[Cite as State v. Modreski, 2024-Ohio-1550.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230511 TRIAL NO. 23CRB-6809 Plaintiff-Appellant, : O P I N I O N. vs. :
JAMES MODRESKI, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 24, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Phoebe Cates, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Plaintiff-appellant the city of Cincinnati appeals from the trial court’s
decision granting defendant-appellee James Modreski’s motion to suppress evidence
obtained during a warrantless search of his home. In its sole assignment of error, the
city contends that the warrantless entry into Modreski’s apartment by police was
justified by the emergency-aid exception to the warrant requirement. It does so on the
basis of a report made by a social services worker to police. The report indicated that
an infant’s mother did not heed the recommendation of her child’s physician to take
the baby to the hospital following a diagnosis of “failure to thrive.” The report also
suggested that the mother and baby resided at the apartment occupied by Modreski.
{¶2} Because the information conveyed from the social services worker to the
police did not suggest that the infant was in need of immediate aid, we agree with the
trial court that there were no exigent circumstances justifying the warrantless search
of Modreski’s home. Accordingly, we overrule the city’s sole assignment of error and
affirm the judgment of the trial court.
Factual and Procedural Background
{¶3} The charges against Modreski arose from an encounter with the police
that occurred during a wellness check on his infant granddaughter. After a warrantless
search of his home on April 27, 2023, Modreski was charged with obstructing official
business and resisting arrest. He moved to suppress any evidence obtained from that
search, including his arrest. The trial court held a suppression hearing on September
20, 2023.
{¶4} At the hearing, the parties stipulated that the officers did not have a
warrant to search Modreski’s home on the evening of his arrest. Thus, the state bore
2 OHIO FIRST DISTRICT COURT OF APPEALS
the burden of presenting evidence to justify the search. See Xenia v. Wallace, 37 Ohio
St.3d 216, 218, 524 N.E.2d 889 (1988).
{¶5} A critical piece of evidence presented by the state at the suppression
hearing was the body-worn camera (“BWC”) footage of Officer Nicholas Bicknell.
Bicknell arrived at Modreski’s apartment at approximately 9:01 p.m. in response to a
report from Angel Bell, a case worker with Hamilton County Children’s Services. The
footage from Bicknell’s BWC showed him arriving outside the apartment building and
being greeted by Bell, who provided information as to the basis of the request for
assistance. According to Bell, an infant in the apartment had previously been
hospitalized due to malnourishment, and the infant’s mother requested that the infant
be released from the hospital with a follow-up doctor’s appointment instead. At the
follow-up appointment, which had occurred earlier that day, the doctor recommended
that the infant be admitted to the hospital, because the infant had lost more weight.
The infant’s mother did not follow the recommendation, and Children’s Services was
contacted.
{¶6} On the body-worn camera video, Bell indicated that she had rung the
doorbell to the apartment and that an older gentleman had answered. He confirmed
that the mother and infant did in fact live at the residence, but did not allow Bell to
speak to them without confirming who she was and why she was there. She explained
to the officers that she was not permitted to disclose her purpose for the wellness check
to the man who answered the door since she did not know who he was. In response to
Bicknell’s questions, Bell agreed that her purpose for being at the property was to “talk
to mom.”
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} After speaking with Bell, the officers asked Modreski to open the door.
The officers did not identify themselves or explain why they were there. They then
told Modreski they would arrest him for obstructing official business if he did not open
the door. When they told Modreski that they needed to speak with the infant’s mother,
Modreski responded without opening the door that she was not there.
{¶8} The footage next shows Modreski’s neighbor opening the main door of
the building and inquiring about why the officers were there. Modreski’s neighbor
asked if the officers had a warrant and the officers responded that they were there due
to a report of a malnourished infant. Modreski’s neighbor asked for a few minutes to
speak with Modreski and see what was going on with him. The officers disregarded
the request, pushed past Modreski’s neighbor, and went upstairs to Modreski’s unit.
{¶9} When Modreski opened his door, the officers asked him to step outside.
Modreski refused, and the officers then arrested him. They conducted a sweep of
Modreski’s unit for the infant, but they did not find anyone else on the scene.
{¶10} While on the stand at the suppression hearing, Bicknell testified that
when Modreski was inside the police cruiser, Bell confirmed that the mother had
already taken the infant to the hospital.
{¶11} Bell also testified to the events depicted in Bicknell’s BWC footage. On
cross-examination, Bell conceded that she was only there to speak to the infant’s
mother.
{¶12} Following the hearing, the trial court granted Modreski’s motion and
held that exigent circumstances did not exist for the officers to conduct a warrantless
search of Modreski’s home.
{¶13} The city now appeals.
4 OHIO FIRST DISTRICT COURT OF APPEALS
Exigent Circumstances
{¶14} In its sole assignment of error, the city argues that the trial court erred
in granting Modreski’s motion to suppress.
{¶15} “Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s factual findings if they are supported by
competent and credible evidence, but we review the court’s legal conclusions de novo.”
(Citations omitted.) State v. Buck, 2017-Ohio-8242, 100 N.E.3d 118, ¶ 6 (1st Dist.).
{¶16} In Buck, we explained the exigent circumstances exception to the
warrant requirement:
Warrants are generally required to search a person’s home or his
person unless the exigencies of the situation make the needs of law
enforcement so compelling that the warrantless search is objectively
reasonable under the Fourth Amendment. Where exigent
circumstances exist, a warrantless search is reasonable because there is
compelling need for official action and no time to secure a warrant.
Exigent circumstances allow a warrantless entry into a residence
if probable cause to arrest or to search exists. Police may make a
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[Cite as State v. Modreski, 2024-Ohio-1550.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230511 TRIAL NO. 23CRB-6809 Plaintiff-Appellant, : O P I N I O N. vs. :
JAMES MODRESKI, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 24, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Phoebe Cates, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Plaintiff-appellant the city of Cincinnati appeals from the trial court’s
decision granting defendant-appellee James Modreski’s motion to suppress evidence
obtained during a warrantless search of his home. In its sole assignment of error, the
city contends that the warrantless entry into Modreski’s apartment by police was
justified by the emergency-aid exception to the warrant requirement. It does so on the
basis of a report made by a social services worker to police. The report indicated that
an infant’s mother did not heed the recommendation of her child’s physician to take
the baby to the hospital following a diagnosis of “failure to thrive.” The report also
suggested that the mother and baby resided at the apartment occupied by Modreski.
{¶2} Because the information conveyed from the social services worker to the
police did not suggest that the infant was in need of immediate aid, we agree with the
trial court that there were no exigent circumstances justifying the warrantless search
of Modreski’s home. Accordingly, we overrule the city’s sole assignment of error and
affirm the judgment of the trial court.
Factual and Procedural Background
{¶3} The charges against Modreski arose from an encounter with the police
that occurred during a wellness check on his infant granddaughter. After a warrantless
search of his home on April 27, 2023, Modreski was charged with obstructing official
business and resisting arrest. He moved to suppress any evidence obtained from that
search, including his arrest. The trial court held a suppression hearing on September
20, 2023.
{¶4} At the hearing, the parties stipulated that the officers did not have a
warrant to search Modreski’s home on the evening of his arrest. Thus, the state bore
2 OHIO FIRST DISTRICT COURT OF APPEALS
the burden of presenting evidence to justify the search. See Xenia v. Wallace, 37 Ohio
St.3d 216, 218, 524 N.E.2d 889 (1988).
{¶5} A critical piece of evidence presented by the state at the suppression
hearing was the body-worn camera (“BWC”) footage of Officer Nicholas Bicknell.
Bicknell arrived at Modreski’s apartment at approximately 9:01 p.m. in response to a
report from Angel Bell, a case worker with Hamilton County Children’s Services. The
footage from Bicknell’s BWC showed him arriving outside the apartment building and
being greeted by Bell, who provided information as to the basis of the request for
assistance. According to Bell, an infant in the apartment had previously been
hospitalized due to malnourishment, and the infant’s mother requested that the infant
be released from the hospital with a follow-up doctor’s appointment instead. At the
follow-up appointment, which had occurred earlier that day, the doctor recommended
that the infant be admitted to the hospital, because the infant had lost more weight.
The infant’s mother did not follow the recommendation, and Children’s Services was
contacted.
{¶6} On the body-worn camera video, Bell indicated that she had rung the
doorbell to the apartment and that an older gentleman had answered. He confirmed
that the mother and infant did in fact live at the residence, but did not allow Bell to
speak to them without confirming who she was and why she was there. She explained
to the officers that she was not permitted to disclose her purpose for the wellness check
to the man who answered the door since she did not know who he was. In response to
Bicknell’s questions, Bell agreed that her purpose for being at the property was to “talk
to mom.”
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} After speaking with Bell, the officers asked Modreski to open the door.
The officers did not identify themselves or explain why they were there. They then
told Modreski they would arrest him for obstructing official business if he did not open
the door. When they told Modreski that they needed to speak with the infant’s mother,
Modreski responded without opening the door that she was not there.
{¶8} The footage next shows Modreski’s neighbor opening the main door of
the building and inquiring about why the officers were there. Modreski’s neighbor
asked if the officers had a warrant and the officers responded that they were there due
to a report of a malnourished infant. Modreski’s neighbor asked for a few minutes to
speak with Modreski and see what was going on with him. The officers disregarded
the request, pushed past Modreski’s neighbor, and went upstairs to Modreski’s unit.
{¶9} When Modreski opened his door, the officers asked him to step outside.
Modreski refused, and the officers then arrested him. They conducted a sweep of
Modreski’s unit for the infant, but they did not find anyone else on the scene.
{¶10} While on the stand at the suppression hearing, Bicknell testified that
when Modreski was inside the police cruiser, Bell confirmed that the mother had
already taken the infant to the hospital.
{¶11} Bell also testified to the events depicted in Bicknell’s BWC footage. On
cross-examination, Bell conceded that she was only there to speak to the infant’s
mother.
{¶12} Following the hearing, the trial court granted Modreski’s motion and
held that exigent circumstances did not exist for the officers to conduct a warrantless
search of Modreski’s home.
{¶13} The city now appeals.
4 OHIO FIRST DISTRICT COURT OF APPEALS
Exigent Circumstances
{¶14} In its sole assignment of error, the city argues that the trial court erred
in granting Modreski’s motion to suppress.
{¶15} “Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s factual findings if they are supported by
competent and credible evidence, but we review the court’s legal conclusions de novo.”
(Citations omitted.) State v. Buck, 2017-Ohio-8242, 100 N.E.3d 118, ¶ 6 (1st Dist.).
{¶16} In Buck, we explained the exigent circumstances exception to the
warrant requirement:
Warrants are generally required to search a person’s home or his
person unless the exigencies of the situation make the needs of law
enforcement so compelling that the warrantless search is objectively
reasonable under the Fourth Amendment. Where exigent
circumstances exist, a warrantless search is reasonable because there is
compelling need for official action and no time to secure a warrant.
Exigent circumstances allow a warrantless entry into a residence
if probable cause to arrest or to search exists. Police may make a
warrantless entry into a residence to prevent the imminent destruction
of evidence or to engage in hot pursuit of a fleeing suspect.
The United States Supreme Court and the Supreme Court of
Ohio have recognized a narrower subsect of exigent circumstances
where law enforcement officers need to respond to emergency
situations to protect people from death or serious injury. The
emergency-aid exception allows police to enter a home without a
5 OHIO FIRST DISTRICT COURT OF APPEALS
warrant and without probable cause when they reasonably believe,
based on specific and articulable facts, that a person within the home is
in need of immediate aid. Nevertheless, a warrantless entry justified by
the emergency-aid exception must be strictly circumscribed by the
exigency that initially justified it, and once the emergency has been
alleviated, further intrusion must be sanctioned by a warrant.
(Internal quotation marks and citations omitted.) Id. at ¶ 19-21.
{¶17} By its own terms, the application of the emergency-aid exception is
limited to circumstances requiring immediate aid. Id. at ¶ 21. Indeed, the touchstone
of the emergency-aid exception is the kind of immediacy that characterizes an
emergency. As one Ohio court has explained, this type of exigent circumstance exists
based on “the need to assist persons who are seriously injured or threatened with such
injury.” State v. Gooden, 9th Dist. Summit No. 23764, 2008-Ohio-178, ¶ 5. It is
grounded in the “need to protect or preserve life.” Id.
{¶18} In discussing the applicability of the emergency-aid exception, the Ohio
Supreme Court has used terms that resound in extreme distress. For example, in State
v. Applegate, 68 Ohio St.3d 348, 350, 626 N.E.2d 942 (1994), citing Wayne v. United
States, 318 F.2d 205, 212 (D.C.Cir.1963), the court explained that exigent
circumstances counsel against taking time to obtain a warrant because “people could
well die.” The court has also characterized situations befitting the emergency-aid
exception as placing “life or limb * * * in jeopardy.” State v. Dunn, 131 Ohio St.3d 325,
2012-Ohio-1008, 964 N.E.2d 1037, ¶ 21. We therefore understand the emergency-aid
exception to excuse the warrant requirement in circumstances where the time it takes
to obtain a warrant may place a person’s life in danger.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Case law applying the emergency-aid exception further elucidates the
contours of just what constitutes a need for immediate aid. For example, in State v.
Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 23, police officers
received a dispatch regarding an allegedly armed and suicidal person with a plan to
take his own life upon reaching a certain destination. The situation was literally life-
or-death. Id. Because officers had knowledge of the individual’s concrete and
imminent plan to harm himself, the court held that the officers were justified in
effecting a warrantless traffic stop. Id.
{¶20} Similarly, in State v. Engle, 2d Dist. Montgomery No. 25226, 2013-
Ohio-1818, ¶ 21, officers properly invoked the emergency-aid exception to search a
defendant who was bleeding from his head and staggering. Engle needed immediate
attention to evaluate his head injury, both to protect his life and to prevent further
injury from occurring. Id.
{¶21} Conversely, in State v. Fisher, 5th Dist. Fairfield No. 13 CA 35, 2014-
Ohio-3029, ¶ 41-42, the court held the record was devoid of specific and articulable
facts that a person within the apartment was in need of immediate aid, where police
officers responded to a report of domestic violence and could easily see through the
window of the apartment that no one was in obvious distress. While sounds may alert
police to a need for immediate aid in a domestic violence case, the court noted that
there were no sounds noted coming from the residence. Id. at ¶ 40. On these facts,
the mere allegation that domestic violence was taking place inside the apartment was
insufficient, without more indicia of an immediate emergency, to justify excusing the
warrant requirement. Id. at ¶ 44.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Unlike in Dunn and Engle, the police officers in Fisher did not have a
reasonable belief that they needed to render emergency aid or investigate a life-
threatening situation. Importantly, in Dunn and Engle, the immediacy with which the
officers needed to act supported a finding of exigent circumstances. There, the officers
did not have time to spare. But in Fisher, the court noted there were no facts to
establish why the officers could not have achieved the same results without violating
the sanctity of the residence by obtaining a search warrant. Fisher at ¶ 41.
{¶23} The facts of this case are more akin to the situation in Fisher. While a
report of a malnourished infant is certainly cause for concern, no one testified that that
the infant would not survive without immediate medical intervention. Rather, the
officers understood from Bell that the infant was not thriving and should be seen at
the hospital per a recommendation from her physician. This was not characterized as
a life-or-limb emergency risking the infant’s survival. To the contrary, Bell
characterized the purpose for her presence at the apartment as needing to “talk to
mom,” not to take custody of the child for the purpose of seeking emergency medical
care.
{¶24} The record is therefore devoid of specific and articulable facts that the
infant was in need of immediate aid, and, as a result, the emergency-aid exception to
the warrant requirement did not apply to the officers’ entry and search of Modreski’s
apartment. We accordingly overrule the city’s sole assignment of error and affirm the
judgment of the trial court.
Judgment affirmed.
ZAYAS, P.J., and CROUSE, J., concur.
8 OHIO FIRST DISTRICT COURT OF APPEALS
Please note: The court has recorded its own entry on the date of the release of this opinion.