[Cite as State v. Hale, 2017-Ohio-7048.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      28334

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TERRY WADE HALE                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2015 05 1532 (B)

                                 DECISION AND JOURNAL ENTRY

Dated: August 2, 2017



        TEODOSIO, Judge.

        {¶1}     Appellant, Terry Wade Hale, appeals from his convictions in the Summit County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     The National Precursor Log Exchange (“NPLEx”) is an “electronic system for

tracking sales of pseudoephedrine products and ephedrine products on a national basis * * *.”

R.C. 3715.05(A)(6). While monitoring the NPLEx live-time feed, a Brimfield police officer saw

that Ms. Lisa Herczec had just purchased products containing pseudoephedrine from the

Brimfield Walmart. The officer went to the store’s parking lot and watched Ms. Herczec exit the

store and join another man, later identified as R.S., by a vehicle that appeared to be broken down.

Ms. Herczec’s NPLEx purchase history showed that she had been purchasing a lot of

pseudoephedrine and that she associated with Mr. Hale, who had prior methamphetamine-related

activity. Mr. Hale also had an active warrant for his arrest.
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       {¶3}    Mr. Hale soon appeared at the broken-down vehicle. Another officer arrived and

both officers approached the group together. They detained Mr. Hale on his outstanding warrant.

Ms. Herczec initially told the officers that she bought the pseudoephedrine for her allergies, but

later admitted that she bought it for Mr. Hale and said that he was manufacturing

methamphetamine at his house in Akron. She provided the officers with Mr. Hale’s address and

they notified Akron police. The agency with the active warrant eventually informed Brimfield

police that it did not want to pick up Mr. Hale on the warrant, so all three individuals were

released and they waited for a ride in the Walmart parking lot.

       {¶4}    Meanwhile, based on the information from Brimfield police, Akron police

officers investigated and discovered an active methamphetamine lab at Mr. Hale’s residence.

Akron police then asked Brimfield police to arrest Mr. Hale and Ms. Herczec. Upon execution

of a search warrant for the residence, officers discovered many items related to the manufacture

of methamphetamine.

       {¶5}    Mr. Hale was indicted on multiple drug-related charges. He filed a motion to

suppress and the trial court held a hearing over the span of two days. The court denied the

motion. After a jury trial, Mr. Hale was found guilty of illegal manufacture of drugs, illegal

assembly or possession of chemicals for the manufacture of drugs, aggravated possession of

drugs, and illegal use or possession of drug paraphernalia. The illegal manufacturing and illegal

assembly offenses were merged for sentencing and Mr. Hale was sentenced to a total of nine

years in prison.

       {¶6}    Mr. Hale now appeals from his convictions and raises one assignment of error for

this Court’s review.
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                                               II.

                              ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
       APPELLANT’S MOTION TO SUPPRESS.

       {¶7}   In his sole assignment of error, Mr. Hale argues that the trial court erred in

denying his motion to suppress. We disagree.

       {¶8}   A motion to suppress presents a mixed question of law and fact:

       When considering a motion to suppress, the trial court assumes the role of trier of
       fact and is therefore in the best position to resolve factual questions and evaluate
       the credibility of witnesses. Consequently, an appellate court must accept the trial
       court’s findings of fact if they are supported by competent, credible evidence.
       Accepting these facts as true, the appellate court must then independently
       determine, without deference to the conclusion of the trial court, whether the facts
       satisfy the applicable legal standard.

State v. Oberholtz, 9th Dist. Summit No. 27972, 2016-Ohio-8506, ¶ 5, quoting State v. Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶9}   The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, provides that “[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 * * *.”   Article I, Section 14, of the Ohio Constitution contains nearly identical

language. “For a search or seizure to be reasonable under the Fourth Amendment, it must be

based upon probable cause and executed pursuant to a warrant, unless an exception to the

warrant requirement applies.” State v. Hetrick, 9th Dist. Lorain No. 07CA009231, 2008-Ohio-

1455, ¶ 19, citing Katz v. U.S., 389 U.S. 347, 357 (1967). “One well-delineated exception to the

warrant requirement occurs where police officers perform an investigatory stop based on their

reasonable suspicion that criminal activity is afoot.” State v. Jackson, 9th Dist. Lorain No.

14CA010555, 2015-Ohio-2473, ¶ 13, citing Terry v. Ohio, 392 U.S. 1, 21 (1968).
                                                 4


       {¶10} Mr. Hale argues that the Brimfield officers did not have reasonable suspicion,

based on specific, articulable facts, that criminal activity was afoot to: (1) justify going to the

Walmart parking lot to investigate Ms. Herczec’s purchase of pseudoephedrine; (2) question Ms.

Herczec or R.S. about the pseudoephedrine purchase; or (3) detain or Mirandize Ms. Herczec.

See Miranda v. Arizona, 384 U.S. 436 (1966). He argues that the testimony of several officers at

the suppression hearing indicated that they “acted without any objective justification, and on

nothing more than an ‘inchoate suspicion’ or a ‘hunch’ of criminal activity.”

       {¶11} We first note that Mr. Hale did not raise the above issues in his motion to

suppress or at the suppression hearing and he may not now argue them for the first time on

appeal. See State v. Nestor, 9th Dist. Summit No. 27800, 2016-Ohio-1333, ¶ 18. Mr. Hale

argued at the trial court level that his warrantless arrest was unreasonable per se. At the hearing,

he relied on Heston and argued that a warrantless arrest is only valid “where the arresting officer

has probable cause to believe that a felony was committed by [the] defendant and the

circumstances are such as to make it impracticable to secure a warrant.” (Emphasis added.)

State v. Heston, 29 Ohio St.2d 152 (1972), at paragraph two of the syllabus. Mr. Hale’s

contention was that since the police had time to secure a search warrant for the house, they

should have also secured an arrest warrant for him, and that the State subsequently failed to show

that it was impracticable to obtain an arrest warrant.

       {¶12} Furthermore, Mr. Hale’s new arguments concern the constitutional rights of third

parties. “Fourth Amendment rights are personal in nature and may not be vicariously asserted by

others.” State v. Dennis, 79 Ohio St.3d 421, 426 (1997). It has been well-established that:

       [S]uppression of the product of a Fourth Amendment violation can be
       successfully urged only by those whose rights were violated * * *, not by those
       who are aggrieved solely by the introduction of damaging evidence.
       Coconspirators and codefendants have been accorded no special standing.
                                                 5



Alderman v. United States, 394 U.S. 165, 171-172 (1969).

       {¶13} Accordingly, we will not address the merits of Mr. Hale’s new arguments

concerning the investigating, questioning, or detaining of Ms. Herczec or R.S., which have been

raised for the first time on appeal.

       {¶14} Mr. Hale’s sole assignment of error is overruled.

                                                III.

       {¶15} Mr. Hale’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
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HENSAL, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
