City of Middletown v. Flinchum

[This decision has been published in Ohio Official Reports at 

95 Ohio St.3d 43

.]




          CITY OF MIDDLETOWN, APPELLEE, v. FLINCHUM, APPELLANT.
                [Cite as Middletown v. Flinchum. 

2002-Ohio-1625

.]
Criminal law—Search and seizure—When officers, having identified themselves,
        are in hot pursuit of a suspect who flees to a house to avoid arrest, police
        may enter without a warrant, regardless of whether offense for which
        suspect is being arrested is a misdemeanor.
                                  __________________
                                SYLLABUS OF THE COURT
When officers, having identified themselves, are in hot pursuit of a suspect who
        flees to a house in order to avoid arrest, the police may enter without a
        warrant, regardless of whether the offense for which the suspect is being
        arrested is a misdemeanor.
     (No. 01-233—Submitted November 28, 2001—Decided April 10, 2002.)
     CERTIFIED by the Court of Appeals for Butler County, No. CA99-11-193.
                                  __________________
        ALICE ROBIE RESNICK, J.
        {¶ 1} The facts of this case are not in dispute.              On April 23, 1999,
Middletown police officers observed appellant Thomas Flinchum’s car stopped at
a red traffic light. When the light changed, appellant spun the car’s tires. The
officers then observed appellant stopping his car and then rapidly accelerating,
causing the car to fishtail as it made a right turn. At this point, the officers decided
to follow appellant. The officers attempted to approach appellant’s vehicle twice,
but on both attempts, appellant fled from the police.
        {¶ 2} Finally, the officers observed appellant standing on the driver’s side
of his parked car. When appellant observed the officers stop their cruiser in front
of his car, he ran towards the rear entrance of a house. One of the officers, Officer
                             SUPREME COURT OF OHIO




Wayne Birch, pursued appellant, yelling “Stop” and “Police” several times, to no
avail. As the pursuit continued, Officer Birch heard a rear screen door slam open
on a house that was later determined to be appellant’s. The officer then observed
appellant standing in his kitchen approximately five feet inside his home. Without
appellant’s permission, Officer Birch entered the home and arrested him. Appellant
was charged under Middletown ordinances with reckless operation, DUI, and
resisting arrest.
        {¶ 3} Before trial, appellant filed a motion to suppress evidence obtained as
a result of the warrantless entry into his home at the time of arrest. The trial court
denied the motion, finding that the officer was in hot pursuit of appellant, thereby
making the entry permissible. Appellant was ultimately convicted of reckless
operation and DUI but acquitted on the charge of resisting arrest. The appellate
court affirmed the trial court’s judgment.
        {¶ 4} This cause is now before the court as a certified conflict from the
Court of Appeals for Butler County.
        {¶ 5} We are asked to consider whether the Fourth Amendment to the
United States Constitution is contravened by a warrantless home entry to effect an
arrest for a misdemeanor. We hold today that it is not and, therefore, affirm the
judgment of the court of appeals.
        {¶ 6} The Fourth Amendment states, “The right of the people to be secure
in their person, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause
* * *.” Furthermore, in United States v. United States Dist. Court for the E. Dist.
of Michigan (1972) 

407 U.S. 297, 313

, 

92 S.Ct. 2125, 2134

, 

32 L.Ed.2d 752, 764

,
the court noted that the “physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.”
        {¶ 7} Appellant contends that the Middletown police officers were
precluded from entering his home because probable cause and exigent




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                                 January Term, 2002




circumstances were absent, since the violation was simply a misdemeanor. We
find, however, that appellant’s argument is without merit and, if adopted, would
create the illusion that flight from police officers is justified and reasonable as long
as no felony offense has been committed.
        {¶ 8} In United States v. Santana (1976), 

427 U.S. 38

, 

96 S.Ct. 2406

, 

49 L.Ed.2d 300

, the court made it clear that a suspect may not avoid arrest simply by
outrunning pursuing officers and finding refuge in her home. The court noted that
hot pursuit “need not be an extended hue and cry ‘in and about [the] public streets.’
“ 

Id. at 43

, 

96 S.Ct. at 2410

, 

49 L.Ed.2d at 305

, quoting the trial court. Moreover,
the court went on to conclude that “a suspect may not defeat an arrest which has
been set in motion in a public place * * * by the expedient of escaping to a private
place.” 

Id. at 43

, 

96 S.Ct. at 2410

, 

49 L.Ed.2d at 306

.
        {¶ 9} In the case at bar, the officers observed appellant engage in the
reckless operation of his vehicle on more than one occasion. Once the officers
attempted to approach appellant to arrest him, he not only ignored their commands
to stop after they had identified themselves as police officers, but he also fled to his
home in order to avoid arrest. Although Santana deals with the issue of warrantless
home arrests in the context of a felony suspect, we see no reason to differentiate
appellant’s offense and give him a free pass merely because he was not charged
with a more serious crime. The basic fact remains that appellant fled from police
who were in lawful pursuit of him and who had identified themselves as police
officers.
        {¶ 10} Similar conclusions have already been reached in other jurisdictions.
In Nebraska v. Penas (1978), 

200 Neb. 387

, 

263 N.W.2d 835

, paragraph two of the
syllabus, in which the defendant was convicted of DUI, the court held, “When a
citizen has knowingly placed himself in a public place, and valid police action is
commenced in that public place, the citizen cannot thwart police action by fleeing
into a private place.” Further, in Minnesota v. Paul (Minn.1996), 

548 N.W.2d 260

,




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syllabus, that court held, “A police officer in hot pursuit of a person suspected of
the serious offense of driving under the influence of alcohol may make a
warrantless entry into the suspect’s home in order to effectuate an arrest.”
       {¶ 11} We therefore hold today that when officers, having identified
themselves, are in hot pursuit of a suspect who flees to a house in order to avoid
arrest, the police may enter without a warrant, regardless of whether the offense for
which the suspect is being arrested is a misdemeanor. In so holding, we do not give
law enforcement unbridled authority to enter a suspect’s residence at whim or with
a blatant disregard for the constraints of the Fourth Amendment, but rather limited
to situations present in today’s case.
                                                                 Judgment affirmed.
       MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
       DOUGLAS and COOK, JJ., concur in judgment.
       PFEIFER, J., dissents.
                                 __________________
       PFEIFER, J., dissenting.
       {¶ 12} Our inquiry in this type of case should not be how to effectuate the
conviction of someone who did wrong. Instead, we should ask ourselves how what
we decide affects our core freedoms. Our Bill of Rights contains a mere ten ideas.
Any time we chip away at one of those ten we had better have a good reason. We
do not have one in this case.
       {¶ 13} The United States Supreme Court thought it had a good reason to
limit Fourth Amendment freedoms in United States v. Santana (1976), 

427 U.S. 38

,

96 S.Ct. 2406

, 

49 L.Ed.2d 300

. Whether the court’s decision in that case was right
is debatable, but the case is also so different from this one as to be irrelevant. In
Santana, police officers had arranged a heroin buy. Officers paid one suspect in
marked bills to purchase the heroin. The suspect went into a house, and then came
out and entered an officer’s car with the heroin. Officers arrested the suspect, and




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                                January Term, 2002




then returned to the house where the heroin had been purchased to retrieve the
marked money. The suspect told police that “Mom Santana” had the money. Police
saw Mom Santana standing in the doorway of the house. When they announced
they were police, Santana retreated into the house. Officers followed and caught
her just inside the doorway. Packets of heroin fell from a bag she was holding, and
when she emptied her pockets, she produced $70 worth of the marked money.
       {¶ 14} As the Supreme Court pointed out, the police in Santana were faced
with “a realistic expectation that any delay would result in destruction of evidence.”
Santana, 

427 U.S. at 43

, 

96 S.Ct. 2406

, 

49 L.Ed.2d 300

. They were also dealing
with a felony. The Supreme Court was willing to limit Fourth Amendment
protections in a case where a serious crime was committed and where evidence of
that crime was liable to be compromised. Here, we are asked to weaken the Fourth
Amendment in exchange for an arrest on a minor traffic offense where there was
no threat of the destruction of evidence.
       {¶ 15} We are dealing in this case with a fundamental part of a fundamental
right. “It is axiomatic that the ‘physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.’” Welsh v. Wisconsin
(1984), 

466 U.S. 740, 748

, 

104 S.Ct. 2091

, 

80 L.Ed.2d 732

, quoting United States
v. United States Dist. Court for the E. Dist. of Michigan (1972), 

407 U.S. 297, 313

,

92 S.Ct. 2125

, 

32 L.Ed.2d 752

. It is nearly as axiomatic that “the Court has
recognized, as ‘a “basic principle of Fourth Amendment law[,]” that searches and
seizures inside a home without a warrant are presumptively unreasonable.’ “ Id. at
749, 

104 S.Ct. 2091

, 

80 L.Ed.2d 732

, quoting Payton v. New York (1980), 

445 U.S. 573, 586

, 

100 S.Ct. 1371

, 

63 L.Ed.2d 639

. The Welsh court recognized exceptions
for exigent circumstances, but emphasized that “exceptions to the warrant
requirement are ‘few in number and carefully delineated’ * * * and that police bear
a heavy burden when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests.” 

466 U.S. at 749-750

, 

104 S.Ct. 2091

, 

80 L.Ed.2d 5

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732, quoting United States v. United States Dist. 

Court, supra,

407 U.S. at 318

, 

92 S.Ct. 2125

, 

32 L.Ed.2d 752

. In Welsh the court was quick to point out that the
exception carved out by Santana concerns “hot pursuit of a fleeing felon.”
(Emphasis added.) Id. at 750, 

104 S.Ct. 2091

, 

80 L.Ed.2d 732

.
        {¶ 16} The gravity of tinkering with the protections of the Fourth
Amendment is appreciated by the Supreme Court, and that court emphasizes that
the circumstances of a particular situation must be grave enough to merit a lifting
of those protections: “Our hesitation in finding exigent circumstances, especially
when warrantless arrests in the home are at issue, 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,
that 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.” (Footnote omitted.) 

Id. at 750

, 

104 S.Ct. 2091

, 

80 L.Ed.2d 732

.
        {¶ 17} The    government      could    not    rebut   the    presumption     of
unreasonableness in this case because it involved only a minor traffic offense. The
majority breathlessly depicts the pursuit and detention of Finchum in the manner of
a television police drama. They should have given it the Dragnet approach—the
facts, and only the facts. Finchum spun his tires when a traffic light turned green,
later fishtailed his car when making a right turn, and again spun his tires when
accelerating from a stop sign. Judging from the charge eventually brought against
him, it appears that Flinchum did not squeal his tires, did not cross a center line, did
not speed, did not make an illegal left turn, did not fail to use his blinker, did not
fail to stop at a stop sign, did not fail to update his license tags, did not illegally
park. The Middletown police officers, on the other hand, upon viewing Finchum’s
acts, did not activate their flashing lights, or their siren. After Flinchum had parked
his car, he ran toward his house when he saw the Middletown police cruiser stop in




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                                    January Term, 2002




front of his parked vehicle. No one disputes that Finchum was already running
toward his house before an officer said anything to him. The ten to fifteen yards
between Finchum’s car and his back door is the length of what the city calls “hot
pursuit.”
        {¶ 18} The whole chase of Flinchum was more lukewarm amble than hot
pursuit. In any event, no recitation of the facts can change the truth that the police
officer in this case burst into Finchum’s house to arrest a mere tire spinner. What
do we gain by the majority’s opinion? Police can enter the homes of tire spinners
without a warrant, without knocking, without asking the spinner to please step
outside. What do we lose? From a practical standpoint, we place homeowners and
police officers in dangerous situations. From a jurisprudential standpoint, we give
up part of a right that has been jealously guarded for over two hundred years.
                                __________________
        Bruce E. Fassler, Middletown City Prosecutor, for appellee.
        Repper & Powers and Christopher J. Pagan, for appellant.
        Betty D. Montgomery, Attorney General, and David M. Gormley, State
Solicitor, for the state of Ohio.
                                __________________




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