State v. Curry

2025 Ohio 2083

• Court: Ohio Court of Appeals
• Decided: June 13, 2025
• Docket: C-240404
• Status: Published

Opinion

[Cite as State v. Curry, 2025-Ohio-2083.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-240404 TRIAL NO. B-2303584-B Plaintiff-Appellee, :

vs. : JUDGMENT ENTRY SHAWN CURRY, :

Defendant-Appellant. :

This cause was heard upon the appeal, the record, the briefs, and arguments. The judgment of the trial court is reversed and the cause is remanded for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs are taxed under App.R. 24. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 6/13/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as State v. Curry, 2025-Ohio-2083.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-240404 TRIAL NO. B-2303584-B Plaintiff-Appellee, :

vs. : OPINION SHAWN CURRY, :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 13, 2025

Connie M. Pillich, Hamilton County Prosecuting Attorney, and John D. Hill, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} After the trial court denied his motion to suppress, defendant-appellant

Shawn Curry pled no contest to aggravated possession of drugs, aggravated trafficking

in drugs, possession of cocaine, trafficking in cocaine, tampering with evidence,

carrying a concealed weapon, and having a weapon while under disability. He was

sentenced to an aggregate period of 60 months’ imprisonment. Curry now appeals,

arguing in two assignments of error that the trial court erred in denying his motion to

suppress and that the trial court erred in the imposition of sentence.

{¶2} Following our review of the record, we hold that the trial court erred in

denying Curry’s motion to suppress because the protective sweeps conducted after

Curry’s arrest, during which the contraband that was the subject of the search warrant

was discovered, were unconstitutional. We accordingly reverse the trial court’s

judgment and remand this cause for further proceedings.

I. Factual and Procedural History

{¶3} On July 25, 2023, multiple Cincinnati Police officers were dispatched to

5489 Gardenview Lane in the Winton Terrace neighborhood of Cincinnati after

receiving reports that an individual, later determined to be Curry, was firing gunshots

in the street. Upon arriving at the scene, officers witnessed Curry toss a firearm onto

the ground and enter through a window into the residence located at 5489 Gardenview

Lane.

{¶4} The following events were recorded on the body-worn cameras

(“BWCs”) of several of the officers involved. Officers surrounded the residence. They

knocked on the door of the apartment that Curry had entered, announced their

presence, and ordered him to come outside. A woman could be heard yelling inside

the apartment. When Curry did not respond or open the door, officers used a battering

3 OHIO FIRST DISTRICT COURT OF APPEALS

ram to breach the doorway of the apartment. The doorway led to a long hallway with

a room off to the right at the end of the hallway. The officers could not see any people,

but they could hear a woman crying and screaming and a dog loudly barking. The

occupants of the apartment were ordered to exit, but when they did not comply,

officers made their way down the hallway, through what turned out to be a kitchen on

the right. They discovered Curry and Jamelia Brooks standing in the living room,

which was accessed by walking through the kitchen and turning left.1 Brooks

eventually walked over to the officers and was handcuffed, while Curry dropped to the

floor in compliance. Curry was also handcuffed, and he and Brooks were taken outside.

{¶5} The suppression-hearing testimony revealed that the officers turned off

their BWCs and conducted what they called a “protective sweep” of the entire

apartment, except for a bedroom behind a closed door. Officers did not enter the

bedroom because they could hear a dog barking from inside the room and were

worried that the dog would be aggressive.

{¶6} During the protective sweep, the officers saw what they believed to be a

digital scale, a bag containing a white powdered substance believed to be fentanyl, and

a bag containing blue pills. All three items were on the kitchen counter. After a

neighbor assured the officers that the dog in the bedroom was not aggressive and

offered to watch it, the officers entered the bedroom to retrieve the dog and conduct a

protective sweep of that room. A firearm was found in plain view on the bed. Based on

the evidence observed during the protective sweeps, the officers obtained a warrant to

search the apartment. When the warrant was executed, additional contraband was

recovered.

1 Jamelia Brooks is alternatively referred to as Jamelia Bright in the record.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶7} Curry was indicted for aggravated possession of drugs, aggravated

trafficking in drugs, possession of cocaine, trafficking in cocaine, tampering with

evidence, carrying a concealed weapon, and having a weapon while under disability.

{¶8} Curry filed a “motion for Franks Hearing and to suppress evidence.” In

the motion, Curry asked the court to suppress any evidence obtained from the search

of his apartment “on the grounds that said evidence is the fruit of an unconstitutional

search and seizure in violation of” Curry’s rights under the Fourth and Fourteenth

Amendments to the United States Constitution and Article 1, Section 14 of the Ohio

Constitution.

{¶9} The memorandum in support of Curry’s motion argued that the officers

had included false statements in the search warrant affidavit. He contended that any

statements asserting that the officers observed contraband in plain view during the

protective sweep were false and were contradicted by footage from the officers’ BWCs.

Curry further argued that, absent these false statements, the search warrant affidavit

lacked probable cause to support the issuance of the warrant.

{¶10} Curry’s memorandum also argued that a warrantless search conducted

after Curry was secured on the floor would have only permitted the officers to search

areas in his immediate control, and that “the State cannot assert that a ‘protective

sweep’ and/or the ‘plain view doctrine’ would have permitted the officers to search the

residence and recover evidence of a crime.” The State did not file a written response to

Curry’s motion.

{¶11} At the hearing on the motion to suppress, Curry’s opening statement

focused on the false statements in the affidavit, stating,

[T]here is body-camera footage before the search warrant that does

reveal that some of the things that were stated in the search warrant

5 OHIO FIRST DISTRICT COURT OF APPEALS

were not correct.

[The statements] were false and recklessly disregarded the truth.

Because those statements were false and recklessly disregarded the

truth, and without those statements in the search warrant, there was no

probable cause for the officers to search.

{¶12} The State, in its opening statement, argued that no false evidence had

been offered in support of the search warrant. It argued that “[t]he officers are allowed

to do a protective sweep in order [to] make sure that there are no people remaining in

that household before they execute the search warrant. And in this case, that’s exactly

what happened.”

{¶13} The first and only witness called by Curry at the suppression hearing

was Cincinnati Police Officer John Wolff, who signed the search warrant affidavit.

Wolff testified that, on July 25, 2023, he was assigned to the Cincinnati Police

Department’s violent crime squad and responded to 5489 Gardenview Lane after

receiving reports that an individual was firing gunshots in the street. After arriving at

the scene, Wolff saw the suspect toss the firearm on the ground and enter a nearby

apartment through a window. Wolff, along with several other officers, entered that

apartment with their BWCs activated.

{¶14} Wolff’s testimony established that Curry and Brooks were the only two

people that the officers encountered inside the apartment. The officers had not heard

any other person in the apartment or suspected that anyone else was inside it. Wolff

assisted with securing Brooks. He explained that she assaulted an officer and was

taken out of the apartment and subsequently arrested. Wolff further testified that

Curry was prone on the living-room floor. From that position, Curry could not access

the closed bedroom or the kitchen. Wolff stated that Curry was removed from the

6 OHIO FIRST DISTRICT COURT OF APPEALS

apartment and arrested.

{¶15} Wolff testified that he drafted the search warrant affidavit, and the

affidavit alleged that several items in the apartment were in the plain view of the

officers. Because Curry’s motion to suppress argued that this statement was

intentionally false and was contradicted by footage from the officers’ BWCs, Wolff was

shown portions of footage from his own BWC, as well as footage from the BWCs of

Officer Mark McChristian, Officer William Kinney, Sergeant Craig Copenhaver, and

Officer Cody Dotson, and was questioned about what the footage depicted. Wolff

agreed the footage showed a black bag, a green bottle, and a coffee mug on the kitchen

counter. He further stated that he saw what he believed to be a digital scale to the right

of the bag.2

{¶16} To illustrate his point that these items had been moved, Curry then

showed Wolff photographs taken of these items when the search warrant was

executed. Wolff acknowledged that the items had been moved during the execution of

the warrant “to document the location of where we recovered those items.” He testified

that he did not take a still photograph of the items when he first observed them.

{¶17} Wolff also identified and discussed a portion of the footage from

Copenhaver’s BWC footage in which Copenhaver asked Kinney if a “sweep” had been

conducted. Wolff explained that the purpose of a sweep was to “ensur[e] that there are

no other individuals in there armed with a gun that may be dangerous.”

{¶18} On cross-examination by the State, Wolff explained that the officers’

initial focus upon entering the apartment was “[e]nsuring the safety of everybody that

2 After looking at a photograph of this item, Wolff agreed with defense counsel that it appeared to

have a camera on it. He further agreed that cell phones, and not scales, tend to have cameras on them.

7 OHIO FIRST DISTRICT COURT OF APPEALS

was inside the residence and apprehending the individual that was shooting a gun in

the street on Winton Terrace.” Wolff was then asked when his focus switched from the

safety of the residents and the officers to looking for contraband. He responded, “Once

everybody was safely placed into custody and placed in the back of police cruisers, the

focus switched from safety to investigating the criminal activity that was occurring that

day.”

{¶19} Wolff also discussed the protective sweep on cross-examination. He was

asked what items he looked for during the protective sweep and responded “[e]vidence

of the crime of discharging firearms, guns, ammo, gun magazines, things of that

nature.” Wolff stated that a bag with blue pills and a digital scale on the kitchen counter

were recovered during the sweep. After Wolff saw these items, he left the scene and

went to the police station to draft a search warrant and affidavit. His brother officers

remained on the scene to secure the apartment.

{¶20} Wolff testified that after he left the scene, a second protective sweep was

conducted in the closed bedroom. Wolff was notified by Dotson that the dog was

secured and that a black handgun was found lying in plain view on a bed. Wolff

testified that he added the information about the recovered handgun to the affidavit,

but that in his haste he mistakenly stated that “affiant” had seen the weapon, rather

than his fellow officer.

{¶21} The State presented testimony from Officer Dotson, who stated that his

initial role upon arriving at the scene was to maintain a perimeter position on the

apartment to ensure that the suspect did not flee. Dotson explained that after Curry

and Brooks were taken into custody, his role changed to securing the apartment while

a search warrant was obtained. Dotson was aware that a bedroom in the apartment

had not yet been entered because it contained an aggressive dog. He testified that while

8 OHIO FIRST DISTRICT COURT OF APPEALS

he was standing by the back door, a neighbor approached him and explained that the

dog, which was still inside the bedroom, was not aggressive and offered to take the

dog. Dotson removed the dog from the bedroom and conducted a quick search of the

room. He saw a black semiautomatic handgun lying on the bed. Dotson testified that

he called Wolff to relay the information about the handgun so that Wolff could include

that information in the search warrant affidavit.

{¶22} The State also presented testimony from Sergeant Copenhaver. His

testimony concerned the Cincinnati Police Department’s policy regarding when an

officer’s BWC should be activated. He testified that the BWCs were turned off during

the protective sweep per department policy.

{¶23} During closing argument, Curry argued that the officers could only have

conducted a search incident to arrest in the areas immediately accessible to Curry,

which did not include the kitchen or bedroom. He also argued that the plain-view

doctrine was not applicable because the drugs and the item that the officers alleged to

be a scale were not in plain view and were not immediately visible without moving

other objects. Relatedly, he contended that the officers lacked probable cause to

believe that the black bag by itself or “the item on the counter” was contraband unless

other items had been moved around.

{¶24} Curry further argued that “protective sweep does not apply” and that

“[a]lthough it does cover a larger area, the officers don’t have any articulable facts that

would warrant the officers to believe that the area harbored an individual posing a

danger to those on the arrest scene.” In support, Curry noted that he and Brooks had

been arrested and escorted out of the apartment, the gun that was the subject of the

call had been recovered outside, and the officers had no indication that any other

person was in the apartment. Curry argued that when he and Brooks were taken

9 OHIO FIRST DISTRICT COURT OF APPEALS

outside, “that ended the need to conduct a protective sweep when the arrest had been

made.”

{¶25} Curry next contended that the search could not be justified under the

doctrine of inevitable discovery. He concluded by stating that, even if the court were

to find that the statements in the affidavit were not intentionally false, “they were

based on impermissible uses of the plain view doctrine and protective sweep,

rendering probable cause invalid for the search warrant.”

{¶26} The State argued in closing that Curry failed to establish that Wolff lied

in the affidavit about whether the contraband referenced in the affidavit was in plain

view. When it addressed the protective sweep, it said, “[The defense] makes the

assumption that the officers had no threat, and, therefore, did not have any right to

conduct the protective sweep, and, therefore, I assume, they’re lying. None of this

raises to the level of perjury. None of this raises to anything that would make the

warrant invalid.”

{¶27} After the hearing, Curry filed a brief in support of closing argument,

attacking the protective sweep as unconstitutional and citing applicable case law in

support of that argument. The State did not file a response to this supplemental brief.

{¶28} Approximately one month after Curry filed the supplemental brief, the

trial court issued a decision denying the motion to suppress. The decision noted that

Curry had filed a brief in support of closing argument without leave of court, but the

State did not object, request that it be stricken, or respond. Thus, the court accepted

and considered Curry’s supplemental brief.

{¶29} The trial court set forth the following findings of fact in the decision:

Police then used a battering ram and entered the residence

approximately fifteen minutes after arriving on the scene.

10 OHIO FIRST DISTRICT COURT OF APPEALS

Police made their way through the residence’s hall and then the

kitchen. The Defendant was not visible. A dog was barking within the

residence. First, the female occupant leaves and is detained by police.

The Defendant finally complies with police commands and lies on the

floor. He is then taken into custody. The large dog is still barking in the

bedroom. At the command of Sergeant Kopenhaver [sic], the police

sweep the residence to look for other individuals. They leave the dog in

the bedroom after checking for more people. The two individuals are

taken into custody. The ranking officer then gives the command to turn

off the body worn cameras.

While sweeping the residence but without the body worn

cameras activated, Officer Wolff saw a bag of blue pills and what appears

to be a scale in the corner of the kitchen just below the visible syringe . .

. . The scale turned out to be a cell phone. Based on the items viewed

Officer Wolff sought a search warrant. The officers then proceeded to

secure the residence and wait for the search warrant. While enroute to

get the search warrant Officer Dotson called Officer Wolff and stated

that they secured the dog in the bedroom (gave it to neighbor

eventually) and discovered another firearm in the bedroom on a bed . .

..

{¶30} The trial court found that Curry failed to establish that the affidavit in

support of the search warrant contained false representations. It stated that Curry

“only offered the omission of body worn camera as proof of the falsity of Officer Wolff’s

affidavit. This is insufficient to support Defendant’s claim.”

{¶31} The trial court also found Curry’s argument that the protective sweeps

11 OHIO FIRST DISTRICT COURT OF APPEALS

were unconstitutional to be without merit. After setting forth the applicable law on

protective sweeps, the court stated that “[t]he Defendant does not take issue with the

protective sweep but in only so far as to the discovery of the narcotics. The Court

concludes that there were specific and articulable facts for the Cincinnati Police to

search for other assailants, other firearms, and other possible persons in the

residence.”

{¶32} Curry subsequently pled no contest to all charges and received an

aggregate sentence of 60 months of imprisonment. He now appeals.

II. Motion to Suppress

{¶33} In his first assignment of error, Curry argues that the trial court erred

in denying his motion to suppress. Curry challenges both the trial court’s

determination that the officers were justified in conducting the protective sweeps

before the warrant was obtained and its determination that he did not meet his burden

of establishing that the officers made intentionally false statements in the search

warrant affidavit.

A. Standard of Review

{¶34} Our review of a trial court’s ruling on a motion to suppress “presents a

mixed question of law and fact.” State v. Wright, 2022-Ohio-2161, ¶ 11 (1st Dist.);

accord State v. Hale, 2024-Ohio-4866, ¶ 12. We must accept the trial court’s findings

of fact as true if competent, credible evidence supports them. Wright at ¶ 11; Hale at

¶ 12. But we review questions of law de novo, without any deference to the trial court’s

legal conclusions. Wright at ¶ 11; Hale at ¶ 12.

B. Protective Sweeps

{¶35} Curry first argues that the protective sweeps of his apartment were

unconstitutional and in contravention of the Fourth and Fourteenth Amendments to

12 OHIO FIRST DISTRICT COURT OF APPEALS

the United States Constitution and Article 1, Section 14 of the Ohio Constitution,

because the officers lacked a reasonable belief that the area to be swept harbored a

danger to those on the arrest scene.

1. Waiver

{¶36} Although the State does not argue that Curry waived a challenge to the

warrantless search and the protective sweeps, we address the issue of waiver because

the dissenting opinion contends that Curry waived the issues.

{¶37} “‘A first principle of appellate jurisdiction is that a party ordinarily may

not present an argument on appeal that it failed to raise below.’” State v. Camper,

2023-Ohio-4673, ¶ 48 (10th Dist.), quoting State v. Wintermeyer, 2019-Ohio-5156,

¶ 10. However, courts have generally held that if an issue is raised in a motion to

suppress, at the suppression hearing, or in supplemental briefing, then that issue is

not waived. See, e.g., State v. Mishler, 2024-Ohio-1085, ¶ 13 (9th Dist.) (“The Supreme

Court stressed that a motion to suppress is merely a procedural vehicle to put the ball

in play.” (Cleaned up.)); State v. Riedel, 2017-Ohio-8865, ¶ 48 (8th Dist.) (“Riedel

waived this unlawful-protective-sweep argument for purposes of this appeal by failing

to raise it in the trial court in any manner.” (Emphasis added.)); State v. Bradley,

2025-Ohio-58, ¶ 10 (2d Dist.) (“Bradley did not raise the reliability of the informant

or the tip in his written motion to suppress, and he did not address the issue at the

hearing or in his post-hearing memorandum. Because this argument is raised for the

first time in this appeal, we decline to address it.” (Emphasis added.)); State v.

Weaver, 2024-Ohio-5028, ¶ 30 (2d Dist.) (holding that the record was clear that “both

parties were aware of Weaver’s challenge to whether Officer Lykins had reasonable,

articulable suspicion to conduct the [field sobriety tests]”).

{¶38} The dissenting opinion argues that Curry acknowledges in the

13 OHIO FIRST DISTRICT COURT OF APPEALS

“Statement of the Case” section of his appellate brief that his motion to suppress only

challenged the adequacy of the affidavit. While the first sentence of that section of

Curry’s brief does state that Curry’s motion was based on an allegation that the

affidavit offered in support of the warrant was untruthful, he further asserts in the

same paragraph of his brief that the officer conducting the protective sweep did not

mention during the suppression hearing that he was looking for potentially dangerous

people and admitted that the police conducted a warrantless search of the apartment

for evidence.

{¶39} As illustrated in the preceding section of this opinion, the warrantless-

search and protective sweeps issues were, in fact, raised in the initial suppression

motion and at the suppression hearing. Further, both the prosecution and the court

were on notice of these issues. In fact, on the issue of waiver, the State conceded in its

appellate brief that, “as part and parcel of the somewhat idiosyncratic manner in which

[Curry] chose to structure his initial motion to suppress, he may have in fact raised

this issue—at least by implication.”

{¶40} Although Curry’s “motion for Franks Hearing and to suppress evidence”

primarily argued that the affidavit submitted in support of the search warrant

contained false statements regarding whether the observed contraband was in plain

view, it additionally challenged the validity of the warrantless search conducted after

Curry was handcuffed. The motion asserted that such a search would have only

permitted the officers to search areas in Curry’s immediate control, and that “the State

cannot assert that a ‘protective sweep’ and/or the ‘plain view doctrine’ would have

permitted the officers to search the residence and recover evidence of a crime.” This

language “put the ball in play,” and thus put the State on notice that the warrantless

search and the protective sweeps were being challenged. See Mishler, 2024-Ohio-

14 OHIO FIRST DISTRICT COURT OF APPEALS

1085, at ¶ 13 (9th Dist.), quoting State v. Codeluppi, 2014-Ohio-1574, ¶ 8 (“[T]he Ohio

Supreme Court recognized that the law ‘does not require that a defendant set forth the

basis for suppression in excruciating detail . . . .’”).

{¶41} The dissenting opinion states that the motion to suppress did not

comply with Crim.R. 47 because the “motion did not challenge the protective sweep

with the required particularity and specificity.” The dissenting opinion faults the

defendant for not citing “legal authority specific to a protective sweep” and states that

“the requested relief did not mention a warrantless search or a protective sweep.”

However, once a defendant alleges a warrantless search, it is the State’s burden to raise

an exception to the warrantless search. See United States v. Archibald, 589 F.3d 289,

295 (6th Cir. 2009) (“The government faults Archibald for not arguing in the district

court that the protective sweep was unlawful under the first Buie test, but the

government, not Archibald, had the burden to prove the constitutionality of the

warrantless search of Archibald’s residence.”); see also State v. Watts, 2024-Ohio-

635, ¶ 5 (1st Dist.) (holding that once the defendant establishes the lack of a warrant

and the grounds upon which the warrantless search is being is challenged, the State

has the burden of proof to justify the warrantless search). Thus, the motion to suppress

sufficiently put the State on notice that it would have to prove the constitutionality of

the warrantless search with an exception to the warrant requirement. The

memorandum to the motion to suppress anticipated that the State would argue that

there was a valid protective sweep, but it was not required to go into detail about

something that was the State’s burden.

{¶42} Further, the defense focused on the Franks issue in its opening

statement during the suppression hearing because it had the burden to prove that the

information in the affidavits was intentionally or recklessly false. But the defense did

15 OHIO FIRST DISTRICT COURT OF APPEALS

not narrow the issues or confirm that it was no longer contesting the warrantless

search and the protective sweep, as the dissenting opinion suggests. The facts of this

case are nothing like those in State v. Jackson, 2021-Ohio-517 (1st Dist.), upon which

the dissenting opinion relies. In Jackson, defense counsel affirmatively stated, “But

I’m not questioning the stop.” Id. at ¶ 9. Based on that concession, this court held that

any challenge to the stop of Jackson’s vehicle was abandoned. Id. at ¶ 10. The record

before us contains no such affirmative statement abandoning Curry’s challenge to the

protective sweeps.

{¶43} If the warrantless-search and protective sweeps issues had been

abandoned at the suppression hearing, the State would not have addressed the validity

of the protective sweeps during its opening statements. It did so because it was the

State’s burden to prove an exception to the warrant requirement. The State indicated

its awareness that a challenge to the sweeps was in play. When discussing whether the

officers were required to activate their BWCs when searching the apartment, the State

argued,

And the time when [the body-worn camera] can be deactivated

is after there was the determination to get a search warrant. The officers

are allowed to do a protective sweep in order [t]o make sure that there

are no people remaining in that household before they execute the

search warrant. And in this case, that’s exactly what happened.

{¶44} Further, both Curry and the State elicited testimony from Officer Wolff

about the protective sweeps.

{¶45} Curry also argued during closing argument that the protective-sweep

doctrine did not justify the warrantless search, contending that the sweeps were not

justified because the officers lacked a reasonable suspicion that anyone else was in the

16 OHIO FIRST DISTRICT COURT OF APPEALS

apartment. He further contended in closing argument that even if the trial court was

not persuaded that the affidavit offered in support of the search warrant contained

statements that were intentionally false, it was “based on impermissible uses of the

plain view doctrine and protective sweep, rendering probable cause invalid for the

search warrant. This would still require suppression.”

{¶46} Although it disagrees that Curry had raised the issues of the warrantless

search and protective sweeps in his motion to suppress or during the suppression

hearing, the dissenting opinion at least agrees that these issues were raised in the

supplemental brief that was filed after the suppression hearing. In this supplemental

brief, Curry specifically challenged the protective sweeps and provided legal authority

in support of his argument. Nevertheless, the dissenting opinion contends, the trial

court should not have addressed the issue because the defendant did not seek leave to

file the supplemental memorandum.

{¶47} In the trial court’s “Entry and Decision,” the court addressed this

supplemental filing and stated, “The Defendant filed, without leave, a brief in support

of closing argument on May 17, 2024. The State did not object nor request this filing

be struck.” Thus, the trial court, in its discretion, chose to consider the supplemental

argument. And the fact that it did supports a determination that the State had notice

that the issues were raised.

{¶48} On that point, the State also had an opportunity to respond to Curry’s

supplemental argument because the trial court did not rule on the motion to suppress

until a month after the supplement was filed. After Curry filed the supplemental

argument, the State could have filed a response, or it could have asked the trial court

to reopen the hearing so that it could present additional evidence regarding this

argument. But the State did neither. It chose not to respond.

17 OHIO FIRST DISTRICT COURT OF APPEALS

{¶49} We accordingly hold that Curry “adequately raise[d] the basis of his

challenge” to the warrantless search on the ground that the protective sweeps were

unconstitutional, and that he has not waived this argument on appeal. See Xenia v.

Wallace, 37 Ohio St.3d 216, 218 (1988).

2. Legal Analysis of Protective Sweeps

{¶50} “‘The touchstone of the Fourth Amendment is reasonableness.’” State v.

Leak, 2016-Ohio-154, ¶ 14, quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991).

Unreasonable searches and seizures are prohibited by the Fourth Amendment to the

United States Constitution and Article 1, Section 14 of the Ohio Constitution. Wright,

2022-Ohio-2161, at ¶ 12 (1st Dist.). Absent an exception, warrantless searches are per

se unreasonable. State v. Whitfield, 2020-Ohio-2929, ¶ 10 (1st Dist.).

{¶51} Curry does not dispute that the initial warrantless entry into the

apartment was constitutionally permissible under the exigent-circumstances

exception to the warrant requirement. See State v. Applegate, 68 Ohio St.3d 348, 349

(1994), quoting Katz v. United States, 389 U.S. 347, 357 (1967) (“A warrantless police

entry into a private residence is not unlawful if made upon exigent circumstances, a

‘specifically established and well-delineated exceptio[n]’ to the search warrant

requirement.”); State v. Buck, 2017-Ohio-8242, ¶ 19-20 (1st Dist.), quoting Michigan

v. Tyler, 436 U.S. 499, 509 (1978) (“Where exigent circumstances exist, a warrantless

search is reasonable because ‘there is a compelling need for official action and no time

to secure a warrant.’”). Thus we express no opinion on the initial warrantless entry.

{¶52} However, there was no testimony at the suppression hearing, and the

trial court did not find, that any of the contraband listed in the search warrant affidavit

was in plain view of and seen by the officers during the initial warrantless entry into

the apartment before Brooks and Curry were arrested.

18 OHIO FIRST DISTRICT COURT OF APPEALS

{¶53} The trial court specifically found that after Brooks and Curry were taken

into custody, and after the officers had turned off their BWCs, the officers conducted

a protective sweep of the residence, during which they found contraband in plain view.

The testimony at the suppression hearing supports these factual findings and the

parties do not dispute them.

{¶54} The trial court concluded that the warrantless protective sweep was

lawful because “there were specific and articulable facts for the Cincinnati Police to

search for other assailants, other firearms, and other possible persons in the

residence.” Although we accept the trial court’s findings of fact, we must disagree with

its legal conclusion.

{¶55} A protective sweep is an exception to the warrant requirement. State v.

Mathews, 2015-Ohio-1047, ¶ 10 (2d Dist.); State v. Levengood, 2016-Ohio-1340, ¶ 23

(5th Dist.). “A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others.” Maryland v.

Buie, 494 U.S. 325, 327 (1990); accord State v. Adams, 2015-Ohio-3954, ¶ 188.

Protective sweeps are permissible where the searching officer “possessed a reasonable

belief based on specific and articulable facts which, taken together with the rational

inferences from those facts, reasonably warranted the officer in believing that the area

swept harbored an individual posing a danger to the officer or others.” (Cleaned up.)

Buie at 327; accord State v. Gill, 2024-Ohio-2792, ¶ 95 (1st Dist.). Where a protective

sweep is justified, it must “last[] no longer than is necessary to dispel the reasonable

suspicion of danger.” Buie at 335-336; Gill at ¶ 95.

{¶56} First, contrary to the trial court’s holding, a protective sweep does not

permit officers to search for “other firearms.” The purpose of a protective sweep is not

to search for weapons, but rather to ensure “that the area swept [does not] harbor[] an

19 OHIO FIRST DISTRICT COURT OF APPEALS

individual posing a danger to the officer or others.” Buie at 327.

{¶57} Second, there were not “specific and articulable” facts in this case to

support a reasonable belief that the apartment harbored an individual that could pose

a danger to the officers. See Buie, 494 U.S. at 327. The officers responded to 5489

Gardenview Lane in response to a report that an individual was firing gunshots in the

street. They saw the individual in question dispose of the firearm outside and they

recovered the weapon. The officers subsequently entered the apartment, secured both

Brooks and Curry, and removed them from the apartment.

{¶58} It was not until Brooks and Curry were taken outside that the officers

conducted the first protective sweep. And at that time, they had not been presented

with any “specific and articulable facts” that the apartment harbored an individual that

could pose a danger to their safety. The BWCs showed that, before breaching entrance

into the apartment, the officers had surveilled it for approximately 15 minutes. There

was no testimony at the suppression hearing that, during that period, the officers saw

or suspected that anyone else entered the apartment.

{¶59} Other than the back bedroom, the officers could plainly see that the

apartment harbored no other individual. And Officer Wolff testified that the officers

had not heard anyone else moving around the apartment. No officer testified that

police were concerned that there was another person in the bedroom. This lack of

concern is evident from the officers’ comments on the BWC recordings. It was clear

that officers were only concerned that there was an aggressive dog in the bedroom.

{¶60} The facts of this case are similar to those in State v. McLemore, 2012-

Ohio-521 (2d Dist.). In McLemore, officers responded to a call for a domestic dispute.

Id. at ¶ 3. The defendant exited from the apartment that officers had surrounded and

was secured. Id. Several officers then entered the residence to conduct a protective

20 OHIO FIRST DISTRICT COURT OF APPEALS

sweep because they were concerned that it might harbor other individuals that could

pose a threat to them as they detained the defendant. Id. During the protective sweep,

officers saw shotgun shells and a gun cabinet with a firearm missing. Id.

{¶61} The trial court held that the protective sweep of the apartment was

unconstitutional, id. at ¶ 5, and the Second District agreed, id. at ¶ 14. The Second

District noted, “No perpetrators other than Defendant were implicated in the domestic

violence incident for which Defendant was arrested,” and that, after the defendant was

taken into custody, “there was no suggestion either that another person or persons

remained inside that residence or that they posed a threat to the safety of the officers

or others.” Id. at ¶ 11. The court further explained,

Upon arrival, four police officers surrounded the house, and they did

not see anyone or hear any voices coming from inside the home. The

officers never asked defendant if anyone else was inside the home, and

they did not knock on the door or call out to inquire about any other

person’s presence. After defendant exited the home and was taken into

police custody outside the home, he no longer had access to any

weapons or evidence inside the residence and posed no threat to the

officers or anyone else.

Id. at ¶ 12. The court rejected an argument that the protective sweep was justified

because the officers were unaware if anyone else was in the apartment, stating, “Not

knowing whether anyone else was inside the residence is an insufficient pretext for a

protective sweep to learn whether anyone is, in fact, inside.” Id. at ¶ 13.

{¶62} The facts of this case are also similar to State v. Sharpe, 2008-Ohio-267

(2d Dist.). In Sharpe, the police had a warrant to arrest Sharpe on a domestic-violence

charge. Id. at ¶ 3. After receiving a tip that Sharpe could be found at a particular

21 OHIO FIRST DISTRICT COURT OF APPEALS

residence and that he might have a firearm, officers were dispatched to the specified

location. Id. at ¶ 5. After several hours, Sharpe exited from the residence, surrendered

to the police, and was taken into custody. Id. at ¶ 9. Officers then entered the residence

to conduct a protective sweep, where they discovered drugs. Id. at ¶ 10 and 14. Sharpe

filed a motion to suppress challenging the warrantless protective sweep of the

residence. Id. at ¶ 18. The trial court denied the motion. Id. at ¶ 19.

{¶63} The Second District reversed. Id. at ¶ 47. It explained that before a

protective sweep may be conducted, officers must have “some positive indication that

another person or persons remain in the residential premises where a subject is

arrested and that they pose a threat to the safety of officers or others.” Id. at ¶ 46. The

court noted that “[m]ere suspicion” that a weapon may be inside a residence is

insufficient to justify a protective sweep, as is lack of knowledge as to whether any

other persons are present. Id.

{¶64} As in McLemore and Sharpe, once the officers in this case secured

Brooks and Curry outside of the apartment, those two individuals no longer had access

to any weapons, and the officers had no suggestion or reason to believe that any other

person was in the residence. Under these circumstances, the officers lacked “a

reasonable belief, based on specific and articulable facts,” that the apartment

“harbored an individual posing a danger to the officer[s] or others.” (Cleaned up.) See

Buie, 494 U.S. at 327.

{¶65} The State, to its credit, seems to concede this determination. It stated in

its appellate brief that “to the extent that [Curry] raised the propriety of the ‘protective

sweep’ in the first place, Defendant may actually have a fair point.” The State

elaborated on this concession, stating,

While the trial court ultimately found to the contrary, here the officers

22 OHIO FIRST DISTRICT COURT OF APPEALS

offered little in the way of ‘specific and articulable facts,’ beyond that of

the closed bedroom door, that would have reasonably led them to

believe that a ‘protective sweep’ was necessary in order to ensure their

safety from some undetermined third party after they had already

arrested and removed Defendant and Brooks (and themselves) from the

apartment.

{¶66} We accordingly hold that the warrantless protective sweeps, during

which the officers saw the drugs and weapon in plain view, were conducted in violation

of Curry’s rights under the Fourth Amendment to the United States Constitution and

Article 1, Section 14 of the Ohio Constitution.

C. Inevitable Discovery

{¶67} The State argues that even if the protective sweeps are found to be

unconstitutional, the motion to suppress was nonetheless properly denied because the

firearm recovered from the bedroom was subject to inevitable discovery. In support,

the State argues that the officers, after having secured Curry and Brooks, were still

responsible for retrieving and securing care for the dog that was contained in the

bedroom. When the officers did so, the State posits, they would have discovered the

firearm in plain view on the bed.

{¶68} “Under the inevitable-discovery exception to the exclusionary rule,

illegally obtained evidence is admissible at trial if it is established that the evidence

would have ultimately or inevitably been discovered during the course of a lawful

investigation.” State v. Pippin, 2017-Ohio-6970, ¶ 19 (1st Dist.). We need not reach the

merits of the State’s inevitable-discovery argument because it waived the argument by

failing to argue it below.

{¶69} The State did not file a response to Curry’s motion to suppress or his

23 OHIO FIRST DISTRICT COURT OF APPEALS

supplemental brief in support of closing argument. And it did not argue inevitable

discovery at the suppression hearing. Under these circumstances, the State has waived

any argument regarding inevitable discovery. See State v. Oliver, 2023-Ohio-1550,

¶ 98 (10th Dist.) (holding that the State waived the issue of inevitable discovery for

appeal where it did not argue inevitable discovery in the trial court); see also State v.

Fann, 2007-Ohio-6985, ¶ 38 (8th Dist.); State v. Bing, 134 Ohio App.3d 444, 449 (9th

Dist.).

{¶70} Because the protective sweeps were conducted in contravention of

Curry’s rights under the Fourth Amendment to the United States Constitution and

Article 1, Section 14 of the Ohio Constitution, the trial court erred in denying Curry’s

motion to suppress. Curry’s first assignment of error is accordingly sustained.

{¶71} Our holding renders moot Curry’s remaining arguments under his first

assignment of error and his second assignment of error, in which he argues that the

trial court erred in the imposition of sentence.

III. Conclusion

{¶72} For the foregoing reasons, we hold that the trial court erred by denying

Curry’s motion to suppress. We therefore reverse the judgment of conviction and

remand the cause to the trial court for further proceedings consistent with the law and

this opinion.

Judgment reversed and cause remanded.

NESTOR, J., concurs. ZAYAS, P.J., dissents.

ZAYAS, P.J., dissenting.

{¶73} I must respectfully dissent because Curry waived the issue of whether

the warrantless search was unconstitutional. The record establishes that the motion

24 OHIO FIRST DISTRICT COURT OF APPEALS

itself challenged the veracity of the search-warrant affidavit, any mention of protective

sweeps in the filed motion was insufficient to meet the particularity requirements of

Crim.R. 47, the memorandum failed to include any legal authority regarding a

protective sweep, and the trial court understood that the sole issue challenged by the

motion was the veracity of the affidavit. Additionally, even if it could be said that the

motion properly included a challenge to the protective sweeps, at the outset of the

hearing, the defense confirmed that the sole challenge was to the search warrant,

which is further supported in Curry’s appellate brief where he admitted that the

motion was limited to the veracity of the affidavit.

{¶74} Consequently, Curry waived his opportunity to raise this additional

suppression issue on appeal. See State v. Gales, 2022-Ohio-776, ¶ 14 (9th Dist.), citing

State v. Walters, 2012-Ohio-2429, ¶ 6 (9th Dist.), and State v. Brown, 2006-Ohio-

1905, ¶ 7 (9th Dist.); State v. Schindler, 70 Ohio St.3d 54, 58 (1994) (“By requiring the

defendant to state with particularity the legal and factual issues to be resolved, the

prosecutor and court are placed on notice of those issues to be heard and decided by

the court and, by omission, those issues which are otherwise being waived.”); State v.

Fricke, 2016-Ohio-2747, ¶ 24 (2d Dist.) (“If a motion to suppress fails to state a

particular basis for relief, that issue is waived and cannot be argued on appeal.”); State

v. Wintermeyer, 2019-Ohio-5156, ¶ 18, quoting State v. Peagler, 76 Ohio St.3d 496,

500 (1996) (“when a defendant makes stipulations or narrows the issues to be decided

at a suppression hearing, the prosecution need not ‘prove the validity of every aspect

of the search.’”).

Franks Motion to Suppress

{¶75} Curry filed a motion entitled “Motion for Franks Hearing and to

Suppress Evidence” seeking to suppress the evidence obtained pursuant to the search

25 OHIO FIRST DISTRICT COURT OF APPEALS

warrant because the warrant was granted based on false statements. The motion

challenged the validity of the search warrant pursuant to Franks v. Delaware, 438

U.S. 154 (1978). See State v. Scott, 2003-Ohio-5011, ¶ 16 (7th Dist.) (Generally, a

challenge to the veracity of a warrant’s supporting affidavit is made through a Franks

motion, named for the aforementioned case of Franks v. Delaware.). “The gist of

Franks is that if a credible challenge is made to the veracity of an affidavit used to

secure a search warrant, a hearing must be afforded the defendant to allow him to

proffer evidence to show that the information in the affidavits [was] intentionally or

recklessly false.” State v. Taylor, 2010-Ohio-6580, ¶ 19 (4th Dist.).

{¶76} At the hearing, the defendant must establish by a preponderance of the

evidence that the affiant, in this case, a law-enforcement officer, intentionally or

recklessly included a false statement in the affidavit. See Franks at 156. If the

defendant meets his burden of proof, the court must then redact the false statement

from the search-warrant affidavit and determine whether the remaining allegations

are sufficient to support a finding of probable cause. See id. If the remaining

statements fail to establish probable cause, “the search warrant must be voided and

the fruits of the search excluded.” Id.

{¶77} In his motion, Curry alleged that the affidavit in support of the search

warrant “was intentionally false and recklessly disregarded the truth about [a baggie

containing a white substance, a baggie containing blue pills next to a digital scale, and

a handgun] being in plain view.” Curry further argued that absent the false statements,

“the affidavit provided insufficient probable cause for a search warrant.” In his request

for relief, Curry specifically sought a hearing on the Franks motion and an order

suppressing all the evidence obtained during the search because there was no probable

cause to issue the search warrant.

26 OHIO FIRST DISTRICT COURT OF APPEALS

{¶78} Crim.R. 47 unambiguously requires any pretrial motion to “state with

particularity the grounds upon which it is made and shall set forth the relief or order

sought.” See Crim.R. 47 (A motion “shall state with particularity the grounds upon

which it is made and shall set forth the relief or order sought. It shall be supported by

a memorandum containing citations of authority, and may also be supported by an

affidavit.”); State v. Toran, 2023-Ohio-3564, ¶ 36 (Gallagher, J., concurring). “By

requiring the defendant to state with particularity the legal and factual issues to be

resolved, the prosecutor and court are placed on notice of those issues to be heard and

decided by the court and, by omission, those issues which are otherwise being waived.”

Toran at ¶ 36, citing Shindler, 70 Ohio St.3d at 58 (collecting cases); State v. F.O.E.

Aerie 2295, 38 Ohio St.3d 53, 54-55 (1988) (failure to comply with Crim.R. 47 results

in waiver of the argument).

{¶79} Accordingly, to suppress evidence obtained pursuant to a warrantless

search, the defendant is required to “raise the grounds upon which the validity of the

search or seizure is challenged in such a manner as to give the prosecutor notice of the

basis for the challenge.” Xenia v. Wallace, 37 Ohio St.3d 216, 219 (1988). The

prosecutor is not required to anticipate the specific legal and factual grounds for a

defendant’s challenge to a warrantless search. Id. at 218. “The prosecutor must know

the grounds of the challenge in order to prepare his case, and the court must know the

grounds of the challenge in order to rule on evidentiary issues at the hearing and

properly dispose of the merits.” Id. To that end, the defendant must clarify the legal

and factual grounds upon which the defendant challenges the evidence so that the

prosecutor may adequately prepare for the suppression hearing. Id.

{¶80} In this case, it is undisputed that the Franks motion met the Crim.R. 47

particularity and specificity requirement. The motion set forth the specific statements

27 OHIO FIRST DISTRICT COURT OF APPEALS

in the affidavit that Curry alleged were false, the reasons he believed the statements

were false, citations to the relevant legal authority, Franks v. Delaware, and the relief

requested was a Franks hearing and an order suppressing the evidence seized

pursuant to the search warrant. However, the motion did not challenge the protective

sweeps with the required particularity and specificity. The motion itself did not

specifically challenge the constitutionality of the warrantless protective sweeps, is

devoid of any citations to legal authority specific to protective sweeps, and the

requested relief did not mention a warrantless search or a protective sweep. See

Crim.R. 47; Toran at ¶ 32, (pointing out that the motion to suppress was deficient

because defendant failed to challenge the impoundment policy and the motion

contained “[n]o legal authority in support of that proposition.”).

{¶81} Further Curry even acknowledged his waiver in his appellate brief.

Under the “Statement of the Case,” Curry confirmed that he raised one discreet issue

in his motion to suppress. He explained that the motion challenged the adequacy of

the affidavit in support of the search warrant issued for his residence. Curry discussed

nothing further as a basis for the motion to suppress. Thus, Curry’s brief is consistent

with the prayer for relief in the Franks motion seeking to exclude all evidence seized

during the search “because there was no probable cause to issue a search warrant.”

{¶82} Accordingly, I conclude that Curry did not state with particularity that

he was also challenging the protective sweeps or requesting to exclude any evidence

obtained during a warrantless search as required by Crim.R. 47.

The Limited Scope of the Hearing

{¶83} Even if the motion complied with Crim.R. 47, Curry limited the scope of

the hearing to a Franks challenge. At the outset of the hearing, the State and the court

were properly apprised that Curry sole’s challenge concerned the veracity of the

28 OHIO FIRST DISTRICT COURT OF APPEALS

warrant. Accordingly, Curry waived that protective-sweep argument. See id.; F.O.E.

Aerie 2295, 38 Ohio St.3d at 54-55.

{¶84} “[W]hen a defendant makes stipulations or narrows the issues to be

decided at a suppression hearing, the prosecution need not ‘prove the validity of every

aspect of the search.’” Wintermeyer, 2019-Ohio-5156 at ¶ 18, quoting Peagler, 76

Ohio St.3d at 500; State v. Jackson, 2021-Ohio-517, ¶ 10 (1st Dist.) (although

defendant raised the issue in his motion to suppress, he waived the issue by limiting

the issues in open court).

{¶85} At the beginning of the suppression hearing, the trial court confirmed

that “[a]s to the motion to suppress, since this is a search warrant, the burden is on

the defense. So the burden is on you, [defense counsel].” Significantly, Curry did not

dispute, contradict, or clarify the court’s characterization that the sole issue was the

validity of the search warrant. Rather, Curry directly responded with the basis of his

motion in his opening statement as follows:

Judge, I submitted a motion for a Franks hearing and to

suppress evidence. The basis of that motion is officers were called to

5489 Gardenview Lane. There was a 911 call. Officers arrived on scene.

They made entry and had contact with Mr. Shawn Curry.

After they had contact with him, the officers filed for a search

warrant. The search warrant is not on body camera, however, there are

some body-camera footage -- there is body-camera footage before the

search warrant that does reveal that some of the things that were stated

in the search warrant were not correct.

They were false and recklessly disregarded the truth. Because

those statements were false and recklessly disregarded the truth, and

29 OHIO FIRST DISTRICT COURT OF APPEALS

without those statements in the search warrant, there was no probable

cause for the officers to search.

{¶86} Accordingly, Curry confirmed that the sole issue to be decided was

whether the affidavit contained false statements rendering the search warrant invalid.

When the court stated that the defense had the burden of proof because Curry was

challenging the search warrant, Curry did not object or inform the court that he was

also challenging the warrantless search. The trial court understood Curry’s argument

to be a challenge to the search warrant, and when Curry did not dispel the trial court

of that interpretation of his motion, Curry limited his argument to the sufficiency of

the affidavit. See Wintermeyer at ¶ 18 (noting that the State need not prove the

validity of every aspect of a search when the defendant narrows the issues to be

decided at the suppression hearing); Peagler at 500 (explaining that when defendant

narrows the suppression issues, he cannot then complain of an error he himself

induced).

{¶87} While it is true that a suppression motion “is merely a procedural

vehicle to ‘put the ball into play,’” the purpose is to provide notice to the court and the

State of the issues to be decided. See State v. Codeluppi, 2014-Ohio-1574, ¶ 13. In this

case, the record is clear that the only ball Curry put into play, as memorialized by the

court’s inquiry into the scope of the motion, was a challenge to the veracity of the

search-warrant affidavit. Thus, at the onset of the hearing it was established that the

hearing was limited to a challenge to the veracity of the warrant’s affidavit and that

Curry was the only party who carried the burden of proof.

{¶88} Further, during his closing argument, Curry argued that the statements

in the affidavit were false because “they were based on impermissible uses of the plain

view doctrine and protective sweep, rendering probable cause invalid for the search

30 OHIO FIRST DISTRICT COURT OF APPEALS

warrant.” The court inquired if any case law supported the legal proposition that the

“improper use of the plain view doctrine or for a sweep goes to that disregard for the

truth or perjury.” The court reiterated its understanding that Curry had to prove the

“officers perjured themselves or had a reckless disregard for the truth” and that is not

“associated with any plain view doctrine or other issue because those issues deal with

warrantless searches.” The trial court reminded Curry that “[t]he improper sweep and

in plain view are two exceptions to the warrant requirement,” and Curry was

challenging the search warrant. When the court reiterated, “We have a warrant. You

are attacking the warrant,” Curry’s singular response was, “Correct.” Again, Curry

agreed that his challenge was confined to the search warrant and did not orally request

to expand the scope of the hearing to include a challenge to the warrantless search.

{¶89} However, after the hearing, Curry filed a written supplemental closing

argument, without leave of the court, arguing for the first time that the protective

sweeps were unconstitutional and exigent circumstances did not apply. Curry argued

there was no need to conduct protective sweeps once the target of the arrest, Curry,

was arrested and the firearm was recovered. Curry further argued that there was no

indication that there were any other occupants in the residence rendering the

protective sweeps unconstitutional. Curry concluded by contending that “[b]ecause

the entry was unreasonable, evidence seized pursuant to a search warrant based on

probable cause obtained during the warrantless search must be suppressed pursuant

to the derivative evidence rule.”

{¶90} Thus the record demonstrates that after the hearing and the

presentation of evidence concluded, Curry attempted to expand the scope of the

Franks motion in his written closing argument to include an argument that the

warrantless search was unconstitutional. Curry never moved the trial court to amend

31 OHIO FIRST DISTRICT COURT OF APPEALS

his motion or sought leave to file a second motion to suppress to address this issue.

Consequently, Curry waived this issue. See Crim.R. 12(H); City of Columbus v. Ridley,

2015-Ohio-4968, ¶ 23 (10th Dist.) (“Appellant never requested leave, either orally or

in writing, to amend his motion to include the constitutional argument, and the record

contains nothing to support a finding of good cause for relief from the waiver.”).

{¶91} In the trial court’s decision denying the motion to suppress, the court

addressed Curry’s belated new challenge to the protective sweep by finding that

“Defendant does not dispute the call to the police nor by extension their subsequent

response. As such, the court concludes that the police were faced with a sufficient

emergency to permit a warrantless intrusion into the Defendant’s residence.” Because

the constitutionality of the warrantless search was not at issue, the court should not

have addressed this belated argument.

{¶92} Curry argued that during the Franks hearing, one of the officers

admitted to looking for evidence during the protective sweeps. If this testimony

prompted Curry to attempt to expand the scope of the motion, Curry should have

notified the State and the court by moving, either orally or in writing, to challenge the

warrantless search. While a trial court may expand the scope of a suppression hearing

beyond the issues set forth in a suppression motion, it can only do so when “the

matters within the expanded scope were material to the suppression sought, and so

long as the State had a reasonable opportunity to prepare itself for the hearing.” State

v. Fowler, 2016-Ohio-5940, ¶ 23 (5th Dist.), citing State v. Byrnes, 2014-Ohio-1274,

¶ 12 (2d Dist.), quoting State v. Blackburn, 1994 Ohio App. LEXIS 1171, *4 (2d Dist.

Mar. 23, 1994).

{¶93} In this case, the issue in front of the trial court was whether the affidavit

contained two false statements. Once the court determined that Curry failed to prove

32 OHIO FIRST DISTRICT COURT OF APPEALS

the statements were false, the court should have overruled the motion without

addressing the protective-sweep issue because it was immaterial to whether the

statements were false. See id.

{¶94} Moreover, the State was not afforded an opportunity to present

evidence on the grounds not raised by Curry in his motion to suppress. The first three

paragraphs in the motion generically cited the Ohio Constitution and the Fourth and

Fourteenth Amendments to the United States Constitution. The fourth paragraph

discussed voiding a search warrant and cited exclusively to Franks v. Delaware, and

the fifth paragraph explained the alleged falsehoods in the affidavit submitted by

Wolff. The next four paragraphs were focused on countering potential arguments of

the State preceded by “[t]he State may try to argue” and “[t]he State cannot assert.” I

cannot interpret these arguments as a specific challenge to the warrantless search that

occurred prior to the receipt of the warrant. The last paragraph requested a Franks

hearing and an order suppressing all evidence because “there was no probable cause

to issue a search warrant.”

{¶95} During the hearing, the State focused on proving that the affidavit

contained no falsehoods. The record contains limited evidence regarding the

warrantless search and no argument regarding inevitable discovery because Curry

failed to challenge the warrantless search as a basis to suppress evidence either in his

motion to suppress or at the hearing on that motion. I cannot hold that the State

waived a protective-sweep argument or an inevitable-discovery argument when it

lacked notice of the issues, and therefore, had no opportunity to address the issues.

{¶96} Curry himself conceded in his brief that “he filed a motion to suppress

the evidence recovered in the apartment where he was arrested on the basis that the

search warrant was obtained with an affidavit that was knowingly and intentionally,

33 OHIO FIRST DISTRICT COURT OF APPEALS

or with reckless disregard, untruthful.” Curry also requested a plain-error review for

any suppression issues that were not preserved for appeal without specifying what

issues he may have waived. As the State argued in its brief, Curry acknowledged that

waiver applied to his motion to suppress, and if Curry raised any issue with regard to

the protective sweeps, he did so only by implication. The State further argued that “it

is incumbent upon a defendant to ‘raise the grounds upon which the validity of the

search or seizure is challenged in such a manner as to give the prosecutor notice of the

basis for the challenge.’” See Wallace, 37 Ohio St.3d at 219.

The Franks Motion was Properly Denied

{¶97} Because Curry waived his challenge to the warrantless search, I will

address his argument that he satisfied his burden to show the police officer made false

statements in the affidavit for the search warrant.

{¶98} In his motion, Curry alleged that “the affidavit was intentionally false

and recklessly disregarded the truth about these items being in plain view.” Curry

challenged the following two statements in the affidavit:

While the affiant was inside 5489 Gardenview placing Sean Curry into

custody the affiant observed a baggie containing a white powdery

substance believed to be fentanyl and a baggie containing unknown pills

next to a digital scale in plain view on the kitchen counter.

The affiant also observed an unknown make and model semi-automatic

in plain view on the bed in the bedroom.

{¶99} Curry challenged the veracity of two statements on the basis that the

officer lied that the drugs, scale and gun were in plain view. To support this

contention, Curry argued that one photo from the BWC established that the items were

moved, and the fact that the items were moved, established that the affiant lied that

34 OHIO FIRST DISTRICT COURT OF APPEALS

the drugs and scale were in plain view. With respect to the gun, Curry argued that it

was not in plain view because the bedroom door was closed, thus showing the affiant

lied. Curry alleged that Wolff’s testimony that the contraband on the counter was in

plain view was not credible because the officers’ BWCs footage prior to the search did

not show the items on the counter.

{¶100} Wolff testified that he drafted the affidavit to secure the warrant and

signed it under oath. Included in the affidavit was Wolff’s observation of a digital scale

on the kitchen counter. Wolff was provided with a still shot from the BWC showing

the items on the counter. Wolff testified that the scale he observed was not visible

from that angle. Wolff testified that he could see the items while at the scene.

{¶101} Wolff further testified that he observed a bag containing pills and a

digital scale on the kitchen counter. Wolff was presented with a photo he had taken

after the search and explained to the court that “the bag was lined up close to this –

these digital phones. The Febreze bottle was here to the left, and I believe it was at an

angle. And I believe these bags were behind the bag over here.” When he looked, he

could see the drugs as he was conducting the sweep. Once he saw the drugs, he left

the scene to draft the warrant.

{¶102} While he was drafting the search warrant, Wolff received a call from

Dotson informing him that the officers had secured the dog and were able to sweep

the bedroom. Wolff included that information in the affidavit, but testified that in his

haste to draft the affidavit, he made an error. He put “the affiant” observed the

handgun in plain view instead of “brother officers.”

{¶103} In overruling the motion, the court first noted that Curry “specifically

argues that the police did not have probable cause for the issuance of a search warrant

because the police presented an affidavit in support of the search warrant that ‘was

35 OHIO FIRST DISTRICT COURT OF APPEALS

intentionally false and recklessly disregarded the truth about [contraband] being in

plain view.’”

{¶104} The trial court found that that the officers adequately explained the

discrepancy between the BWC still photos, taken prior to the search, and the

photograph taken after the search, and that the testimony was not contradicted by any

other evidence. The court credited Wolff’s testimony and found, “Officer Wolff was

lawfully in place where he could ‘see’ the narcotics. Such a viewing supplies the

necessary probable cause for the issuance of the search warrant.” The court concluded

that, “Defendant only offered the omission of body worn camera as proof of the falsity

of Officer Wolff’s affidavit. This is insufficient to support defendant’s claim.” A review

of the record supports the trial court’s factual findings and legal conclusions.

{¶105} Accordingly, I would overrule Curry’s first assignment of error.

Sentencing

{¶106} In his second assignment of error, Curry argues that the trial court

committed plain error in sentencing Curry to concurrent sentences for counts that

should have merged and ordering the forfeiture of the firearms. The State concedes

the error and agrees the matter should be remanded to allow the State to elect which

counts to proceed upon for sentencing.

Conclusion

{¶107} Therefore, I would overrule the first assignment of error, sustain the

second assignment of error, and remand the matter to the trial court for resentencing.