[Cite as State v. Telshaw, 195 Ohio App.3d 596, 2011-Ohio-3373.]




                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


THE STATE OF OHIO,                                )       CASE NO. 10 MA 56
                                                  )
        APPELLEE,                                 )
                                                  )
V..                                               )       OPINION
                                                  )
TELSHAW,                                          )
                                                  )
        APPELLANT.                                )


CHARACTER OF PROCEEDINGS:                               Criminal Appeal from the Court of
                                                        Common Pleas of Mahoning County, Ohio
Case No. 06 CR 834

JUDGMENT:                                               Affirmed.

APPEARANCES:

                                                            Paul J. Gains, Mahoning County
                                                        Prosecuting Attorney, and Ralph M.
                                                        Rivera, Assistant Prosecuting Attorney,
                                                        for appellee.

:                                                          The Norton Law Firm Co., L.P.A.,
                                                        and Eric Norton, for appellant.
JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                          Dated: June 29, 2011


        WAITE, Presiding Judge.
                                                                                    -2-


       {¶ 1} Appellant, Randall Telshaw, appeals his conviction on one count of

possession of chemicals with the intent to manufacture explosives, in violation of

R.C. 2909.28(A), a felony of the fourth degree. Appellant contends that the trial court

erred when it overruled his motion to suppress evidence of the crime, which was

discovered during a warrantless search of his home. Appellant had earlier been shot

in his home during an armed robbery, and he called a friend to take care of his house

while he was in the hospital. When the friend found the front door open and a bloody

sheet on the floor, he called the police to search the home for intruders. During this

search, the police found bomb-making materials.           The record indicates that

appellant’s friend had authority to consent to a police search of the house for

intruders and that the police were engaged in community-caretaking functions when

entering the premises and when they found the bomb-making materials. The record

supports the trial court’s decision to overrule the motion to suppress, and the

judgment of the trial court is hereby affirmed.

                                      Case History

       {¶ 2} Appellant was the victim of a home invasion and armed robbery on

June 28, 2006.       He sustained gunshot wounds to both arms that required

hospitalization. While he was hospitalized, police searched his house and found

bomb-making materials including explosive chemicals, rockets, and a bazooka. On

August 10, 2006, appellant was indicted on a charge of possession of chemicals with

intent to manufacture explosives in violation of R.C. 2909.28(A), a fourth-degree

felony. Appellant filed a waiver of speedy-trial rights, and after numerous delays,
                                                                                       -3-


including substitution of counsel and mental-health assessments, he eventually filed

a motion to suppress on July 9, 2009. A hearing was held on August 31, 2009.

       {¶ 3} At the suppression hearing, appellant’s friend Arlie Utsinger testified

that appellant asked him to “secure his house, check his house,” and “take care of his

house” after the shooting incident. Utsinger explained that appellant had valuables

that he was concerned about, which he described as “car engines and things that

[he] knew about from the machine shop.” Utsinger testified that appellant did not ask

him to stay at the house but made it clear that he had permission to enter the house,

retrieve and look after things on appellant’s behalf, and secure the house.

       {¶ 4} When Utsinger arrived at appellant’s residence, the front door was ajar

and a bloody sheet was in the doorway. Utsinger called a friend’s daughter because

he was afraid to enter the house, and she called the police. When the officers

arrived, Utsinger explained that the homeowner had been shot there the night before

and that he had asked Utsinger to “secure it, lock it up, whatever. That’s the gist of it,

to look after his stuff.” Utsinger testified that the police officers knew that appellant

had authorized his entry into the house. According to one of the officers, Utsinger

believed that appellant’s next-door neighbors had perpetrated the crime and feared

that they may have reentered the house after appellant was taken to the hospital.

Utsinger asked them to walk through the house to determine whether the individuals

that shot appellant had returned. The officers contacted their supervisor, who, after

determining that the officers believed that they had ample manpower, authorized their

entry into the house.
                                                                                     -4-


      {¶ 5} On cross-examination, Utsinger testified that he “thought [he] heard

something” coming from the house and that he told the officers that he heard a

sound.   He further testified that he “thought [the officers] did, too.”      However,

Youngstown Police Department Officer David Wilson did not testify that Utsinger told

the officers that he had heard any noise coming from the house, and he denied that

the officers heard anything. Officer Wilson testified that he believed that Utsinger had

authority to consent to the officers’ entry into the home “[b]ecause he said it was his

friend’s house, he was there and there’s no other reason for him to be there at this

house to check the house out.”

      {¶ 6} Wilson testified that he and the other officer went from room to room on

the first floor, then the second floor, and then the basement, making certain that the

windows were closed and looking for signs of forcible entry into the residence. While

checking the basement, the officers discovered approximately 20 propane tanks,

pipes and tubing, and a number of 55-gallon drums, one of which was labeled

“phosphate.” The officers recognized the items in the basement as bomb-making

materials. The officers retraced their steps out of the house and contacted the bomb

squad. The bomb squad then conducted a search of the house.

      {¶ 7} The following day, June 30, 2006, a special agent with the Bureau of

Alcohol, Tobacco, and Firearms, Kimberly Riddell, was dispatched with two

Youngstown police detectives and two Federal Bureau of Investigation agents to the

hospital to interview appellant. After appellant was Mirandized, Riddell explained to

him that certain materials had been discovered by the police, including “the rockets,

the chemicals, the ammonium nitrate, potassium nitrate, methylene chloride,
                                                                                  -5-


potassium perchlorate,” and inquired as to whether there were any booby traps or

explosive devices in the house that might be triggered when the police removed the

dangerous materials from the house. Appellant assured Riddell that there were no

live devices or bombs in the house, no chemicals had been mixed, and the rockets

were inert. He consented to a search of his home and also agreed to allow law-

enforcement agents to remove from the house any chemicals or devices that they

deemed to be dangerous.         Appellant signed a preprinted Youngstown Police

Department consent-to-search form.

       {¶ 8} When asked the reason that Riddell had requested appellant’s consent

to search the house after the house had already been searched by the bomb squad,

she explained that secondary devices often accompany primary devices and that she

had asked appellant whether there were any secondary devices out of safety

concerns for the officers and agents who would be removing the primary devices as

well as concern for the surrounding neighborhood. She further testified that she

believed that she had not needed appellant’s consent, because there was sufficient

probable cause to search the house.

       {¶ 9} The trial court held a hearing on the motion to suppress on August 31,

2009. Although there is no judgment entry overruling the motion to suppress, the

parties agree that the court denied the motion and the case then proceeded to jury

trial. On January 29, 2010, the jury returned a guilty verdict. On March 4, 2010, the

court sentenced appellant to community-control sanctions, fines, court costs, and

restitution. This timely appeal followed.
                                                                                    -6-


      {¶ 10} Appellant argues in his sole assignment of error that there were no

exigent circumstances on June 29, 2006, to justify a warrantless search and that

Utsinger did not have common authority to consent to a search of appellant’s home.

Appellant further contends that the materials found in his basement were not

incriminating evidence and therefore did not create probable cause to search the rest

of the house.

                                 Assignment of Error

      {¶ 11} “The trial court erred in denying defendant-appellant’s motion to

suppress in violation of his constitutional right of protection against warrantless,

nonconsensual searches in violation of his rights under Article I, Section 10 of the

Ohio Constitution and the Fourth Amendment to the U.S. Constitution.”

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

14, Article I of the Ohio Constitution secure an individual’s right to be free from

unreasonable searches and seizures and require warrants to be particular and

supported by probable cause. Probable cause for a search warrant exists when a

reasonably prudent person would believe that there is a fair probability that the place

to be searched contains evidence of a crime. Illinois v. Gates (1983), 462 U.S. 213,

238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527. Warrantless entry by law-enforcement

personnel into premises in which an individual has a reasonable expectation of

privacy is per se unreasonable unless it falls within a recognized exception to the

warrant requirement. Minnesota v. Olson (1990), 495 U.S. 91, 110 S.Ct. 1684, 109

L.Ed.2d 85.
                                                                                    -7-


      {¶ 13} “Once a warrantless search is established, the burden of persuasion is

on the state to show the validity of the search.” Xenia v. Wallace (1988), 37 Ohio

St.3d 216, 218, 524 N.E.2d 889. In considering a motion to suppress, the trial court

assumes the role of the trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of the witnesses. State v. Mills (1992),

62 Ohio St.3d 357, 366, 582 N.E.2d 972. Accordingly, appellate courts are bound to

accept the trial court's findings of fact if they are supported by competent, credible

evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594, 621 N.E.2d 726.

However, we must determine independently whether the trial court’s conclusions of

law, based on those findings of fact, are correct. State v. Klein (1991), 73 Ohio

App.3d 486, 488, 597 N.E.2d 1141.

      {¶ 14} Law-enforcement agents “bear a heavy burden when attempting to

demonstrate an urgent need that might justify warrantless searches and arrests.”

Welsh v. Wisconsin (1984), 466 U.S. 740, 749-750, 104 S.Ct. 2091, 80 L.Ed.2d 732.

The state must “demonstrate exigent circumstances that overcome the presumption

of unreasonableness that attaches to all warrantless home entries.”        Id. at 750.

Further, there must be some real, immediate, and serious consequence, if the officer

postponed action in order to get a warrant, for the risk-of-harm exigency to apply.

Minnesota v. Olson.

      {¶ 15} Evidence that is obtained in violation of the Fourth Amendment will

generally be prohibited from trial under the exclusionary rule. “Although the Fourth

Amendment does not explicitly provide that violations of its provisions will result in

suppression of evidence obtained as a result of the violation, the United States
                                                                                      -8-


Supreme Court has held that the exclusion of that evidence is an essential part of the

Fourth Amendment.” State v. Jones (2000), 88 Ohio St.3d 430, 434, 727 N.E.2d

886.

       {¶ 16} Consent is a well-recognized exception to the warrant requirement.

Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d

854. Generally, consent to search a person’s residence may be obtained from a third

party who possesses common authority over, or other sufficient relationship to, the

premises. United States v. Matlock (1974), 415 U.S. 164, 171, 94 S.Ct. 988, 39

L.Ed.2d 242. “Common authority” rests on “mutual use of the property by persons

generally having joint access or control for most purposes.” Id. at 171, fn. 7. The

principle of common authority in this context is not derived from property law, and it is

generally agreed that a landlord cannot give consent for a general search of a

tenant’s property, nor can a hotel clerk open customer’s room to the police for

inspection. Id. Common authority derives from the actual use of the property based

on the mutual understanding of the parties, such that each person has “assumed the

risk that one of their number might permit the common area to be searched.” Id.

This rule was extended in Illinois v. Rodriguez (1990), 497 U.S. 177, 110 S.Ct. 2793,

111 L.Ed.2d 148, wherein the United States Supreme Court held at paragraph two of

the syllabus: “A warrantless entry is valid when based upon the consent of a third

party whom the police, at the time of the entry, reasonably believe to possess

common authority over the premises, but who in fact does not.”

       {¶ 17} Appellant cites numerous cases, though no case particularly on point,

to demonstrate that Utsinger did not have common authority to consent to a search of
                                                                                    -9-


appellant’s house. He relies on cases involving loaned cars, employees consenting

to searches of employer’s property, hotel rooms, and a handyman.            The most

analogous circumstance, though, is that of a house-sitter, and we are aware of only

one case fairly on point in Ohio caselaw. In State v. Huntington, 190 Ohio App.3d

711, 2010-Ohio-3922, 944 N.E.2d 240, the defendant had asked a friend, Brad

Waltz, to visit his home three days per week to take care of the defendant’s cat while

she was out of town. Someone else was designated to take care of the cat on the

other days of the week. Waltz was given a front door key. When Waltz went to the

house, the defendant sent him a message asking him to turn off some lights. Waltz

could not find the light switch downstairs and looked upstairs for it. There he found a

cat water dish, so he went into the master bathroom to get some water. When he

entered the bathroom he found what appeared to be illegal drugs. Waltz came back

a few days later and took photographs of the drugs and also found additional drugs

on the dining room table. Shortly thereafter he called the Bowling Green Police

Department to report what he had seen.

      {¶ 18} When the police met Waltz at the house, the second cat-sitter, Farrah

Anderson, was there.     Anderson contacted the defendant immediately, who then

instructed Anderson not to let anyone in the house. Nevertheless, the police officers

and Waltz entered the house and found what appeared to be anabolic steroids in the

kitchen. The officers then left to obtain a search warrant and confiscated the drugs

and other drug paraphernalia. Huntington was charged with one count of permitting

drug use. The defendant filed a motion to suppress, which was denied by the trial
                                                                                  -10-


court on the grounds that Waltz had sufficient authority over the common areas of the

house as a cat-sitter to allow the police to inspect those areas.

       {¶ 19} The Sixth District Court of Appeals did not agree with the trial court’s

view of the case. It found that Waltz did not have any degree of authority over the

house simply from being asked to feed the defendant’s cats three days each week.

Id. at ¶ 22. The Sixth District determined that Waltz had no responsibilities with

respect to the house itself, much less the contents of the house, and was not a

cotenant, inhabitant, or overnight guest in the house. The court defined Waltz as a

cat-sitter and not a house-sitter. Based on this distinction, the court determined that

he did not have joint access to the home or “control for most purposes” over the

premises. Id. Huntington therefore reversed the trial court’s ruling and granted the

motion to suppress.

       {¶ 20} Using Huntington as a guide in our analysis, it appears that in the

instant case, Utsinger’s function is directly analogous to a house-sitter. As such, he

had authority to allow police into appellant’s house. Utsinger had authority over the

entire premises and its contents and was specifically asked to safeguard both. There

is no evidence of any limitation on Utsinger’s authority over the property and no

evidence that appellant had instructed Utsinger not to allow police to help him secure

the property if needed. Appellant actually told Utsinger to safeguard the property in

the house as well as the house, thus giving him free reign over the entire premises.

Furthermore, Utsinger did not ask the police to enter the property to look for evidence

that appellant had committed a crime but, rather, to help Utsinger secure the property

as he had been directed.       Although appellant did not specifically give Utsinger
                                                                                  -11-


instructions to reside in the property, it is clear from the record that Utsinger had

plenary control over the property to inspect it, examine it, protect it, secure it, and

perform whatever function was necessary to safeguard the premises and its

contents. Thus, any reasonable police officer would conclude that Utsinger had at

least the authority to ask for police assistance in checking the premises for intruders

when he found the front door open and a bloody sheet in the doorway, knowing that

a crime recently had been committed on the property and that the perpetrators had

not yet been apprehended.

      {¶ 21} Appellant contends, though, that even if the police were permitted to

enter his house to look for intruders, the scope of the search became unconstitutional

once the officer found no intruders but decided to call the Youngstown Police

Department Bomb Squad to inspect the house without first obtaining a warrant.

Appellant contends that there is nothing illegal about pipes, tubing, propane tanks, or

the 55-gallon drums. He also submits that a warrantless search was not justified

simply because one of the drums was labeled as phosphate. Appellant asks us to

take judicial notice of the fact that phosphate is a common chemical used for a wide

variety of purposes that have nothing to do with making bombs.

      {¶ 22} This argument is advanced for the first time on appeal.         It is well

established that a constitutional argument, such as a Fourth Amendment search-and-

seizure argument, cannot be raised for the first time on appeal. Howard v. Seidler

(1996), 116 Ohio App.3d 800, 815, 689 N.E.2d 572, citing State v. Smith (1991), 61

Ohio St.3d 284, 574 N.E.2d 510. Hence, appellant has waived this argument. Even

if the argument had not been waived, it has no merit.
                                                                                     -12-


       {¶ 23} First, as to the notion that this court can take judicial notice of the uses

of phosphate, it would not be appropriate in this case. Pursuant to Evid.R. 201, a

court (including an appellate court) may take judicial notice of adjudicative facts at

any stage in the proceedings. The only type of facts subject to judicial notice are

those not subject to reasonable dispute. Evid.R. 201(B). Even if a fact is capable of

being recognized under judicial notice, an appellate court will not take judicial notice

if the fact should have been raised with the trial court. “[W]hen a trial court fails to

take judicial notice of a factual matter because a party did not raise the issue, an

appellate court will not consider the fact in reviewing the appealed judgment. * * *

[This] is consistent with the fundamental appellate principle that a reviewing court

cannot decide an appeal based upon factual matters which were not before the trial

court. In addition, the rule is likewise consistent with the appellate principle that a

party will be deemed to have waived any error to which the party failed to object.”

(Citations omitted.) Hubbard v. Luchansky (1995), 102 Ohio App.3d 410, 413-414,

657 N.E.2d 352. In this appeal, appellant would have us take judicial notice not only

that phosphate has many common uses but also that these uses are more common

than its use as a component in making bombs. Appellant also apparently wants us to

take judicial notice that it is common to have a 55-gallon drum of phosphate in one’s

home. In essence, appellant would like us to rely on new evidence to help us come

to a different interpretation of the evidence than the trial court did, and this is an

inappropriate use of the principle of judicial notice.

       {¶ 24} Second, the scope of the officers’ search leading to the discovery and

identification of bomb-making materials was appropriate under the police community-
                                                                                  -13-


caretaking function to enhance public safety.      In fact, the community-caretaking

function provides a second justification for the police to enter the house in the first

place.     The community-caretaking function falls within the category of exigent

circumstances, which is a well-recognized and carefully delineated exception to the

warrant requirement. Minnesota v. Olson (1990), 459 U.S. 91, 100, 110 S.Ct. 1684,

109 L.Ed.2d 85; Welsh, 466 U.S. at 749, 104 S.Ct. 2091, 80 L.Ed.2d 732.

         {¶ 25} The United States Supreme Court has identified four main types of

exigent circumstances:      hot pursuit of a fleeing felon, imminent destruction of

evidence, the need to prevent escape, and the risk of harm to police or others. Id.

These are not the only recognized types of exigent circumstances, though. Another

subset of the exigent-circumstances category is the emergency-aid exception. In

dealing with this exception, “[t]he key issue is whether the officers ‘had reasonable

grounds to believe that some kind of emergency existed * * *. The officer must be

able to point to specific and articulable facts, which, taken with rational inferences

from those facts, reasonably warrant intrusion into protected areas.’ ” State v. White,

175 Ohio App.3d 302, 2008-Ohio 657, 886 N.E.2d 904, ¶ 17. “[T]he warrantless

entry and search must be limited in duration and scope to the purpose justifying that

intrusion, including only that which is necessary to alleviate the emergency and the

dangers associated therewith.” State v. McKinley, 2d Dist. No. 21668, 2007-Ohio-

3705, ¶ 15. Under the emergency-aid exception, an officer has both a right and a

duty to enter the premises and investigate. State v. Applegate (1994), 68 Ohio St. 3d

348, 350, 626 N.E.2d 942.
                                                                                      -14-


       {¶ 26} The community-caretaking function is closely related to the emergency-

aid exception. The community-caretaking-function rationale was first articulated in

Cady v. Dombrowski (1973), 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706. In that

case, the police discovered evidence of a crime in the trunk of a car that was

impounded after it was found disabled as a result of an accident on a highway. The

owner of the car was intoxicated and, at some point, comatose and could not make

arrangements to remove the car from the highway. The Cady court reasoned:

       {¶ 27} “Because of the extensive regulation of motor vehicles and traffic, and

also because of the frequency with which a vehicle can become disabled or involved

in an accident on public highways, the extent of police-citizen contact involving

automobiles will be substantially greater than police-citizen contact in a home or

office. Some such contacts will occur because the officer may believe the operator

has violated a criminal statute, but many more will not be of that nature. Local police

officers, unlike federal officers, frequently investigate vehicle accidents in which there

is no claim of criminal liability and engage in what, for want of a better term, may be

described as community caretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal statute.”

Id. at 441.

       {¶ 28} A community-caretaking situation more closely related to the facts of

the instant case can be found in State v. Stanberry, 11th Dist. No. 2002-L-028, 2003-

Ohio-5700.    The police officers in Stanberry arrived at the defendant’s home in

response to an emergency call about a possible overdose.             When they arrived,

rescue workers were questioning Stanberry about the pills he had ingested. When
                                                                                 -15-


Stanberry was taken to the hospital, the officers remained at the scene to question a

friend of Stanberry who had placed the emergency call, in an effort to determine

whether the overdose was intentional. In the event of an intentional overdose, the

procedure of the sheriff’s department was to notify the hospital in order to arrange a

psychiatric evaluation before releasing the patient.

       {¶ 29} While the officers were in the living room, they noticed a number of

burning candles that had burned down to the point that the wax was dripping onto the

floor. Concerned that other candles might be burning on the second floor of the

house, the officers performed a sweep of the rooms upstairs to look for burning

candles. A glow was emanating from one of the bedroom doors. When the officers

opened the bedroom door, they discovered a collection of marijuana plants under

grow lights.   The police obtained a search warrant, and the plants and other

contraband were confiscated, leading to a variety of felony drug charges. Id. at ¶ 22.

Stanberry challenged the search and seizure on the grounds that no exigent

circumstances existed.

       {¶ 30} The Stanberry court recognized that police officers may, without

reasonable suspicion of criminal activity, intrude on a person’s privacy to carry out

community-caretaking functions to enhance public safety. Id. at ¶ 23, citing State v.

Norman (1999), 136 Ohio App.3d 46, 54, 735 N.E.2d 953.             The key to such

permissible police action, the Eleventh District wrote, is the reasonableness required

by the Fourth Amendment. Stanberry at ¶ 23.

       {¶ 31} The Eleventh District Court of Appeals reviewed the evidence in light of

the officers’ community caretaking function. The Stanberry court concluded that the
                                                                                  -16-


initial reason for the entry into the house—the possible drug overdose—did not justify

a search of the upstairs.   Nevertheless, the initial entry did justify the officers in

entering the first floor, and it was there that they encountered a second problem that

needed immediate attention, that of the burning candles: “In our view, the police

officers were acting reasonably when they performed their search of the home for

burning candles. It was not unreasonable for the officers to conclude, after observing

the severely melted candles downstairs, that other candles might be lit throughout the

house.      As such, it was incumbent upon the officers to make a reasonable

investigation of appellant’s home and extinguish any remaining candles. Of course,

during this search the officers came upon appellant’s marijuana plants. Although the

plants were plainly visible from the doorway, the officers nevertheless secured a

search warrant before seizing them.     Therefore, the search and ultimate seizure

under consideration did not run afoul of the Fourth Amendment’s prohibition on

unreasonable searches and seizures.” Id. at ¶ 23.

      {¶ 32} In this appeal, the officers were first called to the appellant’s house

because Utsinger was afraid to enter the house. Utsinger informed the police that he

had authority to secure appellant’s house, that appellant had been shot in the house

the night before and was in the hospital, that the perpetrator was at large and may

have been a neighbor, and that the door was ajar and there was a bloody sheet in

the doorway. The officers undertook a community-caretaking function by examining

the house for intruders based on the potentially dangerous situation described by

Utsinger.
                                                                                   -17-

      {¶ 33} Further, the Cady court implicitly recognized that local police officers

frequently engage in citizen contacts in homes and offices. The facts in this case are

an example of the kind of citizen contact recognized in Cady. See also United States

v. Rohrig (1996), 98 F.3d 1506 (warrantless entry into a residence to reduce stereo

volume found to be reasonable under community-caretaking-functions analysis).

Consequently, for this reason, also, the warrantless entry into appellant’s home by

police officers does not run afoul of the Fourth Amendment.

      {¶ 34} It was the search for intruders, rather than a search for anything relating

to possible criminal activity by appellant, that led the officers to find what they

considered to be bomb-making materials.        As in the situation in Stanberry, the

officers encountered a second community-caretaking duty while they were still within

the scope of their initial purpose, which was to search for intruders. Their conclusion

that the materials they found were bomb-making materials was based on their

reasonable assessment of the situation.       Officer Wilson provided the following

testimony regarding the material found in the basement:

      {¶ 35} “[W]e checked the basement, me and my partner, and as we went in

the basement, I noticed a bunch of propane tanks for grills. There were probably

about 20 of them there, and I see different size pipes and tubing downstairs, and I

seen [sic] some 55-gallon drums down there and I think one of them stated

phosphate on it.

      {¶ 36} “And my buddy, he was in the service and he was over in the war. I

didn’t know too much about it, but I told my partner, ‘Don’t they make bombs out of
                                                                                  -18-


this kind of stuff,’ and he said, ‘Yeah.’ And I said, ‘Stop what we’re doing right now

and let’s retrace our steps and get out of here right now.’ ”

       {¶ 37} Appellant argues that the officers did not have probable cause to

continue searching or to call in outside help to deal with the danger. As the case law

dealing with emergency-aid and community-caretaking functions makes clear,

though, the officers did not need probable cause to carry out their duties. They

needed reasonable belief under the circumstances that an immediate danger may

exist to take steps needed to deal with the danger at hand. In any event, the record

established not only reasonable suspicion but also probable cause to believe that

contraband was in the house in plain view. In Arizona v. Hicks (1987), 480 U.S. 321,

107 S.Ct. 1149, 94 L.Ed.2d 347, the United States Supreme Court held that in

determining whether the criminal nature of an item is “immediately apparent” for

purposes of exempting the item under the plain-view exception, the officers must

have probable cause to believe the item is contraband. Id. at 327. “The ‘immediately

apparent’ requirement of the ‘plain view’ doctrine is satisfied when police have

probable cause to associate an object with criminal activity.” State v. Halczyszak

(1986), 25 Ohio St.3d 301, 496 N.E.2d 925, paragraph three of the syllabus.

       {¶ 38} Probable cause is a flexible, commonsense standard. Texas v. Brown

(1983), 460 U.S. 730, 740-744, 103 S.Ct. 1535, 75 L.Ed.2d 502. It merely requires

that the facts available to the officer would cause a man of reasonable caution to

believe that certain items may be contraband.         Id. at 740.   Probable cause to

associate an object with criminal activity does not require certainty in the minds of

police, but instead amounts to “a fair probability” that the object they see is illegal
                                                                                    -19-

contraband or evidence of a crime. State v. George (1989), 45 Ohio St.3d 325, 544

N.E.2d 640, paragraph one of the syllabus.

       {¶ 39} Nor does probable cause require a showing that such a belief is

absolutely correct or more likely true than false. State v. Paschal (Aug. 2, 1996), 2d

Dist. No. 15394; citing Brinegar v. United States (1949), 338 U.S. 160, 176, 69 S.Ct.

1302, 93 L.Ed. 1879. In ascertaining whether probable cause exists, police officers

may also rely on their specialized knowledge, training, and experience. Halczyszak,

25 Ohio St.3d 301, 496 N.E.2d 925, at paragraph four of syllabus. As the court noted

in State v. Paschal,:

       {¶ 40} “ ‘The process does not deal with hard certainties, but with probabilities.

Long before the law of probabilities was articulated as such, practical people

formulated certain common-sense conclusions about human behavior; jurors as fact-

finders are permitted to do the same—and so are law enforcement officers. Finally,

the evidence thus collected must be seen and weighed not in terms of library analysis

by scholars, but as understood by those versed in the field of law enforcement.’ ” Id.

at *3, quoting United States v. Cortez (1981), 449 U.S. 411, 418, 101 S.Ct. 690, 66

L.Ed.2d 621.

       {¶ 41} Thus, even under the probable-cause standard, the record supports the

conclusion that the actions taken by the officers were appropriate under the Fourth

Amendment. Because appellant’s arguments regarding both Utsinger’s authority to

consent to a police search and the validity of the scope of the search are meritless,

we overrule the sole assignment of error in this appeal.

                                      Conclusion
                                                                                    -20-


       {¶ 42} In summary, the officers entered appellant’s home at Utsinger’s request

due to safety concerns. The warrantless entry was justified by to Utsinger’s consent

as caretaker of appellant’s home while he was in the hospital. It was also justified as

part of the officers’ community-caretaking function. Appellant did not raise in his

motion to suppress any issues regarding the propriety of the scope of the search,

including his argument that the materials found by the police were innocuous and did

not constitute bomb-making material.       His failure to raise this with the trial court

results in any error being waived for purposes of this appeal. It is clear from the

record, though, that once the bomb-making materials were discovered, the

subsequent actions of the police and the police bomb squad were also appropriate

as part of the police community-caretaking functions. Therefore, the trial court did

not err when it denied appellant’s motion to suppress the evidence found in the

house.    Accordingly, appellant’s sole assignment of error is overruled, and the

judgment of the trial court is affirmed.


                                                                     Judgment affirmed.


       VUKOVICH and DEGENARO, JJ., concur.
