio-3278
(while exigency resulted from investigative conduct of officers, it was defendant’s
voluntary conduct of backing into the apartment and reaching behind his back with his
hand that created a reasonable suspicion he was armed and posed a danger to the safety
of the officers that justified the officers’ entry); State v. Burchett, 2d Dist. Montgomery No.
20166, 2004-Ohio-3095, ¶ 22 (officers did not create exigent circumstances by knocking
on door without identifying themselves as police).
{¶ 34} A civilian’s act of pointing a firearm at a police officer is not a minor offense.
Compare Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)
(exigent circumstances exception did not justify warrantless entry into suspect’s home
where officers had probable cause to believe suspect had committed only a minor
offense). Nor are we prepared to say that the offenses of aggravated menacing and
criminal damaging constitute “minor offenses” precluding the application of the exigent
circumstances exception to warrantless home entries in every instance. See State v.
Striks, 2015-Ohio-1401, 31 N.E.3d 208, ¶ 20 (2d Dist.) (noting that, “[w]hile Welsh
expresses concern about extending the exigent-circumstances exception to ‘minor
offenses,’ it did not define the term and also declined to consider whether the Fourth
Amendment imposes an absolute ban on warrantless home entries for certain minor
{¶ 35} Of note, Officer Evans testified that he could not see whether Morrow was
still armed from his vantage point outside the front door of the apartment. The officers
had to enter the residence to secure Morrow’s weapon and safely provide him with
medical assistance. One of the well-established emergency circumstances concerns
“when entry into a building is necessary to protect or preserve life[.]” See State v. Byrd,
2d Dist. Montgomery No. 27340, 2017-Ohio-6903, ¶ 13. Morrow had been shot and,
indeed, expressed to Officer Evans his belief that he was dying. It was imperative that the
officers confirm Morrow was no longer armed before entering to render life-saving aid.
{¶ 36} The final consideration supporting application of the exigent circumstances
exception concerns the existence of probable cause. Although not implicated by the
indictment in this the cas, Morrow’s act of pointing a firearm at a police officer supported
a charge of felonious assault. The officers thus had probable cause to enter the apartment
without a warrant after Morrow engaged in this criminal conduct.
Seizure of Evidence Pursuant to Search Warrant Was Lawful
{¶ 37} As indicated, Dayton Police obtained a warrant prior to searching Morrow’s
apartment. Morrow does not directly challenge the lawfulness of the search warrant.
Nonetheless, because the evidence he seeks to suppress was ultimately seized as a
result of the warrant, we shall briefly review its propriety.
{¶ 38} At the suppression hearing, the State submitted a certified copy of the
warrant as an exhibit. The parties stipulated that the court was to conduct a four corners
review of the warrant, and that no further testimony was necessary to introduce or explain
the document. The warrant sought to secure firearms, ammunition, knives, marijuana and
drug paraphernalia, and clothing described by the victim of the aggravated menacing and
criminal damaging offenses.
{¶ 39} The affidavit accompanying the warrant described the factual events
underlying this case. The affidavit further indicated that the officers observed a clear
plastic bag containing other clear baggies filled with suspected marijuana in plain view on
the kitchen counter during a protective sweep of the apartment. This observation, in
conjunction with the shooting and the circumstances surrounding it, afforded probable
cause sufficient to support the issuance of the search warrant. Accordingly, the trial court
properly refused to suppress the evidence seized pursuant to the warrant.
{¶ 40} For the foregoing reasons, Morrow’s assignment of error is overruled.

Outcome: Having overruled Morrow’s sole assignment of error, the judgment of the
trial court is hereby affirmed.

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