[Cite as Stae v. Allen, 2018-Ohio-3240.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

             Plaintiff-Appellee,                :
                                                        CASE NO. 2017-A-0069
    - vs -                                      :

JASON F. ALLEN, a.k.a. ALLEN,                   :
JASON FOSTER,

             Defendant-Appellant.               :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00559.

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).

Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street,
Jefferson, OH 44047 (For Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Jason F. Allen, a.k.a. Allen, Jason Foster, appeals from the September 1,

2017 judgment of the Ashtabula County Court of Common Pleas, denying his motion to

suppress, following a warrantless search of his motel room, based on an anonymous

tip. For the reasons that follow, we affirm.
      {¶2}   December 9, 2015, Mr. Allen was indicted for one count of Illegal

Manufacture of     Drugs, a felony of       the first degree, in violation of       R.C.

2925.04(A)(C)(3)(b); one count of aggravated possession of drugs, a felony of the first

degree, in violation of R.C. 2925.11(A)(C)(1)(d); one count of illegal assembly or

possession of chemicals for the manufacture of drugs, a felony of the third degree, in

violation of R.C. 2925.041(A); and one count of tampering with evidence, a felony of the

third degree, in violation of R.C. 2921.12(A)(1). December 12, 2016, Mr. Allen was

arraigned and entered a plea of not guilty. April 8, 2016, a motion to suppress was filed

with leave of the trial court.   April 27, 2016, the state filed a motion in opposition.

October 19, 2016, a hearing was held on the motion to suppress, as well as the co-

defendant, Gabrielle Neuroth’s motion to suppress. October 21, 2016, the trial court

issued its decision denying the motion.

      {¶3} Deputy Jay Thomas of the Ashtabula County Sheriff’s Department testified

that on September 28, 2015 he was dispatched to the Ho-Hum Motel on North Ridge

Road in Saybrook Township, Ashtabula County, Ohio, in response to an anonymous

male caller who indicated that there was a strong chemical odor emanating from one of

the end rooms at the motel.       Deputy Thomas and Sergeant James Truckey each

responded to the call driving separate vehicles which they parked next to the motel so

as not to be seen by anyone in the motel. While responding to the call Deputy Thomas

also received a report of a stolen vehicle from a residence on North Ridge West. When

they approached the motel, they observed the reported stolen vehicle parked in front of

Room 10, the end room of the motel. When they approached the front door of Room 10




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they could hear talking inside. Deputy Thomas knocked on the door and a female

responded, “hold on honey, we’re getting dressed.”

   {¶4}        Deputy Thomas testified that while waiting at the door he did not smell any

chemical odor coming from the room. Deputy Thomas did not identify himself, and

knocked several more times before the door was finally opened approximately five

minutes later. While waiting for the door to open Deputy Thomas walked to the rear of

the building to make sure nobody was attempting to get out the back. Deputy Thomas

was not present when the door opened, but returned to the front door when he heard

Deputy Truckey speaking with someone, and positioned himself behind Deputy

Truckey.     Deputy Truckey was speaking with Mr. Allen and a female identified as

Gabrielle Neuroth. The pair were in their underwear. Deputy Thomas testified that both

were fidgeting, and their hands were trembling and speech was fast, like they were

nervous, but that it was not uncommon for people to do this when dealing with police.

      {¶5}     Mr. Allen was advised the deputies were investigating the stolen vehicle

report. Deputy Thomas testified Mr. Allen seemed relieved when told this, and retreated

into the motel room to retrieve a hand-written document alleging to evince the sale of

the vehicle to appellant. Deputy Thomas then entered the motel room continuing the

investigation of the stolen vehicle. Deputy Thomas testified that they were invited into

the room to discuss the stolen vehicle.

      {¶6}     Ms. Neuroth testified that as soon as appellant opened the door, Sergeant

Truckey put his foot in the door so that it could not be closed and just walked in without

asking for permission.




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       {¶7}    Once inside, Deputy Thomas testified he asked for permission to check for

other people in the room and was told to go ahead. While doing so, Deputy Thomas

noticed the faint smell of ammonia in the air which caused him to suspect that there was

a methamphetamine lab in the room. Deputy Thomas testified he could not tell if there

was a lab previously or currently in the room. He did not notice the odor until he was in

the room. Deputy Thomas testified he then asked for, and received, permission to

search various places in the room. Ms. Neuroth testified that she was never asked

permission to search her belongings, and that she did not hear the deputies ask Mr.

Allen for permission. Deputy Thomas found a pair of nitrile gloves, which are commonly

used   in     the   manufacture   of   methamphetamine,     and    eventually   found   the

methamphetamine lab hidden in the box spring. Both Mr. Allen and Ms. Neuroth were

then placed under arrest.

       {¶8}    In denying the motion to suppress, the trial court found the testimony of

Deputy Thomas to be credible and reliable and that Mr. Allen had invited the deputy into

the motel room. Further, the trial court found that Mr. Allen’s actions implied the deputy

had consent to enter the room. The trial court also found the deputy asked for consent

each time he searched an item in the motel room, and that Mr. Allen gave him

permission. The trial court did not find Ms. Neuroth’s testimony to be credible or reliable.

The trial court further stated it 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 trial court.      The trial court found, based on this

opportunity, the testimony of Deputy Thomas to be truthful.




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         {¶9}   November 13, 2017 Mr. Allen entered a no contest plea, preserving his

right to appeal, to an amended count two of the indictment, attempted aggravated

possession of drugs, a felony of the second degree; count three of the indictment, illegal

assembly or possession of chemicals for the manufacture of drugs; and count four,

tampering with evidence.

         {¶10} Mr. Allen timely noticed this appeal, asserting the following for his sole

assignment of error:

         {¶11} “THE TRIAL COURT ERRED BY DENYING THE DEFENDANT-

APPELANT’S MOTION TO SUPPRESS EVIDENCE IN VIOLATION OF HIS DUE

PROCESS RIGHTS AND HIS RIGHT TO BE FREE FROM UNREASONABLE

SEARCH AND SEIZURE UNDER THE FOURTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 14 OF THE

OHIO CONSTITUTION.”

         {¶12} The sole argument raised on appeal is that because all evidence obtained

by the state resulted from the warrantless search, all of the evidence should have been

suppressed.      Because there was competent, credible evidence for the trial court’s

finding that the deputy entered appellant’s motel room with his consent, we do not

agree.

         {¶13} On review of a trial court’s ruling on a motion to suppress, an appellate

court determines whether the trial court’s findings are supported by some competent,

credible evidence.     An appellate court may not disturb a trial court’s decision on a

motion to suppress where some competent, credible evidence supports its decision.

State v. Retherford, 93 Ohio App.3d 586, 592 (1994).         In determining a motion to




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suppress, the trial court serves as the trier of fact and determines the credibility of the

witnesses and the weight of the evidence. An appellate court is required to accept the

trial court’s factual findings as true, and determine, without deference to the trial court,

whether the trial court met the appropriate legal standard. State v. Jackson, 11th Dist.

Ashtabula No. 2003-A-2005, 2004-Ohio-2920, ¶12.

       {¶14} The Fourth Amendment to the United States Constitution and Section 14,

Article 1 of the Ohio Constitution require police to obtain a search warrant based on

probable cause prior to conducting a search, unless the search falls within an exception

to this requirement. Katz v. United States, 389 U.S. 347 (1967); see also State v.

Totten, 10th Dist. Franklin No. 00AP-535, 2001 WL 125153, *2 (Feb. 15, 2001). In this

case, Deputy Thomas testified Mr. Allen gave his consent to the search, and the trial

court specifically found he invited the officers into the motel room, and that his actions

implied that the deputies had consent to enter.

       {¶15} Mr. Allen argues, contrary to the specific findings of the trial court, that he

never consented to the Deputy’s entry into the motel room. We find this argument is not

well taken.

       {¶16} Appellate review of the voluntariness of consent to search is “‘limited to a

determination of whether the trial court’s decision was “clearly erroneous,” and an

appellate court must ‘accept the trial court’s findings of fact and determinations

regarding credibility if they are supported by competent, credible evidence.’ State v.

Samples, 11th Dist. Geauga No. 93-G-1787, 1994 WL 315710, quoting State v.

Hickson, 69 Ohio App.3d 278, 280 (8th Dist.1990).




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       {¶17} In Bainbridge v. Kasada, 11th Dist. Geauga No. 2007-G-2797, 2008-Ohio-

2136, ¶28-36, this court stated:

       {¶18} “An established exception to the rule that entry of a home requires a

warrant or exigent circumstances is where the entry is pursuant to a voluntary consent.

Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, * * *. Police do not need a

warrant, probable cause, or even a reasonable, articulable suspicion to conduct a

search when a suspect voluntarily consents to the search. Id. A search conducted

pursuant to a valid consent is constitutionally permissible. Id. Moreover, a voluntary

consent need not amount to a waiver. Consent can be voluntary without being an

‘intentional relinquishment or abandonment of a known right or privilege.’ Johnson v.

Zerbst (1938), 304 U.S. 458, 464, * * *. Rather, the proper test is whether the totality of

the circumstances demonstrates that the consent was voluntary.                   State v.

McConnell, 5th Dist. No.2002CA00048, 2002-Ohio-5300, at ¶8. The state has the

burden to prove consent was freely and voluntarily given by clear and convincing

evidence. State v. Robinette, 80 Ohio St.3d 234, 243, * * *.            The standard for

measuring the scope of a suspect's consent under the Fourth Amendment is that of

objective reasonableness – what would the typical reasonable person have understood

by the exchange between the officer and the suspect? Florida v. Jimeno (1991), 500

U.S. 248, 251, * * *.

       {¶19} “The First Appellate District addressed the issue of what constitutes

consent for police to enter a home in State v. Robinson (1995), 103 Ohio App.3d 490, *

* *, appeal not allowed, (1995), 74 Ohio St.3d 1418, * * *, reconsideration denied,

(1995), 74 Ohio St.3d 1465, * * *. In that case two police officers knocked on the




                                            7
defendant's door. When he opened the door, the officers smelled marijuana coming

from inside. As soon as the defendant realized they were police officers, he tried to

close the door, but the officers forced their way inside and found marijuana, which

formed the basis for the drug abuse charge subsequently brought against the

defendant. The trial court granted the defendant's motion to suppress and the state

appealed. The appellate court affirmed, holding:

       {¶20} “‘Robinson consented to the officers' initial breach of the threshold of his

apartment. When Robinson opened the door following Officer Sneed's identification of

herself by name only, he did so freely and voluntarily, under neither duress nor

coercion, see Schneckloth, (supra), and not upon an express misrepresentation by the

officers. See State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St.3d 141 (* * *). The

act of opening the door was not rendered involuntary, and thus nonconsensual, by the

fact that Robinson would not have opened the door but for Officer Sneed's failure to

identify herself as a police officer. See State v. Posey (1988), 40 Ohio St.3d 420 (* * *),

paragraph three of the syllabus.       Therefore, the officers did not violate the Fourth

Amendment in attaining their initial vantage point.’

       {¶21} “‘The officers' progress into the apartment was not, however, made in

conformity with the Fourth Amendment consent doctrine. Robinson communicated to

the officers the limited scope of his consent to the initial intrusion when he attempted to

bar the officers' entry into the apartment by closing the door, and the officers exceeded

the scope of Robinson's voluntary consent when they forced their way over the

threshold and into the apartment. (* * *)’ Id. at 495, * * *.




                                               8
       {¶22} “The holding in Robinson, supra, has been followed by numerous other

Ohio appellate districts. In State v. Damron, 5th Dist. No. 06CA-150, 2007-Ohio-5808,

the Fifth Appellate District held:

       {¶23} “‘Whether a search is authorized by warrant or by consent, the scope of

the search is limited by the terms of its authorization. (* * *) Where a suspect voluntarily

opens his door to the police but then closes the door, barring the officers' progress into

his apartment, he has communicated the withdrawal of his consent to the initial

intrusion.’ Id. at ¶22, citing Robinson, supra.

       {¶24} The Ninth Appellate District also followed the holding in Robinson, supra,

in State v. Cooper, 9th Dist. No. 21494, 2003-Ohio-5161. In that case the court held:

       {¶25} “‘(* * *) A person can demonstrate consent to enter either expressly or

impliedly. State v. Schroeder (Oct. 26, 2001), 6th Dist. No. WD-00-076, * * *, 2001 WL

1308002; State v. Asworth (Apr. 11, 1991), 10th Dist. No. 90 AP-916, * * *, 1991 WL

54181.    Courts have found such actions as opening a door and stepping back, or

leading an officer through an open door without expressing an intent that he should not

follow constitute implied consent.       Schroeder, supra (;) Asworth, supra.      Further,

voluntarily opening a door constitutes voluntary consent to step into the threshold of an

apartment. State v. Robinson (supra). Additionally, “there is a recognized difference

between consent granted to the police to enter (an apartment) to conduct an interview

and consent granted to conduct a search.” Schroeder, supra, citing Lakewood v.

Smith (1965), 1 Ohio St.2d 128, * * *, (* * *), paragraph one of the syllabus.” Id. at ¶ 9,

205 N.E.2d 388. (Emphasis added.)




                                             9
      {¶26} “* * * The Supreme Court of Ohio held in [Lakewood, supra]: ‘A person

who admits a police officer to his premises in compliance with the officer's request for

an interview does not thereby (* * *) consent to a search of the premises.’ Id. at

paragraph one of the syllabus.         This court cited Lakewood, supra, in State v.

Townsend (Aug. 27, 1999), 11th Dist. No. 98-L-036, * * *, 1999 WL 689934, in holding:

‘(W)hen a homeowner merely permits police to enter his residence, there is no consent

given for them to search the premises.          Id. at *10.”   (Parallel citations omitted.)

(Emphasis sic.)

      {¶27} Here, we cannot say that the trial court erred in finding Mr. Allen had

voluntarily consented to the deputies entering the motel room to investigate further the

matter of the stolen vehicle. Mr. Allen saw that they were sheriff’s deputies when he

opened the motel room door. Deputy Thomas testified that when appellant was asked

about the stolen truck he appeared relieved and went into the room to retrieve piece of

paper purporting to evince the sale of the truck. The deputy testified Mr. Allen never

objected to his presence in the motel room. Conversely, Ms. Neuroth testified that

neither she nor Mr. Allen consented to the deputy entering the motel room.             She

testified that as soon as Mr. Allen opened the door, Deputy Truckey, “put his foot in the

door and proceeded to come in, follow the door open as it opened, he proceeded to

follow it in.” The trial court found testimony of Deputy Thomas to be truthful, and the

testimony of Ms. Neuroth to be self-serving and unbelievable, and as such, found the

deputy’s entry to be consensual. The trial court further found the deputy’s testimony

that Mr. Allen consented to the deputy inspecting the room credible.




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      {¶28} Based on the trial court’s factual finding, competent, credible evidence

supports its conclusion the warrantless search was consensual.

      {¶29} The assignment of error lacks merit.

      {¶30} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.



THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.

concur.




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