State v. Curry

Citations

• 2025 Ohio 2083

Syllabus

MOTION TO SUPPRESS — WAIVER — PROTECTIVE SWEEP — SEARCH WARRANT — INEVITABLE DISCOVERY: Defendant sufficiently challenged the constitutionality of the protective sweeps before the trial court and did not waive that challenge on appeal where the motion to suppress argued that the search conducted of the defendant's residence was not permitted as a protective sweep, the State tangentially touched on the constitutionality of the protective sweeps during opening statements, a testifying officer was questioned about the protective sweeps by both defendant and the State, defendant argued during closing argument that the protective-sweep doctrine did not justify the warrantless search of his residence, defendant filed a brief in support of closing arguments challenging the constitutionality of the protective sweeps, and the trial court actually ruled on the constitutionality of the protective sweeps in its entry denying defendant's motion to suppress. [But see DISSENT: Defendant waived the right to challenge the protective sweeps where his Franks motion to suppress was limited to challenging the veracity of the affidavit in support of the warrant, and defendant confirmed that the challenge was limited to the search-warrant affidavit.] The protective sweeps of defendant's residence were conducted in violation of defendant's Fourth Amendment rights where, at the time that the protective sweeps were conducted, defendant and a companion had been removed from the residence and arrested, the weapon used in the underlying offense that the police were investigating had been recovered, and the officers had no reasonable or articulable suspicion that the residence harbored any other person posing a danger to the officers or others. The State waived the argument that the illegally-obtained evidence would have been inevitably discovered by failing to raise that argument before the trial court.