[Cite as State v. Preston, 2012-Ohio-6176.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              CLERMONT COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2012-05-036

                                                     :          OPINION
    - vs -                                                       12/28/2012
                                                     :

THOMAS C. PRESTON II,                                :

        Defendant-Appellant.                         :



             CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                               Case No. 2012CRB0631



Donald W. White, Clermont County Prosecuting Attorney, David H. Hoffmann, 123 North
Third Street, Batavia, Ohio 45103, for plaintiff-appellee

R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third
Street, Batavia, Ohio 45103, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Thomas Preston, appeals from his conviction in the

Clermont County Municipal Court for possession of drug paraphernalia. For the reasons

stated below, we affirm the decision of the municipal court.

        {¶ 2} On January 28, 2012, Officer Robert Hirsch of the Miami Township Police

Department was dispatched to Orchard Lake Mobile Home Park in Clermont County, Ohio, to
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respond to complaints that appellant's dog was running loose throughout the park and

defecating in neighbors' yards. Upon arrival, Officer Hirsch knocked on appellant's door, at

which time appellant's 13-year-old son, Mason, answered. Officer Hirsch asked Mason

whether his parents were home, and Mason responded affirmatively, nodding toward the

back. Officer Hirsch then asked Mason if he could step inside, to which Mason responded, "I

guess." When Officer Hirsch entered the home, he noted the odor of freshly burnt

marijuana. At that point, appellant emerged from a back room and immediately asked Officer

Hirsch to leave. Both men then stepped outside to speak privately.

      {¶ 3} Once outside, Officer Hirsch questioned appellant about the smell of marijuana

and told appellant that he could return with a search warrant for the residence to search the

home for drugs. Appellant then admitted to smoking marijuana inside the home and turned

over the drugs, along with a pipe and some rolling papers.

      {¶ 4} Appellant was subsequently charged with possession of less than 100 grams of

marijuana in violation of R.C. 2925.11(A)(C)(3)(a), a minor misdemeanor, and illegal use or

possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the

fourth degree. Prior to trial, appellant moved to suppress the evidence based upon an illegal

search. Following a suppression hearing, the municipal court denied appellant's motion.

Thereafter, appellant pled no contest to possession of drug paraphernalia and the state

dismissed the possession of marijuana charge. The court sentenced appellant to ten days in

the Clermont County jail with ten days suspended and one year of probation.

      {¶ 5} Appellant timely appeals, raising two assignments of error for review.

      {¶ 6} Assignment of Error No. 1:

      {¶ 7} THE MUNICIPAL COURT ERRED IN FINDING THAT APPELLANT'S

TEENAGE SON HAD AUTHORITY TO CONSENT TO OFFICER HIRSCH'S ENTRY INTO

THE RESIDENCE.
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       {¶ 8} In his first assignment of error, appellant claims that the municipal court erred in

finding that appellant's 13-year-old son, Mason, had the authority to grant police entry into

the residence. However, appellant's written motion to suppress was generic and did not

specifically raise this issue, nor did appellant's attorney raise it during the suppression

hearing. Instead, trial counsel only raised the following two arguments: (1) that Officer

Hirsch did not have probable cause to enter appellant's home, and (2) that Mason's consent

to enter the residence was not voluntary.

       {¶ 9} The Supreme Court of Ohio has held that an accused who seeks the

suppression of evidence obtained during a warrantless search or seizure must "raise the

grounds upon which the validity of the search or seizure is challenged in such a manner as to

give the prosecutor notice of the basis for the challenge." Xenia v. Wallace, 37 Ohio St.3d

216 (1988), paragraph one of the syllabus. See also State v. Mixner, 12th Dist. No. CA2001-

07-074, 2002 WL 83742, * 3 (Jan. 22, 2002) ("if a motion is not filed raising a particular

suppression issue, that issue is waived").

       {¶ 10} Because appellant did not raise the issue of his son's authority to consent

below, we decline to address it for the first time on appeal.

       {¶ 11} Appellant's first assignment of error is overruled.

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE MUNICIPAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS AS THE CONSENT TO ENTER ACQUIRED FROM APPELLANT'S TEENAGE

SON WAS NOT VOLUNTARY.

       {¶ 14} Appellant next argues that the municipal court erred when it overruled his

motion to suppress because his son did not voluntarily give consent for Officer Hirsch to

enter the home.

       {¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed question
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of law and fact. State v. Jimenez, 12th Dist. No. CA2011-09-103, 2012-Ohio-3318, ¶ 8.

When considering a motion to suppress, the trial court, as the trier of fact, is in the best

position to weigh the evidence in order to resolve factual questions and evaluate witness

credibility. Id. In turn, the appellate court must accept the trial court's findings of fact so long

as they are supported by competent, credible evidence. Id., citing State v. Lange, 12th Dist.

No. CA2007-09-232, 2008-Ohio-3595, ¶ 4. After accepting the trial court's factual findings as

true, the appellate court must then determine, as a matter of law, and without deferring to the

trial court's conclusions, whether the trial court applied the appropriate legal standard.

Jimenez at ¶ 8, citing State v. Forbes, 12th Dist. No. CA2007-01-001, 2007-Ohio-6412, ¶ 29.

       {¶ 16} Here, it is undisputed that Officer Hirsch did not have a warrant authorizing him

to enter appellant's home. Warrantless home entries are presumptively unreasonable. State

v. Gunn, 12th Dist. No. CA2003-10-035, 2004-Ohio-6665, ¶ 19, citing State v. Nields, 93

Ohio St.3d 6, 15 (2001). The burden is on the state to overcome the presumption by

demonstrating that the entry fell within one of the well-recognized exceptions to the warrant

requirement. See State v. Kessler, 53 Ohio St.2d 204, 207 (1978).

       {¶ 17} One of the established exceptions to the warrant requirement is when an

officer's entry into a home is authorized by the voluntary consent of the occupant. Gunn,

2004-Ohio-6665 at ¶ 20, citing Illinois v. Rodriguez, 497 U.S. 177, 180, 110 S.Ct. 2793

(1990). The issue of whether consent was voluntarily given is an issue of fact to be

determined based on the totality of circumstances. Gunn at ¶ 20, citing Schneckloth v.

Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041 (1973). The state has the burden of proving

that consent was freely and voluntarily given. Gunn at ¶ 20, citing Bumper v. North Carolina,

391 U.S. 543, 548, 88 S.Ct. 1788 (1968).

       {¶ 18} In this case, the municipal court found that Officer Hirsch's entry into appellant's

home was "consensual and therefore lawful." The court explained that Officer Hirsch asked
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permission from Mason, who identified himself as a resident of the home. The court noted

that Mason himself testified that he told Officer Hirsch "I guess" when the officer asked to

come in. The court found that "[a]ny reasonable officer would interpret that response as an

assent to the request to enter." We must now determine whether there is competent,

credible evidence in the record supporting the municipal court's factual finding of consent,

based on the totality of the circumstances.

       {¶ 19} Initially, we find it important to note that that this case merely involves consent

to enter the home, and not consent to search the home. During the suppression hearing,

Officer Hirsch clearly testified that he did not intend to search appellant's house for drugs, but

that he simply wanted to speak to appellant regarding his failure to restrain his dog.

Appellant's son, Mason, even testified that Officer Hirsch did not appear to be "looking

around" for anything while he was inside.

       {¶ 20} The distinction between consent to search and consent to enter a home is not

always carefully made. State v. Lawson, 12th Dist. No. CA2009-08-020, 2010-Ohio-1103, ¶

9, citing Gunn, 2004-Ohio-6665 at ¶ 22. See also State v. Rammel, 12th Dist. No. CA99-10-

023, 2000 WL 1336493 (Sept. 18, 2000); State v. Simmons, 4th Dist. No. 05CA4, 2006-Ohio-

953, ¶ 28. "When the intent of the officer is not to search, but merely to enter and ask

questions, courts have applied a lower standard for proving voluntary consent." Gunn at ¶

22, citing State v. Chapman, 97 Ohio App.3d 687, 689-690 (1st Dist.1994); Akron v. Harris,

93 Ohio App.3d 378, 382 (9th Dist.1994).

       {¶ 21} In this case, we find that Officer Hirsch's entry into appellant's home was valid

based upon Mason's consent.

       {¶ 22} During the suppression hearing, Officer Hirsch testified that when Mason

answered the door, he asked Mason whether he lived there and if his parents were home.

Mason responded affirmatively and indicated that his parents were in the back. Officer
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Hirsch then asked Mason if he could step inside, to which Mason responded, "I guess."

Officer Hirsch also testified that he did not, in any way, physically pressure Mason into

allowing him inside the house.

       {¶ 23} However, Mason offered conflicting testimony as to his interaction with Officer

Hirsch prior to allowing the officer into the home. Mason testified that when Officer Hirsch

asked to come inside, he responded, "I guess," but what he really meant was "I don't know."

Mason also testified that he was about to say "let me go get my dad," but before he could do

so, Officer Hirsch came in the door, causing Mason to step aside in order to avoid making

physical contact with the officer.

       {¶ 24} When there is a conflict in the testimony of witnesses, as here, it is for the trier

of fact to determine the weight and credibility to be given such evidence. See State v.

DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. "Such a determination

must be made, not merely from the substance of the testimony, but from all facts and

circumstances surrounding the testimony, particularly the manner and demeanor of the

witnesses, which only the trier of fact can observe." State v. Pamer, 70 Ohio App.3d 540,

543 (9th Dist.1990). See also Jimenez, 2012-Ohio-3318, at ¶ 8; Rammel, 2000 WL 1336493

at * 2. We find that there is competent, credible evidence to support the municipal court's

finding that, based on the totality of the circumstances, Mason voluntarily consented to

Officer Hirsch's entry into the home. While Mason testified that he was hesitant or unsure of

whether to allow Officer Hirsch inside, it was within the court's power to believe the officer's

take on the interaction, and the record supports the court's decision.

       {¶ 25} Because Officer Hirsch had Mason's consent, he could lawfully enter the

home. Once legally inside, Officer Hirsch was "not required to remain blind to the obvious,"

or ignore the characteristic odor of marijuana. Rammel at * 2, quoting Pamer at 543.

Appellant does not claim that Officer Hirsch was not qualified to detect the smell of
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marijuana, nor does he claim that the smell was insufficient to create probable cause to

justify a search.1 See State v. Moore, 90 Ohio St.3d 47, 51 (2000) ("a law enforcement

officer, who is trained and experienced in the detection of marijuana, should not be prohibited

from relying on his or her sense of smell to justify probable cause to conduct a search for

marijuana"). As a result, we find no violation of appellant's constitutional rights.

         {¶ 26} Accordingly, the municipal court did not err in denying appellant's motion to

suppress.

         {¶ 27} Appellant's second assignment of error is overruled.

         {¶ 28} Judgment affirmed.


         PIPER and BRESSLER, JJ., concur.



       Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.




1. During the suppression hearing, Officer Hirsch testified regarding his extensive training and experience in identifying and
detecting the smell of marijuana.

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