[Cite as State v. Neuroth, 2018-Ohio-905.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2017-A-0054
        - vs -                                  :

GABRIELLE ANTOINETTE JOSEPHINE                  :
NEUROTH a.k.a. NEUROTH,
GABRIELLE A.,                                   :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00561.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Marie Lane, Ashtabula County Public Defender, Inc., 4817 State Road, #202,
Ashtabula, OH 44004 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Gabrielle Neuroth, appeals from the judgment of the Ashtabula

County Court of Common Pleas, denying her motion to suppress evidence. At issue is

whether the arresting officers had consent to enter and search the motel room appellant

and her co-defendant, Jason Allen (“Allen), were occupying. For the reasons discussed

in this opinion, we affirm.
        {¶2}    On September 28, 2015, Ashtabula County Sheriff’s Deputy Jay Thomas

was dispatched to the Ho-Hum Motel. The dispatch was prompted by an anonymous

tip that a strong chemical odor was emanating from one of the end rooms. Deputy

Thomas is certified by the Ohio Bureau of Criminal Investigation Clandestine Lab Unit.

As part of his training, he knows the methods and processes relating to the manufacture

of methamphetamine (“meth”). He also has a detailed understanding of the equipment

necessary to manufacture the drug as well as the odors and dangers related to its

manufacture.1

        {¶3}    En route to the motel, Deputy Thomas received a second report of a

possible stolen vehicle. Dispatch provided the deputy with a description of the vehicle

and its license-plate number. The deputy responded to the reports along with Sergeant

Truckey. The officers met at the motel and approached the subject room from an angle

they could not be seen by the occupants. The officers observed the possible stolen

vehicle parked in front of the room. Upon approaching the room’s door, they heard

voices inside. Deputy Thomas knocked on the door and a female responded, “hold on

honey, we’re getting dressed.” The officer did not identify himself. After approximately

60 seconds, he knocked again and received a similar response, but no one answered

the door.

        {¶4}    Deputy Thomas became suspicious that the occupants may be attempting

to leave the room from a rear window. He accordingly walked to the rear of the building


1. The deputy testified, over a 10-year period, he has investigated “well-over a hundred” meth labs.
Moreover, he testified the manufacture of meth is very unsafe “[b]ecause of the exothermic reaction and
the flammable liquid being present, a lot of times the bottles will fail because you have the - - the
exothermic reaction occurring, and it compromises the plastic bottle, and it almost creates like a
flamethrower effect, because you have a pressurized bottle with flammable liquid inside it, and it’s
pressurized and actually will - - I’ve seen houses burn down. I’ve seen people burned up. I mean, it’s - -
it’s bad.”


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to make sure there were no flight attempts. Sergeant Truckey continued to knock and,

between two and five minutes after the officers’ arrival, Allen answered the door.

Deputy Thomas, who was approximately 30 feet away, could hear the sergeant

speaking with Allen. Deputy Thomas stated that the entryway included a screen door

as well as a main door and Sergeant Truckey was standing within the “fold of the screen

door right at the threshold of the door.”

       {¶5}   Deputy Thomas noted Allen was shirtless and wearing only boxer shorts

and, inside the room, appellant was also topless and donning only underwear. The pair

appeared extremely nervous, with trembling hands and speaking in a fast and broken

manner. Allen was told that the officers were investigating a possible stolen vehicle

which matched the vehicle in the parking lot.    According to Deputy Thomas, Allen

appeared relieved after being so advised and retrieved a document indicating he and a

third-party had entered an agreement for the sale of the vehicle. Allen subsequently

invited the officers into the room to discuss the nature of the agreement.      Deputy

Thomas asked Allen if there were any other occupants in the room, who responded in

the negative. He then asked whether he could look to be certain no one else was in the

room. Allen consented and as the deputy proceeded into the room, he recognized the

odor of ammonia gas which, in his training and experience, is unique to the manufacture

of meth. He noted the odor was faint, but was sufficient to support the conclusion that

an active lab was present.

       {¶6}   Given the odor, the deputy asked if he could search the couple’s

belongings and was given permission. He subsequently found a pair of nitrile gloves,

which are commonly used in the manufacture of meth. Due to the deputy’s apparent




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concern that an active lab was present and his testimony regarding the dangers of meth

production, he asked Allen and appellant to leave the room. And Sergeant Truckey

escorted them outside. As the deputy peered under the bed, he noticed the fabric of the

box spring was sagging. He touched the area and felt a firm object in the box spring.

Upon further inspection, the deputy discovered chemical bottles and a gas generator.

Appellant and Allen were placed under arrest.

      {¶7}   According to appellant, she was awakened by knocks at the motel door.

She answered the knocks stating, “hold on, honey, we’re coming.” She then proceeded

to retrieve her clothing, which was spread throughout the room. After about the third

knock, appellant stated the law enforcement officers identified themselves and Allen

opened the door. Appellant maintained once the door was opened, an officer placed his

foot in the doorway and entered the room without permission.          Appellant stated

Sergeant Truckey proceeded to ask Allen about the alleged stolen vehicle, at which

point, Deputy Thomas entered the room without permission. She stated neither she nor

Allen gave the deputy permission to search the room or their belongings. Nevertheless,

he conducted the search, they were removed from the room, placed in handcuffs, and

eventually arrested.

      {¶8}   Appellant was indicted on one count of illegal manufacture of drugs, in

violation of R.C. 2925.04(A)(C)(3)(b), a felony of the first degree; aggravated

possession of drugs, in violation of R.C. 2925.11(A)(C)(1)(d), a felony of the first

degree; one count of illegal assembly or possession of chemicals for the manufacture of

drugs, in violation of R.C. 2925.041(A), a felony of the third degree; and one count of




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tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree.

Appellant pleaded not guilty to the charges and filed a motion to suppress evidence.

      {¶9}   After a hearing, the trial court denied the motion. Appellant subsequently

pleaded no contest to count two, attempted aggravated possession of drugs; count

three, illegal assembly or possession of chemicals for the manufacture of drugs; and

count four, tampering with evidence.       The plea was accepted and appellant was

sentenced to a two-year prison term on count two; a two-year term on count three; and

a two-year term on count four. The sentences were ordered to be served concurrently.

Appellant now appeals and assigns the following as error:

      {¶10} “The trial court erred in overruling appellant’s motion to suppress.”

      {¶11} “‘An appellate court’s review of a motion to suppress presents a mixed

question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332, * * *. In

reviewing the trial court’s findings of fact, an appellate court must give due weight to

inferences drawn from those facts by the trial court because the trial court is in the best

position to resolve questions of fact and evaluate the credibility of witnesses. State v.

Hopfer (1996), 112 Ohio App.3d 521, 548, * * * appeal not allowed (1996), 77 Ohio

St.3d 1488, * * *. Accordingly, an appellate court reviews a trial court’s findings of fact

only for clear error. State v. Russell (1998), 127 Ohio App.3d 414, 416, * * *. A trial

court’s legal conclusions, however, are reviewed by an appellate court de novo. Id. at

416.’ State v. Yeager, 9th Dist. Summit Nos. 21091, 21112, 21120, 2003-Ohio-1808,

¶5.” (Parallel citations omitted.) State v. Guzzi, 11th Dist. Lake No. 2014-L-101, 2015-

Ohio-4426, ¶6.




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       {¶12} Appellant challenges the trial court’s conclusions (1) that Allen invited the

officers into the room and (2) that Allen’s and appellant’s actions after entry (no

protestations that the officers leave) implied they had consent to enter the room. She

also argues even if they had consent to enter the room, Deputy Thomas exceeded the

scope of that consent by conducting a search of the couple’s belongings.

       {¶13} Under the Fourth Amendment, “a search conducted pursuant to a valid

consent is constitutionally permissible.” Schnekloth v. Bustamonte, 412 U.S. 218, 222

(1973). “[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of the

search, he has the burden of proving that the consent was, in fact, freely and voluntarily

given.” Id. (citation omitted). “To rely on the consent exception to the warrant

requirement, the state must show by ‘clear and positive’ evidence that consent was

‘freely and voluntarily’ given.” State v. Posey, 40 Ohio St.3d 420, 427 (1988) (citation

omitted). “[T]he question of whether a consent to a search was in fact ‘voluntary’ or was

the product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances.” Schneckloth, supra, at 227.

       {¶14} Appellant first argues the officers lacked consent to enter the room. She

maintains Sergeant Truckey placed his foot inside the door frame, thereby preventing

Allen from closing the door. Further, she asserts there was no evidence that Allen

expressly invited the officers into the room. We do not agree.

       {¶15} Although the state did not have evidence contradicting appellant’s

testimony that Sergeant Truckey positioned his foot inside the door, Deputy Thomas

testified on direct and on cross-examination, that Allen invited the officers into the room.




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On direct, the prosecutor asked the deputy why he and the sergeant entered the room.

He responded:

       {¶16} Basically it was because we - - Sergeant Truckey was discussing
             more the - - of this issue with the truck. I mean, it was never - -
             discussed anything. It wasn’t like discussed - - walked up to the
             door and said hey, you have a drug meth lab in here. It was more
             of a way of like kind of easing in the situation and not letting them
             know that we were there to investigate something more serious
             than - - than just the truck. And we were actually, I mean, invited
             into the room to discuss this further. (Emphasis added.)

       {¶17} On cross, the deputy noted: “It wasn’t * * * like, hey, come on in and have

coffee, but he’s just like, he - - I mean, I - - I don’t remember exactly, but we were

invited in.” (Emphasis added.)    Moreover, Deputy Thomas testified that once they

entered the room, with Allen’s consent, he asked if he could look around the room to

determine whether there were any other occupants in the room.         At this point, the

deputy identified the distinct odor of ammonia gas inside the room. He then asked

whether he could look into the couple’s bags. According to the deputy, both Allen and

appellant gave him permission and were “completely cooperative.” There was therefore

prima facie evidence that Deputy Thomas had appellant’s and Allen’s consent to both

enter the room and perform the above-mentioned searches.

       {¶18} We recognize appellant testified neither she nor Allen invited or consented

to the officers’ entry or gave Deputy Thomas consent to search the room.

       {¶19} The trial court also acknowledged this evidence, and made the following

findings:

       {¶20} the Court does not find Neuroth’s testimony that the officers never
             had consent to enter or search to be credible or reliable. The Court
             had the opportunity to view each witness upon the stand, their
             manner of testifying, their physical demeanor including facial
             expressions and eye contact with the lawyers and the Judge. The



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             Court finds the testimony of Deputy Thomas to be truthful. The
             Court finds the testimony of Gabrielle Neuroth to be self-serving
             and unbelievable.

      {¶21} In light of the deputy’s testimony, as well of the lack of any protests or

attempts to preclude the officers’ entry and the deputy’s search, we conclude the state

offered clear and positive evidence that the officers had received the occupants’

voluntary permission to enter the room and search the occupants’ belongings.

Accordingly, the trial court did not commit clear error in finding the officers had consent

to enter the room. Appellant’s argument to the contrary lacks merit.

      {¶22} Next, appellant contends the “secondary search” of the room was beyond

the scope of the consent and no exigent circumstances justified the same.

      {¶23} Initiialy, appellant notes that the trial court, in its factual recitation,

observed that appellant testified she and Allen were handcuffed and taken outside of

the room before the meth was discovered. She further points out that the court found

her testimony not credible.    Nevertheless, appellant underscores this aspect of her

testimony was consistent with Deputy Thomas’ testimony. Regardless of whether the

trial court actually found this aspect of her testimony not believable, appellant’s and

Allen’s location at the time the meth lab was found was not essential to the court’s

findings that the deputy had consent and/or that the deputy’s ultimate search and

discovery of the meth lab was proper. The deputy testified:

      {¶24} When I was done searching the entire room, like each separate
            bag, * * * and they basically consented to it, I just found there was
            a bunch of junk, and I was going to get to the bottom of that here in
            a minute. I was again looking for, the meth lab. I knew there was a
            meth lab in there somewhere, and if it was hidden in the air
            conditioner, I don’t know, but I was going to find it; because it’s
            again, I did not want to see, one, that bed go up, people get hurt,
            myself get hurt, so I continued the search. And I located it. At that



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              point they were already - - like they had already been asked to
              leave the room. I was doing a secondary search of the - - of the
              room, because I didn’t find it at first. I mean, honestly, it was
              hidden well.

      {¶25} From the foregoing testimony, it is apparent the officer believed, for safety

reasons, it was necessary to evacuate the room due to the dangers relating to meth

manufacturing. And, in light of his training and the surrounding circumstances, Deputy

Thomas believed there was an active meth lab in the room.

      {¶26} With this in mind, it is unclear that the deputy possessed the occupants’

consent to search every aspect of the room. They gave the deputy consent to search

for additional individuals in the room as well as consent to look through their bags. The

testimony does not establish, however, that they gave the officer carte blanche to

search the entire room.    Assuming, arguendo, the officer’s secondary search was

beyond the scope of the occupants’ consent, however, we hold the trial court did not err

in denying appellant’s motion because the deputy had probable cause and sufficient

exigent circumstances to support the deputy’s actions.

      {¶27} A warrantless search is per se unreasonable under the Fourth

Amendment subject to several exceptions. California v. Acevedo, 500 U.S. 565, 580

(1991). One such exception exists when there is probable cause coupled with the

existence of exigent circumstances. Kirk v. Louisiana, 536 U.S. 635, 638 (2002).

      {¶28} This court has observed:

      {¶29}   With respect to clandestine methamphetamine laboratories, * * *
              the “basic aspects of the exigent circumstances exception are that
              (1) law enforcement officers must have reasonable grounds to
              believe there is immediate need to protect their lives or others or
              their property or that of others, (2) the search must not be
              motivated by an intent to arrest and seize evidence, and (3) there
              must be some reasonable basis, approaching probable cause, to



                                           9
              associate an emergency with the area or place to be searched.”
              United States v. Rhiger, 315 F.3d 1283 (10th Cir.2003). [Other
              citations omitted.]

      {¶30}   Applying the foregoing test, the courts have upheld limited
              warrantless searches when the odor of chemicals associated with
              methamphetamine production was detected coming from a
              residence, the observing officer had extensive knowledge of the
              particular dangers associated with an active methamphetamine
              lab, and there was no evidence offered that agents entered the
              home with an intent to arrest and seize evidence. Rhiger, 315 F.3d
              at 1290-1291; see also, United States v. Erb (C.A.10, 1979) 596
              F.2d 412, 418 (exigent circumstances search upheld where the
              odor of methamphetamine production was evident, the agent had
              extensive experience in the matter of clandestine laboratory
              operations and knowledge of their inherent dangers); United
              States v. Wilson (C.A.9, 1989), 865 F.2d 215, 217; United States
              v. Spinelli (C.A.2, 1988), 848 F.2d 26, 30 (exigent circumstances
              included the volatile nature of chemicals used to manufacture
              methamphetamine, and the likelihood of explosion). But see,
              United States v. Jackson (D.Kan.2002), 199 F.Supp.2d 1081,
              1090 (odor of anhydrous ammonia and suspicion of laboratory do
              not constitute exigent circumstances without evidence of volatile
              nature of chemicals and the danger of explosion); People v. Gott
              (Ill.App.2004), 346 Ill.App.3d 236, 281 Ill. Dec. 279, 803 N.E.2d
              900, 907-908 (odor of chemicals and suspicion of
              methamphetamine lab not enough for public safety exigent
              circumstance without separate evidence that police were also
              aware of the dangerous nature of chemicals). State v. Pape, 11th
              Dist. Ashtabula No. 2004-A-0044, 2005-Ohio-4657, ¶23-24.

      {¶31} The odor of the ammonia gas, along with the discovery of the nitrile

gloves, and the deputy’s extensive training along with evidence of the volatility and

dangers associated with meth manufacturing, provided the officer with probable cause

that an active lab was somewhere in the room. Accordingly, even if the search that led

to the discovery of the meth lab was beyond the scope of the occupants’ initial consent,

we conclude there was probable cause and sufficient exigent circumstances for Deputy

Thomas to proceed with an investigation of the entire room.




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      {¶32} Appellant’s sole assignment of error is without merit.

      {¶33} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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