[Cite as State v. Link, 2016-Ohio-4597.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2015-L-078
        - vs -                                      :

RAYMOND LINK, III,                                  :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000806.

Judgment: Reversed and remanded.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Raymond Link, III, appeals from the June 5, 2015 judgment of

the Lake County Court of Common Pleas, sentencing him for illegal assembly or

possession of chemicals for the manufacture of drugs following a no contest plea. On

appeal, appellant asserts the trial court erred in denying his motion to suppress. For the

reasons that follow, we reverse and remand.
        {¶2}    On November 7, 2014, appellant was indicted by the Lake County Grand

Jury on one count of illegal assembly or possession of chemicals for the manufacture of

drugs, a felony of the second degree, in violation of R.C. 2925.041, with a forfeiture

specification pursuant to R.C. 2941.1417 and 2981.04. Appellant waived his right to be

present at his arraignment and the trial court entered a not guilty plea on his behalf.

        {¶3}    On January 20, 2015, appellant, by and through court appointed counsel,

filed a motion to suppress any and all evidence obtained by Lake County Narcotics

Agency (“LCNA”) pursuant to an unlawful search and seizure of his home on June 17,

2014. Appellant asserted that no specific and articulable facts existed to justify the

warrantless entry into his residence. As such, appellant stressed that his due process

rights and rights against unreasonable search and seizure were violated.1 Appellee, the

state of Ohio, filed a response on February 20, 2015.

        {¶4}    A hearing on appellant’s motion to suppress was held on February 23,

2015. Two witnesses with LCNA testified for the state: Special Agents 76 and 88.

Collectively, they established the following:

        {¶5}    An unidentified citizen informant called LCNA around noon on June 17,

2014.2 She was a resident at Lakeway Woods, 5888 Buckeye Lane, Mentor-on-the-

Lake, Ohio. The apartment building was a two story structure consisting of one and two

bedroom units and was part of a large complex of buildings. The caller complained that

toxic fumes or chemical smells had come from appellant’s apartment (Apartment 4).

LCNA agents were not sure when the odor was last detected but believed it was at the



1. Appellant filed a supplemental motion two days later.

2. The caller’s name was not disclosed, however, her phone number was provided.


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time of the noon-hour call. The caller later advised the agents that appellant had left his

apartment but that others were inside.

       {¶6}    LCNA agents confirmed that appellant was the renter of the apartment.

They looked him up in the National Precursor Log Exchange (“NPLEx”) which showed

that appellant had purchased pseudoephedrine nine times over the past three and a

half months including a purchase that day from a local pharmacy.3 According to the

agents, such purchases indicate that the individual is cooking methamphetamine or

buying the pseudoephedrine to give to someone else to cook. The agents also testified

regarding the volatile nature of methamphetamine labs as well as the one-pot method of

cooking methamphetamine.

       {¶7}    LCNA agents decided to do a “knock and talk” at appellant’s apartment to

dispel their suspicions that his residence was being used to manufacture

methamphetamine. Special Agent 88 testified that a “knock and talk” investigation is

used when authorities do not have enough probable cause to obtain a search warrant.

Agent 76 testified that regardless of whether anybody opened the door or not, they still

intended to go inside the apartment due to “exigent circumstances.” Prior to arriving at

the apartment, LCNA agents made arrangements for other agents to be present, made

contingency plans, and contacted Mentor-on-the-Lake police department to coordinate

their visit and obtain a uniformed officer.

       {¶8}    Although the caller placed the call around noon, agents did not go to

appellant’s apartment until 4:30 p.m. Special agents 76 and 88 along with a uniformed

police officer knocked on appellant’s door. Other agents set up surveillance in the area.

3. NPLEx is a real-time electronic logging system used by pharmacies and law enforcement to track sales
of over-the-counter cold and allergy medications containing precursors to the illegal drug,
methamphetamine.


                                                  3
Special agent 76 testified that when they arrived, they did not smell any chemical odor.

The agents knocked on the apartment door. They heard whispering and shuffling inside

but no one answered. The agents continued to knock.

        {¶9}    About five minutes later, Robert Kline opened the door. Another man,

Anthony Sanguedolce, was seen coming out of the bathroom at the far end of the

apartment. Both men appeared nervous. Neither Mr. Kline nor Mr. Sanguedolce was a

tenant. They confirmed that appellant had left earlier and had not yet returned. The

police officer checked their identities which revealed that both men had outstanding

warrants. Mr. Kline and Mr. Sanguedolce were removed from the apartment. A NPLEx

check showed that Mr. Sanguedolce recently purchased pseudoephedrine.

        {¶10} The agents believed there was a strong possibility that methamphetamine

was being or had been manufactured inside appellant’s home. Special agents 76 and

88 decided to conduct a protective sweep of the apartment. Both agents testified that

the purpose of the sweep was to check for other persons or weapons in the apartment

or an active one-pot cook. Because the apartment was small and sparsely furnished,

the sweep was rather quick. The sweep revealed that no one else was in the apartment

and there was no obvious evidence of methamphetamine manufacturing. However, the

agents noticed a white powdery substance on a nightstand along with a razor.4 The

agents also saw some black filled garbage bags.                      One bag contained opened

pseudoephedrine packages. The agents secured the apartment and left.

        {¶11} About an hour later, a detailed second search of appellant’s apartment

took place. This search was for the presence of chemicals and equipment for the

production of methamphetamine.             However, no methamphetamine was found.        The

4. The white powder was later tested. It was not a controlled substance.


                                                   4
agents and the officer waited about 90 minutes for appellant to return to his apartment

but he never did. The agents also questioned Mr. Sanguedolce who indicated he had

bought pseudoephedrine from appellant and that the two of them were planning to give

the pseudoephedrine to someone else to make methamphetamine. Thereafter, the

agents secured the apartment and left.

      {¶12} Following the hearing, the trial court denied appellant’s motion to

suppress.

      {¶13} On April 17, 2015, appellant withdrew his former not guilty plea and

entered an oral and written plea of no contest to a lesser-included offense which

reduced the charge to a third-degree felony under R.C. 2925.041.        The trial court

accepted his plea four days later.

      {¶14} On June 5, 2015, the trial court sentenced appellant to three years of

community control, with various sanctions and conditions.     Appellant filed a timely

appeal and raises the following assignment of error:

      {¶15} “THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT-

APPELLANT’S MOTION TO SUPPRESS THE SEARCH OF HIS APARTMENT IN

VIOLATION OF HIS RIGHTS TO DUE PROCESS AND TO BE FREE FROM

UNREASONABLE SEARCH AND SEIZURE PURSUANT TO THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 AND 14 OF THE OHIO CONSTITUTION.”

      {¶16} In his sole assignment of error, appellant argues the trial court erred in

denying his motion to suppress. He presents a single issue:




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         {¶17} “Neither probable cause or exigent circumstances exist to justify a

warrantless search where narcotics agents arrive at an apartment to search for a

potential methamphetamine lab four and a half hours after receiving an anonymous call

regarding a chemical smell or toxic odor coming from the apartment of an individual

whom agents learn has recently purchased pseudoephedrine, yet smell no chemical

odor upon arriving and observe no other criminal activity.”

         {¶18} Unlike a plea of guilty, a plea of no contest does not preclude a defendant

from asserting on appeal that the trial court erred in ruling on a motion to suppress.

State v. Delarosa, 11th Dist. Portage No. 2003-P-0129, 2005-Ohio-3399, ¶25; Crim.R.

12(I).

         {¶19} “‘“Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8, * * *, (* * *).

During a hearing on a motion to suppress, the trial judge acts as the trier of fact and, as

such, is in the best position to resolve factual questions and assess the credibility of

witnesses. State v. Mills, 62 Ohio St.3d 357, * * *, (* * *) (1992). The appellate court

must accept the trial court’s factual findings, provided they are supported by competent,

credible evidence. Burnside at ¶8. Thereafter, the appellate court must determine,

without deference to the trial court, whether the applicable legal standard has been met.

Bainbridge v. Kaseda, 11th Dist. No. 2007-G-2797, 2008-Ohio-2136, ¶20. Thus, we

review the trial court’s application of the law to the facts de novo. State v. McNamara,

124 Ohio App.3d 706, 710, * * *, (* * *) (4th Dist.1997).’ (Parallel citations omitted.)

State v. Haynes, 11th Dist. Ashtabula No. 2012-A-0032, 2013-Ohio-2401, ¶36.” State

v. Adams, 11th Dist. Ashtabula No. 2015-A-0003, 2015-Ohio-5072, ¶7.




                                             6
       {¶20} “‘The Fourth Amendment safeguards: “(t)he 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.”’ State v. Andrews, 177 Ohio App.3d

593, 2008-Ohio-3993, at ¶19, * * * quoting the Fourth Amendment to the United States

Constitution.   (Emphasis added by Andrews Court.)”        State v. Sutcliffe, 11th Dist.

Portage No. 2008-P-0047, 2008-Ohio-6782, ¶16.         See Andrews at 598 (“The slow

erosion of its protection for expediency’s sake or the attitude that a warrant is just a

‘technicality’ should be troubling to all citizens but especially to the judicial branch,

which is tasked with standing as the bulwark for our constitutional rights. The founders

of our democracy courageously fought a tyrant who ordered warrantless searches of

their homes and shops, and they created our cherished Bill of Rights in order to

‘transform the aspiration for freedom and arbitrary government intrusion into the

guarantees of fundamental law.’ Samuel Dash, The Intruders (2004), 3.”)

       {¶21} “‘“It is a ‘basic principle of Fourth Amendment law’ that searches and

seizures inside a home without a warrant are presumptively unreasonable.” Payton v.

New York (1980), 445 U.S. 573, 586 * * * (***) (citation omitted). The United States

Supreme Court has made clear that “in terms that apply equally to seizures of property

and seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to

the house.”     Id. at 590.   “Absent exigent circumstances, that threshold may not

reasonably be crossed without a warrant.” Id.; see, also, State v. Howard (1991), 75

Ohio App.3d 760, 768 * * * (***); State v. Martin, 11th Dist. No. 2002-P-0072, 2004-




                                           7
Ohio-3027, at ¶17.’ State v. Pape, 11th Dist. No. 2004-A-0044, 2005-Ohio-4657, at

¶16. (Parallel citations omitted.)” State v. Frye, 11th Dist. Ashtabula No. 2007-A-0023,

2007-Ohio-6941, ¶24.5

        {¶22} “The exigent circumstances doctrine requires that, in the absence of a

search warrant, probable cause plus exigent circumstances are required to effectuate a

warrantless entry of a home. Kirk v. Louisiana (2002), 536 U.S. 635, 637 * * *. Thus,

even if the State establishes that probable cause to search the premises existed, this

alone is insufficient, absent exigent circumstances, to overcome the strong presumption

that a warrantless search or seizure is unconstitutional under the Fourth Amendment.

Coolidge v. New Hampshire (1971), 403 U.S. 443, 468 * * * (‘No amount of probable

cause can justify a warrantless search or seizure absent “exigent circumstances.”’)”

Pape, supra, at ¶19.

        {¶23} In this case, the trial court, in denying appellant’s motion to suppress,

cited to R.C. 2933.33(A) in its March 10, 2015 judgment entry. The General Assembly

enacted R.C. 2933.33, effective May 17, 2006, codifying the “emergency aid doctrine,”

which is the exigent circumstances exception to the search warrant requirement for

clandestine meth labs. R.C. 2933.33(A) provides:




5. Although we rely on the law in Pape, we note that the facts in that case involved a much more
egregious situation than those in the instant case. In Pape, which was decided prior to the enactment of
R.C. 2933.33, this court found exigent circumstances justifying a warrantless search of the defendant’s
home (police received a tip from an identified citizen informant regarding an active methamphetamine lab;
a deputy approached the home on foot and saw a basement window that contained a small running fan;
the deputy smelled an odor consistent with the production of methamphetamine; the deputy looked into
the window and saw a hand covered with a blue glove holding a beaker or a glass jar and mixing a red
substance that he believed to be red phosphorous, which is a substance used in the manufacture of
methamphetamine; the deputy radioed other patrol units and other officers arrived; upon knocking on the
door, an unidentified male opened it, then attempted to close it when he saw the deputies; and the male
scuffled with police.)



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       {¶24} “If a law enforcement officer has probable cause to believe that particular

premises are used for the illegal manufacture of methamphetamine, for the purpose of

conducting a search of the premises without a warrant, the 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.”

       {¶25} The trial court also stated the following in its entry:

       {¶26} “The chemical odor or toxic fumes along with the volatile nature and risk of

fire or explosion associated with a meth lab along with evidence that Link had been

purchasing large amounts of medicine containing pseudoephedrine (including a

purchase that day) provided probable cause and exigent circumstances to justify the

entrance and search of Link’s apartment.”

       {¶27} Based on the facts presented in the record before this court, we find that

[removed] no “exigent circumstances” and “immediate need” existed under R.C.

2933.33(A), and more importantly no exigent circumstances existed under the basic

principles of Fourth Amendment law under the United States Constitution, to justify the

warrantless search of appellant’s home.

       {¶28} “‘There is “no absolute test for the presence of exigent circumstances,”’

therefore, courts are required to examine the unique facts of each controversy, United

States v. Wicks (C.A.10, 1993), 995 F.2d 964, 970 (citations omitted). With respect to

clandestine methamphetamine laboratories, other courts have determined that the

‘basic aspects of the “exigent circumstances” exception are that (1) law enforcement




                                              9
officers must have reasonable grounds to believe that 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 associate an emergency with the

area or place to be searched.’ United States v. Rhiger (C.A.10, 2003), 315 F.3d 1283,

1288; Wicks, 995 F.2d at 970 (citation omitted); Foutz v. West Valley City (C.D.Utah

2004), 345 F. Supp. 2d 1272, 1275; Lopkoff v. Slater (D. Colo.1994), 898 F. Supp. 767,

775.

       {¶29} “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[.]” Pape, supra, at ¶23-24.

       {¶30} In this case, there were no exigent circumstances as there was no

“immediate need” or emergency at hand, i.e., the agents waited four and a half hours

after receiving the allegations from the caller before conducting the search (during

which time they had the opportunity but never intended to obtain a search warrant).

See R.C. 2933.33(A) (requiring “exigent circumstances” and “immediate need” in order

to search without a warrant); Pape, supra, at ¶23. Clearly, waiting four and a half hours

to implement a search does not support the state’s argument related to the “immediate

need” envisioned under R.C. 2933.33(A). It simply is not an emergency four and a half

hours later. More importantly, it is a basic principle under the Fourth Amendment that a




                                             10
warrant is required to search and seize articles inside a home unless there are exigent

circumstances. As stated, no exigent circumstances existed in this case.

      {¶31} Even when the agents arrived at appellant’s apartment, they did not smell

any chemical or toxic odor and did not observe any criminal activity. Although Mr. Kline

and Mr. Sanguedolce appeared nervous in dealing with authorities, they did not attempt

to flee or block access to appellant’s apartment. When the apartment door opened, the

agents observed nothing in plain view to indicate the presence of a methamphetamine

lab. Although it was known that appellant had purchased pseudoephedrine, the agents

acknowledged that individuals do purchase it for others to use in other locations. In

fact, Mr. Sanguedolce told authorities that very same thing, i.e., that appellant had

purchased pseudoephedrine for someone else to make elsewhere.

      {¶32} Based on the facts presented, the warrantless search of appellant’s home

appears to be primarily motivated for the purpose of seizing evidence of criminal

activity. Thus, because there were no exigent circumstances, the search of appellant’s

home, without a search warrant, was unlawful.

      {¶33} For the foregoing reasons, appellant’s sole assignment of error is well-

taken. The judgment of the Lake County Court of Common Pleas is reversed and the

matter is remanded for further proceedings consistent with this opinion.



THOMAS R. WRIGHT, J.,

CYNTHIA WESTCOTT RICE, P.J., concurs with a Concurring Opinion.


                              ______________________




                                           11
CYNTHIA WESTCOTT RICE, P.J., concurs with a Concurring Opinion.

       {¶34} I concur with the writing judge’s disposition and analysis.         I write

separately to emphasize that the lack of exigent circumstances in this matter does not

imply the officers lacked probable cause to obtain a search warrant and proceed with a

constitutionally permissible search of the premises.

       {¶35} Clandestine methamphetamine laboratories create such a danger to life

and limb that, as a matter of law, probable cause to believe such a laboratory exists is

an emergency justifying immediate action. As the writing judge notes, this policy is

codified in R.C. 2933.33(A). In this case, however, the facts were insufficient to

establish the premises was being used for the illegal manufacture of methamphetamine

at the time of the search. Therefore, there were no exigent circumstances. See State v.

Zerucha, 11th Dist. Ashtabula No. 2015-A-0031, 2016-Ohio-1300, ¶21 (noting R.C.

2933.33(A) did not apply because, even though they observed equipment for

manufacture of methamphetamine after entering, “there was nothing, e.g., the pungent

odor of methamphetamine manufacture, to suggest the lab was active at the time the

officers lawfully entered the premises.”)

       {¶36} Accordingly, even though there was no emergency that would trigger R.C.

2933.33(A) and there were no circumstances to justify the search under the general

exigency exception to the constitutional warrant requirement, there was probable cause

to obtain a search warrant. Because officers proceeded to search appellant’s residence

without a warrant, it was unlawful.

       {¶37} I accordingly concur.




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