The Ohio 5th District Court of Appeals reversed the conviction of the Defendant who was caught with Marijuana while performing maintenance on a local Verizon Tower in Ashland, OH.
Summary:
On June 28, 2019 at 1:37 a.m., Lt. James Shreffler of the Ashland Police Department was on patrol in the city of Ashland. He noticed the lights were on at a cell phone tower, and the door was propped open. The gate to the fenced in area around the tower was open, although the lock did not appear to have been tampered with. An unmarked vehicle was present at the tower, and music was playing inside. The officer found it unusual based on his past experience patrolling the area for someone to be working at the tower at that time of night, and was concerned the tower was being
burglarized or vandalized.
Ptl. Leah Ziesler arrived at the scene, and the two officers entered the tower through the open door. Lt. Shreffler went to the left, and made contact with Appellant. Appellant told the officer he was in the tower performing maintenance, and was working at the unusual hour in order to shut down the tower during a time when there was less cell phone traffic. Ptl. Ziesler went to the right upon entering the building, and observed a glass marijuana bong in plain view, as well as a container containing a green substance. Appellant threw his shirt over the items in an attempt to conceal them. Appellant gave consent to search his person and his vehicle. Marijuana was found in a container in his vehicle.
In the instant case, the only fact relied upon by police to establish exigent circumstances was the presence of someone at the tower at an unusual hour. We find all other facts available to the officer pointed to the lawful presence of a person at the scene: there were no signs the lock was cut, both the gate and the door were left open, lights were on, music was playing, and a vehicle was parked in open view. Further, the testimony of the officers demonstrates they were aware they did not have probable cause but only a mere possibility a crime was occurring, and never considered getting a warrant before entering the tower.
The judgment of the Ashland Municipal Court is reversed. This case is remanded to that court for further proceedings according to law, consistent with this opinion.
https://www.starkcountyohio.gov/Star...A.pdf?ext=.pdf
Wonder if the guy is still employed with Verizon?
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