[Cite as State v. Janes, 2018-Ohio-1491.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
NATHANAEL L. JANES                           :       Case No. 17CA43
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2017CR0207




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    April 16, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOSEPH C. SNYDER                                     DAVID M. WATSON
38 South Park Street                                 3 North Main Street
Mansfield, OH 44902                                  Suite 702
                                                     Mansfield, OH 44902
Richland County, Case No. 17CA43                                                         2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Nathanael L. Janes, appeals the April 18, 2017

judgment entry of the Court of Common Pleas of Richland County, Ohio, denying his

motion to suppress. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On December 20, 2016, police officers were dispatched to appellant's

apartment on a reported domestic disturbance, possibly involving a gun. When the police

officers arrived, they heard screams coming from the apartment. They knocked on the

door and did not receive a response. They then forced entry and encountered appellant

and a woman. The two were detained while the police officers performed a protective

sweep of the apartment. When police checked an open closet, they discovered a gun on

the top shelf partially covered by a sheet. The gun had been stolen.

       {¶ 3} On April 6, 2017, the Richland County Grand Jury indicted appellant on one

count of receiving stolen property (the gun) in violation of R.C. 2913.51.

       {¶ 4} On April 14, 2017, appellant filed a motion to suppress, challenging the

search of his apartment and the seizure of the gun without a warrant. A hearing was held

on April 17, 2017. At the conclusion of the hearing, the trial court denied the motion. The

decision was memorialized by judgment entry filed April 18, 2017.

       {¶ 5} A jury trial commenced on April 17, 2017. The jury found appellant guilty

as charged. By sentencing entry filed April 20, 2017, the trial court sentenced appellant

to sixteen months in prison.

       {¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:
Richland County, Case No. 17CA43                                                         3


                                             I

      {¶ 7} "THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

SUPPRESS."

                                             I

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

denying his motion to suppress. We disagree.

      {¶ 9} As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio

St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



             "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,

      797 N.E.2d 71, ¶ 8. In ruling on 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." Id.,

      citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On

      appeal, we "must accept the trial court's findings of fact if they are supported

      by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

      19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

      "independently determine as a matter of law, without deference to the

      conclusion of the trial court, whether the facts satisfy the applicable legal

      standard." Id.
Richland County, Case No. 17CA43                                                          4

      {¶ 10} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal."

      {¶ 11} In his April 14, 2017 motion to suppress, appellant challenged the search of

his apartment and the seizure of the gun without a warrant. Appellant argued "the seizure

does not fall into one of the warrant requirement exceptions that Ohio law recognizes."

      {¶ 12} An evidentiary hearing was held on April 17, 2017. Appellee called one

witness, Mansfield Police Patrolman Joshua Frech.         Patrolman Frech testified on

December 20, 2016, he was dispatched to appellant's apartment on a reported domestic

disturbance, possibly involving a gun. T. at 9-10. He stated as part of his duties, he

needed to "make sure the people are safe and make sure we can locate and look for the

gun." T. at 11. When he and his partner arrived, they heard screams coming from the

apartment. T. at 11-12, 23. It sounded like someone was in distress. T. at 27. They

knocked on the door, but did not receive a response. T. at 12. They then forced entry

and encountered appellant and a woman. T. at 12-13, 23. Appellant did not have a gun

on his person. T. at 15. The police officers did not know how many people were in the

apartment and whether there were other victims and/or a perpetrator with a gun. T. at

13, 15, 24. The two occupants were detained while the police officers performed a

protective sweep of the apartment. T. at 13-14, 23-24. The purpose of the sweep was

to "check every closet to make sure no one is hiding. Check under the beds, anything

that anybody can hide in." T. at 14. When police checked an open closet in the main

bedroom, they discovered a gun on the top shelf partially covered by a sheet. T. at 16,

25. The handle of the gun was sticking out. Id.
Richland County, Case No. 17CA43                                                            5


       {¶ 13} At the conclusion of the hearing, the trial court denied the motion to

suppress, stating the following (T. at 32-33):



              The Fourth Amendment all comes down to what is reasonable. I do

       think it is reasonable for an officer who gets a call about an individual with

       a gun in a domestic violence situation, for him to investigate. No one would

       come to the door, and they had to force entry. Made contact with a male

       and female. At that point, they still don't know if that's the extent of the call.

       They do the protective sweep. They do see the gun in plain view during the

       protective sweep.

              I think it's reasonable for the officer to be where he was doing the

       sweep through the home. And then I think they collected the firearm, as

       they had information prior to the scene that there was a firearm involved.



       {¶ 14} In its judgment entry filed April 18, 2017, the trial court found Patrolman

Frech's testimony to be credible.

       {¶ 15} As held by the United States Supreme Court in Maryland v. Buie, 494 U.S.

325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276: "The Fourth Amendment permits a properly

limited protective sweep in conjunction with an in-home arrest when the searching officer

possesses a reasonable belief based on specific and articulable facts that the area to be

swept harbors an individual posing a danger to those on the arrest scene." That is

because police officers have an interest "in taking steps to assure themselves that the

house in which a suspect is being, or has just been, arrested is not harboring other
Richland County, Case No. 17CA43                                                             6

persons who are dangerous and who could unexpectedly launch an attack." Id. at 333.

"[A]n in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf.'

" Id. The court held, "that as an incident to the arrest the officers could, as a precautionary

matter and without probable cause or reasonable suspicion, look in closets and other

spaces immediately adjoining the place of arrest from which an attack could be

immediately launched." Id. at 334. A protective sweep "may extend only to a cursory

inspection of those spaces where a person may be found." Id. at 335.

       {¶ 16} Given the facts of this case and the reasoning in Buie, we find the protective

sweep was not overly broad. We concur with the trial court's analysis that the sweep was

reasonable.

       {¶ 17} Upon review, we find the trial court did not err in denying the motion to

suppress.

       {¶ 18} The sole assignment of error is denied.
Richland County, Case No. 17CA43                                                7


      {¶ 19} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By: Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.




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