[Cite as State v. Craw, 2018-Ohio-1769.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MERCER COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 10-17-09

        v.

RICHARD C. CRAW,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 14-CRM-139

                                      Judgment Affirmed

                              Date of Decision:   May 7, 2018




APPEARANCES:

        Michael J. Short for Appellant

        Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-17-09



PRESTON, J.

       {¶1} Defendant-appellant, Richard C. Craw (“Craw”), appeals the

September 5, 2017 judgment entry of sentence of the Mercer County Court of

Common Pleas. He argues that the trial court erred in denying his motions to

suppress. For the reasons that follow, we affirm.

       {¶2} This case stems from the execution of a search warrant issued, in part,

for a travel trailer owned by Craw following an investigation of Craw’s ties to and

involvement in the production of methamphetamine. The search warrant, executed

on September 18, 2014, yielded physical evidence of methamphetamine possession

and manufacturing. On October 17, 2014, the Mercer County Grand Jury indicted

Craw on three counts: Count One of illegal manufacture of drugs in violation of

R.C. 2925.04(A), (C)(3)(a), a second-degree felony; Count Two of illegal assembly

or possession of chemicals for the manufacture of drugs in violation of R.C.

2925.041(A), (C), a third-degree felony; and Count Three of aggravated possession

of drugs in violation of R.C. 2925.11(A), (C)(1)(e), a first-degree felony, with a

major drug offender specification under R.C. 2941.1410(A). (Doc. No. 5). Craw

initially pleaded not guilty to the charges and the specification on October 27, 2014.

(See Doc. No. 27). (See also Oct. 27, 2014 Tr. at 4).

       {¶3} On June 29, 2015, Craw filed a motion to suppress the physical

evidence seized under the search warrant as well as the statements he made to law

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enforcement officers during the execution of the search warrant. (Doc. No. 71).

Craw argued that the search warrant was not supported by probable cause and did

not specify the places to be searched and the items to be seized with sufficient

particularity. (Id.). Craw sought to suppress his statements on grounds that the

statements were made before he was informed of his Miranda rights. (Id.).

        {¶4} After an August 28, 2015 hearing, the trial court denied Craw’s motion

to suppress evidence on October 15, 2015. (Doc. No. 87).

        {¶5} On January 19, 2016, Craw, through his attorney, filed a motion

requesting that the trial court reconsider its judgment denying Craw’s motion to

suppress evidence and issue findings of fact and conclusions of law. (Doc. No. 113).

On February 25, 2016, Craw, pro se, filed a separate motion for reconsideration.

(Doc. No. 122).

        {¶6} On September 12, 2016, the State filed a memorandum in opposition to

the motions for reconsideration. (Doc. No. 161). On September 22, 2016, Craw,

pro se, filed his response to the State’s memorandum in opposition to the motions

for reconsideration. (Doc. No. 168).1

        {¶7} On December 2, 2016, the trial court denied Craw’s motions for

reconsideration. (Doc. Nos. 188, 194).



1
  Craw was represented by counsel until September 2016. Craw eventually executed a waiver of counsel
form on September 14, 2016 and represented himself until a change of plea hearing in July 2017. (See Doc.
Nos. 163, 340). At that time, Craw’s standby counsel resumed his representation of Craw.

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      {¶8} On July 3, 2017, Craw filed a motion with the trial court which the trial

court treated as a renewed motion to suppress evidence. (Doc. No. 324). The trial

court denied Craw’s renewed motion later that day, adopting the entirety of its

October 15, 2015 judgment entry. (Doc. No. 326).

      {¶9} On July 27, 2017, pursuant to a negotiated plea agreement, Craw

entered no contest pleas to Counts One and Two. (Doc. No. 340). The trial court

convicted Craw of those two charges and dismissed Count Three and the

specification. (Doc. No. 346).

      {¶10} On September 5, 2017, the trial court sentenced Craw to four years’

incarceration on count one and 36 months’ incarceration on Count Two for an

aggregate term of seven years’ imprisonment. (Doc. No. 361).

      {¶11} On September 12, 2017, Craw filed a notice of appeal. (Doc. No. 376).

He raises three assignments of error, which we address together.

                           Assignment of Error No. I

      The search warrant was not supported by probable cause.

                          Assignment of Error No. II

      The search warrant was overbroad.

                          Assignment of Error No. III

      The Defendant’s statements were made without the required
      Miranda warnings.



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       {¶12} Each of Craw’s three assignments of error maintains that the trial court

erred in denying his motions to suppress. Accordingly, this court will assess each

of Craw’s assignments of error under the same standard of review.

       {¶13} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as

such, is in the best position to evaluate the evidence and the credibility of witnesses.

Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a

ruling on a motion to suppress, “an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Burnside at

¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s

conclusions of law, however, our standard of review is de novo, and we must

independently determine whether the facts satisfy the applicable legal standard. Id.,

citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

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

in denying his motions to suppress because the search warrant is not supported by

probable cause. Specifically, Craw argues that the information set forth in the

affidavit relied on by the issuing authority in granting the search warrant is not

sufficient to support a finding of probable cause.

       {¶15} The Fourth Amendment to the United States Constitution provides:


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       The right of the people to be secure in their persons, houses, papers,

       and effects, against unreasonable searches and seizures, shall not be

       violated, and no Warrants shall issue, but upon probable cause,

       supported by Oath or affirmation, and particularly describing the

       place to be searched, and the persons or things to be seized.

The probable-cause requirement is “[c]entral to the Fourth Amendment.” State v.

Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 34. “A neutral and detached

judge or magistrate may issue a search warrant only upon the finding of probable

cause.” State v. Young, 146 Ohio App.3d 245, 253-254 (11th Dist.2001), citing

United States v. Leon, 468 U.S. 897, 916 (1984). “Probable cause ‘means less than

evidence which would justify condemnation,’ so that only the ‘probability, and not

a prima facie showing of criminal activity is the standard of probable cause.’” State

v. Gonzales, 3d Dist. Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18,

quoting State v. George, 45 Ohio St.3d 325, 329 (1989).

       In determining the sufficiency of probable cause in an affidavit

       submitted in support of a search warrant, “[t]he task of the issuing

       [authority] is simply to make a practical, common-sense decision

       whether, given all the circumstances set forth in the affidavit before

       him, including the ‘veracity’ and ‘basis of knowledge’ of persons




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       supplying hearsay information, there is a fair probability that

       contraband or evidence of a crime will be found in a particular place.”

George at paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213,

238-239 (1983). In other words, the issuing authority must examine the “totality-

of-the-circumstances” in determining whether probable cause exists to issue a

search warrant. Id. at 329, citing Gates at 238-239.

       {¶16} “When reviewing the sufficiency of an affidavit in support of a search

warrant, both the trial court and the appellate court are limited to the information

that was ‘brought to the attention of the [issuing authority].’” State v. Garza, 3d

Dist. Henry No. 7-13-04, 2013-Ohio-5492, ¶ 10, quoting State v. Graddy, 55 Ohio

St.2d 132, 134 (1978), fn. 1. Frequently, “the reviewing court is bound by the ‘four

corners’ of the affidavit, as that is often the only record available before it.” Id.,

citing State v. OK Sun Bean, 13 Ohio App.3d 69, 71 (6th Dist.1983). In reviewing

an issuing authority’s determination of probable cause, an appellate court’s duty is

not to “conduct[] a de novo determination as to whether the affidavit contains

sufficient probable cause upon which that court would issue the search warrant” but

rather to “ensure that the [issuing authority] had a substantial basis for concluding

that probable cause existed.” George at paragraph two of the syllabus, citing Gates.

“In conducting any after-the-fact scrutiny of an affidavit submitted in support of a

search warrant, trial and appellate courts should accord great deference to the


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[issuing authority’s] determination of probable cause, and doubtful or marginal

cases in this area should be resolved in favor of upholding the warrant.” Id., citing

Gates.

         {¶17} In this case, the issuing authority had a substantial basis for concluding

that probable cause existed to issue the search warrant. Investigator John Barker

(“Barker”) of the Grand Lake Task Force swore to the affidavit supporting the

search-warrant application. (See State’s Ex. 1). In the affidavit, Barker stated that

he had conducted intermittent surveillance on Craw for approximately three months

prior to September 18, 2014. (Id. at 2). Barker further noted in the affidavit that

during this period of surveillance, he routinely observed that Craw was visited at his

residence by several individuals who regularly appeared on the Ohio Pharmacy

Board’s     “Meth     Check”    system—a      database    that   tracks   purchases   of

pseudoephedrine, a substance commonly used to manufacture methamphetamine.

(Id.). Additionally, Barker indicated in the affidavit that when he searched the

“Meth Check” system, Craw was shown as having purchased pseudoephedrine

approximately every 10 to 14 days throughout 2014. (Id.). In the affidavit, Barker

also averred that he received a report from a manager at a Menards home

improvement store in Celina, Ohio to the effect that Craw had been purchasing large

amounts of lye, a substance required for the production of methamphetamine. (Id.).

Barker stated that, in early August 2014, he identified Craw in security camera video


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footage that the Menards manager had indicated was associated with the large lye

purchases. (Id.).

       {¶18} Further, Barker stated that on September 18, 2014, a confidential

informant told him that Craw had assembled the necessary ingredients for the

manufacture of methamphetamine and that Craw would be “cooking”

methamphetamine in a camper west of Celina, Ohio that same evening. (Id. at 2-

3). Barker noted that the confidential informant was a person known to him who

had previously provided reliable, independently corroborated information. (Id. at

2).

       {¶19} In the affidavit, Barker averred that, from his period of surveillance on

Craw, he knew that a vehicle operated by Craw was “frequently at [a] property

located at 2521 Mud Pike [Road], Celina, Ohio.” (Id. at 3). Barker further stated

in the affidavit that, at 5:20 p.m. on September 18, 2014, he conducted surveillance

at the Mud Pike property and saw a tan travel trailer with a brown stripe parked

north of the residence. (Id.). Barker noted that he observed four to five people

going to and from the tan travel trailer. (Id.). Barker averred that a box fan was

positioned in the open door to the travel trailer and that the ambient temperature at

the time he observed the box fan was approximately 70 degrees Fahrenheit. (Id.).

Barker stated that from his training and experience, it is common to ventilate a

methamphetamine “cook” because of the toxicity of the fumes. (Id.).


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       {¶20} We find that, based on the totality of the circumstances detailed in

Barker’s affidavit, the issuing authority had a substantial basis to conclude that

probable cause existed to issue the search warrant and that evidence of

methamphetamine possession, methamphetamine manufacturing, and illegal

assembly of materials used to manufacture methamphetamine would likely be

discovered in Craw’s travel trailer.

       {¶21} On the day that Barker applied for the search warrant, he received

information from an identifiable, reliable confidential informant that Craw had

amassed the materials necessary to manufacture methamphetamine and that he

would be “cooking” methamphetamine in a trailer west of Celina that evening. See

State v. Young, 12th Dist. Clermont No. CA2005-08-074, 2006-Ohio-1784, ¶ 25.

Barker’s earlier surveillance and investigation of Craw and his associates served to

corroborate much of the informant’s tip. From his investigation, Barker learned that

Craw habitually purchased pseudoephedrine.        See State v. Kithcart, 5th Dist.

Ashland No. 12-COA-048, 2013-Ohio-3022, ¶ 11; State v. Gipson, 3d Dist.

Hancock No. 5-09-19, 2009-Ohio-6234, ¶ 21-23. Additionally, Barker discovered

that Craw frequently associated with people who appeared on the “Meth Check”

system. See Young at ¶ 24-25. Barker’s investigation also revealed that Craw had

acquired a large quantity of lye, another chemical used to produce

methamphetamine. See State v. Golubov, 9th Dist. Wayne No. 05CA0019, 2005-


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Ohio-4938, ¶ 15-22 (suggesting that information that Golubov had tried to purchase

anhydrous ammonia, a chemical used to manufacture methamphetamine, could be

properly considered in establishing probable cause to issue a search warrant).

           {¶22} Furthermore, from his investigation, Barker knew that a vehicle

operated by Craw was often parked at a property west of Celina. After Barker

received the informant’s tip, he drove to the property, where he observed multiple

people moving in and out of the travel trailer. He also observed a box fan operating

in the open door of the travel trailer and, based on his experience and training, he

stated that the fan was consistent with the ventilation required for methamphetamine

labs. See State v. Ash, 4th Dist. Pickaway No. 15CA1, 2015-Ohio-4974, ¶ 2, fn. 1

(noting that the use of a box fan for ventilation is consistent with the operation of a

methamphetamine lab). In sum, based on the totality of the circumstances conveyed

in the affidavit, we find that the issuing authority had a substantial basis for

concluding that there was probable cause to issue a warrant to search the travel

trailer.

           {¶23} Craw’s arguments to the contrary are unpersuasive. Craw argues that

the affidavit was insufficient to support a finding that there was probable cause to

search his trailer because Barker could not produce statements or video evidence

from Menards to support his averment in the affidavit that he learned of Craw’s lye

purchases from a Menards manager.           Craw also argues that the information


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regarding the lye purchases could not support a finding of probable cause because

the affidavit does not indicate when Barker received the information other than that

it was “previously” provided to him. Finally, Craw argues that the mere fact that

someone purchases cold medicine and associates with people who purchase cold

medicine does not support a finding of probable cause. It may be true that any one

of the averments to which Craw objects, taken in isolation, would not support a

finding of probable cause. Ideally, Barker’s affidavit would have laid out the dates

and quantities of Craw’s lye purchases with a greater degree of specificity, and

Barker would have supplied the issuing authority with some documentary evidence

corroborating the Menards manager’s report concerning Craw’s lye purchases.

Craw is also correct that purchasing cold medicine and associating with people who

purchase cold medicine are not inherently criminal. However, the existence of

probable cause hinges on whether a consideration of a totality of the circumstances,

taken together, leads to a conclusion by the issuing magistrate that there is a fair

probability that contraband or evidence of a crime will be found in a particular place,

not whether any one of those circumstances would independently support that

conclusion. See Young at ¶ 26 (“‘Probable cause is the sum total of layers of

information * * *. We weigh not individual layers but the “laminated” total.’”),

quoting United States v. Nigro, 727 F.2d 100, 104 (6th Cir.1984).




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       {¶24} In his second assignment of error, Craw argues that the trial court erred

in denying his motions to suppress because the search warrant is overbroad.

Specifically, Craw argues that the search warrant’s reference to “materials used in

the production of drugs, including, but not limited to, precursors as defined in Ohio

Revised Code Section 3719.41” and the search warrant’s failure to explicitly

mention methamphetamine compel the conclusion that the search warrant does not

satisfy the Fourth Amendment’s particularity requirement.

       {¶25} “Pursuant to the Fourth Amendment and Section 14, Article I, Ohio

Constitution, only warrants ‘particularly describing the place to be searched and the

person or things to be seized’ may issue.” Gonzales, 2014-Ohio-557, at ¶ 30. “The

manifest purpose of the Fourth Amendment’s particularity requirement is to prevent

general searches.” State v. Swing, 12th Dist. Clermont No. CA2016-10-068, 2017-

Ohio-8039, ¶ 40, citing State v. Widmer, 12th Dist. Warren No CA2011-03-027,

2012-Ohio-4342, ¶ 45, citing Maryland v. Garrison, 480 U.S. 79, 84 (1987). “By

requiring a particular description of the items to be seized, the Fourth Amendment

‘prevents the seizure of one thing under a warrant describing another. As to what is

to be taken, nothing is left to the discretion of the officer executing the warrant.’”

Gonzales at ¶ 30, quoting Marron v. United States, 275 U.S. 192, 196 (1927).

       {¶26} “Particularization with respect to the things to be seized actually

encompasses two distinct, albeit related, concerns: ‘one is whether the


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warrant supplies enough information to guide and control the agent’s judgment in

selecting what to take * * * and the other is whether the category as specified is too

broad in the sense that it includes items that should not be seized.’” Id. at ¶ 31,

quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir.1999); Castagnola, 145

Ohio St.3d 1, 2015-Ohio-1565, at ¶ 79.

       {¶27} “In determining whether a search warrant satisfies the Fourth

Amendment’s particularity requirement, reviewing courts employ a standard of

practical accuracy rather than technical precision.” Gonzales at ¶ 32, citing United

States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009). “‘[A] search warrant is not

to be assessed in a hypertechnical manner [and need not satisfy the] “[t]echnical

requirements of elaborate specificity once exacted under common law pleadings.”’”

Id., quoting United States v. Srivastava, 540 F.3d 277, 289 (4th Cir.2008), quoting

United States v. Ventresca, 380 U.S. 102, 108 (1965). A search warrant will be held

sufficiently particular if it allows the executing officer to reasonably ascertain and

identify the items that they are authorized to seize and distinguish those items from

items that they may not seize. Swing at ¶ 40, citing Widmer at ¶ 45, citing State v.

McCroy, 6th Dist. Wood Nos. WD-09-074 and WD-09-090, 2011-Ohio-546, ¶ 37

and United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir.1991); Gonzales at ¶

32, quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988), fn. 12.

       {¶28} In this case, the search warrant reads, in its relevant part, as follows:


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       From the affidavit sworn to before me, which is attached to the

       original of this Search Warrant, I find probable cause exists to issue

       this Warrant.

       ***

       The property to be searched for and seized is described as follows:

       Drugs and drug paraphernalia, including, but not limited to materials

       used in the production of drugs, including but not limited to precursors

       as defined in Ohio Revised Code Section 3719.41, scales, monies,

       packaging materials, weapons used to protect drugs and money and

       any recording or monitoring devices used in the facilitation of drug

       transactions; any records indicating ownership of drugs and

       contraband items; any books, records, receipts, bank statements, etc.

       evidencing the obtaining, secreting, transfer or concealment of assets

       and/or the secreting, transfer, concealment or expenditure of money

       and the person of anyone found inside the premise to be searched.

(State’s Ex. 1 at 6).

       {¶29} On appeal, Craw contends that the search warrant does not comply

with the Fourth Amendment because it gave searchers “carte blanche to search for

anything related to every drug.” (Appellant’s Brief at 6). In particular, Craw

contends that the search warrant’s reference to “precursors as defined in Ohio


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Revised Code Section 3719.41” fails the particularity requirement because “[R.C.

3719.41] defines all controlled substances.” (Id.). Craw also argues that the

warrant’s description of the items to be seized is defective because the search

warrant does not specifically authorize law enforcement officers to seize

methamphetamine.

       {¶30} “A search warrant that includes broad categories of items to be seized

may nevertheless be valid when the description is ‘“‘as specific as the circumstances

and the nature of the activity under investigation permit.’”’” Castagnola, 145 Ohio

St.3d 1, 2015-Ohio-1565, at ¶ 80, quoting Guest v. Leis, 255 F.3d 325, 336 (6th

Cir.2001), quoting United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988),

quoting United States v. Blum, 753 F.2d 999, 1001 (11th Cir.1985). Here, a fair

reading of the search warrant discloses that the only items which law enforcement

officers are authorized to seize are those that bear a connection to the crimes of drug

possession and drug manufacturing. See State v. Bangera, 11th Dist. Geauga No.

2015-G-0021, 2016-Ohio-4596, ¶ 50 (“[A] search warrant containing a list of

generic items likely to be found in the possession of a drug trafficker is not

overbroad where the warrant limits the items to be seized to items that are related to

the offenses of drug possession and drug trafficking.”), citing Gonzales, 2014-Ohio-

557, at ¶ 34 and Young, 2006-Ohio-1784, at ¶ 33. Thus, the search warrant is not

fatally unparticular for failing to mention methamphetamine by name.


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       {¶31} Moreover, the warrant’s reference to “precursors as defined in Ohio

Revised Code Section 3719.41” does not make the search warrant unconstitutionally

indefinite. Under R.C. 3719.41, “precursors” are a small and narrow class of

substances: immediate precursors to amphetamine and methamphetamine and

immediate precursors to phencyclidine (PCP). R.C. 3719.41, Schedule II (F)(1)-

(2). Thus, contrary to Craw’s assertion that the warrant’s reference to R.C. 3719.41

does not impose a meaningful limitation on the items authorized to be seized, the

warrant’s use of the phrase “precursors as defined in Ohio Revised Code Section

3719.41” authorizes, at most, the seizure of the immediate precursors of only three

controlled substances.

       {¶32} Finally, construing the search warrant with the attached affidavit

removes any lingering ambiguities as to the authorized scope of the search and

seizure.   We recognize that “[t]he Fourth Amendment by its terms requires

particularity in the warrant, not in the supporting documents.” Groh v. Ramirez,

540 U.S. 551, 557 (2004), citing Massachusetts v. Sheppard, 468 U.S. 981, 988

(1984), fn.5 and United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir.1999).

However, warrants may satisfy the particularity requirement by being interpreted

with reference to an affidavit incorporated into the warrant or physically attached

thereto. See United States v. Hurwitz, 459 F.3d 463, 470-473 (4th Cir.2006);

Baranski v. Fifteen Unknown Agents of Bur. of Alcohol, Tobacco & Firearms, 452


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F.3d 433 (6th Cir.2006). See also Groh at 557-558. Here, the search warrant

expressly references the affidavit used to support the application for the search

warrant and states that the affidavit is attached to the warrant. (State’s Ex. 1 at 6).

The affidavit contains a list of the property to be searched for and seized identical

to the list set forth in the warrant. (Id. at 1). The affidavit further states that the list

of property to be searched for and seized “is involved with a violation of Ohio

Revised Code Section 2925.11, 2924.04 and 2925.041.”2                               (Id.).    Finally, the

affidavit repeatedly refers to methamphetamine and methamphetamine production.

(Id. at 2-3).

         {¶33} Construing the search warrant with the attached affidavit, it is clear

that the search warrant sharply constrained the discretion of law enforcement

officers and authorized them to search for and seize only those items that were

related to violations of R.C. 2925.11, 2925.04, and 2925.041. See Gonzales, 2014-

Ohio-557, at ¶ 33-34. Because the affidavit refers exclusively to methamphetamine

and the manufacture of methamphetamine, it is clear that the “drugs,” “drug

paraphernalia,” “materials used in the manufacture of drugs,” and “precursors as

defined in Ohio Revised Code Section 3719.41” refer specifically to




2
  R.C. 2925.11 and 2925.041 concern possession of controlled substances and illegal assembly or possession
of chemicals for manufacture of drugs, respectively. The affidavit’s recital of a possible violation of R.C.
2924.04, a nonexistent statutory provision, is likely a typographical error. R.C. 2925.04 concerns the illegal
manufacture of drugs, a charge to which Craw ultimately pleaded no contest, and it is probable that the affiant
intended to reference this provision.

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methamphetamine, materials used to produce methamphetamine, precursors to

methamphetamine, and other paraphernalia relating to the possession and

manufacture of methamphetamine. Thus, the list of items to be searched for and

seized is limited to items related to violations of R.C. 2925.11, 2925.04, and

2925.041, specifically possession and production of methamphetamine. As such,

the search warrant is sufficiently particular. See Gonzales at ¶ 33-34; Bangera,

2016-Ohio-4596, at ¶ 51.

       {¶34} In his third assignment of error, Craw argues that the trial court erred

by denying his motions to suppress statements he made to police before he received

Miranda warnings. In particular, Craw contends that the trial court incorrectly

concluded that his pre-Miranda statements were admissible under the public-safety

exception to the Miranda rule and that, as a result, the trial court erred in denying

his motions to suppress the statements.

       {¶35} “‘The Fifth Amendment to the U.S. Constitution provides a privilege

against self-incrimination.’” State v. Pickens, 3d Dist. Marion No. 9-16-35, 2017-

Ohio-1231, ¶ 10, quoting State v. Edmond, 10th Dist. Franklin No. 15AP-574, 2016-

Ohio-1034, ¶ 11. “‘To protect this right, the United States Supreme Court has held

that “the prosecution may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the privilege against self-


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incrimination.”’” Id., quoting Edmond at ¶ 11, quoting Miranda v. Arizona, 384

U.S. 436, 444 (1966). “What are now commonly known as Miranda warnings are

intended to protect a suspect from the coercive pressure present during a custodial

interrogation.” Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, ¶ 9, citing

Miranda at 469.     “A custodial interrogation is ‘questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.’” Id., quoting Miranda at

444.

       {¶36} The trial court denied Craw’s motions to suppress evidence after

concluding that, although Craw was in custody, the public-safety exception to the

Miranda rule obviated the requirement that law enforcement officers provide Craw

with Miranda warnings prior to initiating questioning. The trial court summarized

the events surrounding Craw’s statements, in relevant part, as follows:

       When [Detectives Doug Timmerman (“Timmerman”) and Lance

       Crum] approached [Craw’s travel trailer], they observed that the door

       was open. They identified themselves as officers of the Mercer

       County Sheriff’s Department and ordered the individuals inside the

       trailer to vacate it. When two individuals came forth, the officers

       inquired if anyone else was left in the trailer because of their concern

       for their safety and anyone else who may have been in the trailer.


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       [Craw] advised them that two cooks were in process in the trailer.

       Detective Timmerman asked [Craw] if he needed to burp the

       operation, and [Craw] responded that that was necessary.

       Timmerman then notified the fire department.            At no time did

       Detective Timmerman Mirandize the defendant, his focus being on

       the danger of the situation and his desire to protect the officers as well

       as [Craw].

       [Detective   Chad     Fortkamp     (“Fortkamp”)]     testified   that   he

       accompanied Detective Timmerman to the scene. * * * [Craw]

       advised Detective Fortkamp that an active cook was in process in

       response to Fortkamp stating he was going into the trailer. * * *

       [Detective Fortkamp] did not hear Timmerman advise [Craw] of his

       Miranda warnings.

(Doc. No. 87). Competent, credible evidence supports the trial court’s factual

findings regarding the events surrounding Craw’s statements.              See State v.

Thompson, 7th Dist. Jefferson Nos. 98 JE 28 and 98 JE 29, 2001 WL 69197, *5-6

(Jan. 24, 2001).

       {¶37} At the suppression hearing, Timmerman testified that he ordered Craw

out of the trailer and that he posed questions to Craw. (Aug. 28, 2015 Tr. at 24).

Timmerman asked “if there was anyone else in the trailer” to which Craw responded


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that “there was not.” (Id.). Timmerman then testified that he asked Craw whether

there was “anyone else or anybody, or anything in the trailer that can hurt us.” (Id.).

According to Timmerman, Craw then informed him that two active cooks were in

process, and he later answered that the cooks needed to be “burped.”3 (Id. at 24-

25). Timmerman testified that he did not read Craw Miranda warnings. (Id.).

         {¶38} When asked why he questioned Craw without advising him of his

Miranda rights, Timmerman answered:

         [Timmerman]:          Well, first off, I wanted to make sure there was nobody else

                               in the trailer for our safety. And then when he informed us

                               that there was * * * two active cooks going on in there,

                               [through] my training, [I’ve] been told that an active cook

                               is very volatile and explosive. I certainly didn’t want

                               myself or Fortkamp, or even them, to get hurt, if that thing

                               went off, so he was very forward with the amount of time

                               that we had before that thing would, * * * because I

                               specifically asked him if he needed to burp that lab, or to

                               burp the bottle, and he said yes, and said two minutes. So

                               that’s when I yelled for Barry Niekamp, one of the Task




3
 “Burping” refers to the act of releasing pressurized gas that forms in a closed container during the process
of manufacturing methamphetamine.

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Case No. 10-17-09


                         Force officers, to come over and immediately got the fire

                         department staged up on that.

(Id. at 25). On cross-examination, Timmerman reiterated that Craw informed him

that there were two active cooks after Timmerman asked whether there was “anyone

or anything in the trailer that’s going to hurt us.”       (Id. at 28).   On redirect

examination, Timmerman stressed that he was “concerned about the safety of that

lab.” (Id. at 32). Timmerman testified that he felt that “[t]here is a safety issue for

myself * * * and everybody else who is out there yet. * * * I don’t know if there is

another person in there, I don’t know if there are weapons in there, I don’t know if

the lab is going to blow up.” (Id.).

       {¶39} The State “concedes that Craw was in custody at the time of his

statements, that his statements were made in response to law enforcement

questioning, and that he was not read Miranda warnings prior to making several of

his statements.” (Appellee’s Brief at 10). Therefore, this court assumes without

deciding that Craw made the statements at issue in the context of a custodial

interrogation and without the benefit of Miranda warnings. As such, we turn to

whether Craw’s statements are admissible notwithstanding the absence of Miranda

warnings.

       {¶40} In denying Craw’s motions to suppress his statements, the trial court

concluded that although Craw’s incriminating statements were made in response to


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Case No. 10-17-09


“certain questions posed to him by law enforcement officers prior to * * * being

advised of his constitutional rights” as required under Miranda, the officers’

questions were asked with “regard to and for the purpose of securing the personal

safety of the law enforcement officers as well as [Craw].” (Doc. No. 87).

       {¶41} In New York v. Quarles, 467 U.S. 649 (1984), the United States

Supreme Court announced an exception to the rule established in Miranda known

as the public-safety exception. Under the public-safety exception, “when officers

ask ‘questions necessary to secure their own safety or the safety of the public’ as

opposed to ‘questions designed solely to elicit testimonial evidence from a suspect,’

they do not need to provide the warnings required by Miranda.” State v. Maxwell,

139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 113, quoting Quarles at 659. The public-

safety exception is intended to avoid placing law enforcement officers in the

       untenable position of having to consider, often in a matter of seconds,

       whether it best serves society for them to ask the necessary questions

       without the Miranda warnings and render whatever probative

       evidence they uncover inadmissible, or for them to give the warnings

       in order to preserve the admissibility of evidence they might uncover

       but possibly damage or destroy their ability to obtain that evidence

       and neutralize the volatile situation confronting them.




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Case No. 10-17-09


Quarles at 657-658. It is a “narrow exception” in which the permissible scope of

questioning is “circumscribed by the exigency which justifies it.” Id. at 658.

       {¶42} The public-safety exception is frequently invoked and applied in cases

where a suspect who has not been read Miranda warnings is asked about the

possession or location of a firearm or other weapon which could be used by a

confederate of the suspect or found by a member of the public. See, e.g., id. at 651-

652; Maxwell at ¶110-111. However, the exception has also been applied by Ohio

and federal appellate courts in circumstances in which the exigency that prompted

questioning by law enforcement officers did not arise from a suspicion that a suspect

was in possession or had recently come out of possession of a firearm or other

weapon which could be wielded by someone else. See, e.g., State v. Strozier, 172

Ohio App.3d 780, 2007-Ohio-4575, ¶ 27-28 (2d Dist.) (determining that the public-

safety exception could apply to questions about whether a suspect was in possession

of drug paraphernalia that could prick or otherwise injure police officers); United

States v. Mohammed, 6th Cir. No. 10-4145, 2012 WL 4465626 (Sept. 28, 2012)

(same); State v. Thompson-Shabazz, 2d Dist. Montgomery No. 27155, 2017-Ohio-

7434, ¶ 37 (applying the public-safety exception to questions aimed at determining

the whereabouts and physical condition of a person whose life was reasonably

believed to be in danger); State v. Santiago, 9th Dist. Lorain No. 01CA007798, 2002

WL 388901, *3-4 (Mar. 13, 2002) (noting that the public-safety exception has been


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Case No. 10-17-09


extended to “situations where exigent circumstances may excuse compliance with

Miranda when there is an overriding need to save human life or to rescue persons

whose lives are in danger”). But see State v. Ferrell, 11th Dist. Portage No. 2017-

P-0018, 2017-Ohio-9341, ¶ 45-46 (suggesting that the Supreme Court of Ohio’s

decision in Maxwell limits application of the public-safety exception only to

circumstances where law enforcement officers have reason to believe that a suspect

might have (or recently had) a weapon). In fact, at least one state supreme court has

applied the public-safety exception to circumstances in which a law enforcement

officer entered an apartment, detected a strong smell of ammonia, and asked the

occupant whether there was an active methamphetamine lab in the apartment and

what stage the lab was in. State v. Simmons, 714 N.W.2d 264, 274-275 (Iowa 2006).

       {¶43} Here, law enforcement officers were serving a search warrant at the

site of a suspected methamphetamine lab.           The operation of a clandestine

methamphetamine lab presents an exigent circumstance with a high risk of injury to

the lab’s operators, law enforcement officers, and the public at large. See R.C.

2933.33(A) (“[T]he risk of explosion or fire from the illegal manufacture of

methamphetamine causing injury to the public constitutes exigent circumstances

and reasonable grounds to believe that there is an immediate need to protect the

lives, or property, of the officer and other individuals in the vicinity of the illegal

manufacture.”). While officers suspected that Craw was cooking methamphetamine


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Case No. 10-17-09


that evening, they had no way of knowing whether they would encounter a

completed cook or whether they would encounter a cook in which volatile chemical

reactions were still actively taking place. As such, it was necessary for law

enforcement officers to establish the status of the lab as quickly as possible so as to

secure their safety and the safety of the public, including Craw, from the threat of a

potentially unstable and hazardous methamphetamine lab. See United States v.

Hodge, 714 F.3d 380, 386-387 (6th Cir.2013) (noting that the public-safety

exception can be applied in situations where law enforcement officers ask about

bombs, in part, because “[b]ombs are potentially unstable and may cause damage if

ignored or improperly handled by police”). Although Timmerman phrased his

questions broadly, this does not defeat application of the public-safety exception

because his questioning was prompted by a reasonable belief that officer and public

safety was at risk. See, e.g., id. at 387 (noting that Hodge’s response to a question

about whether there was “anything in the house that could get anyone there hurt”

was admissible under the public-safety exception); United States v. Williams, 181

F.3d 945, 953-954 (8th Cir.1999) (noting that Williams’s response to a question

phrased “is there anything we need to be aware of?” was admissible under the

public-safety exception). Accordingly, Craw’s statements are admissible because

the questions which prompted Craw’s statements were necessary to secure the safety




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of law enforcement officers and the public from the potentially dangerous

conditions created by an active methamphetamine lab. See Simmons at 274-275.

         {¶44} Therefore, we overrule Craw’s first, second, and third assignments of

error.

         {¶45} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




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