[Cite as State v. Weaver, 2018-Ohio-2675.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2017-A-0038
        - vs -                                 :

DEAN B. WEAVER,                                :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016
CR 00580.

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).

Marie Lane, Ashtabula County Public Defender, Inc., 4817 State Road, #202,
Ashtabula, OH 44004 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Dean B. Weaver, appeals from the judgment of the Ashtabula

County Court of Common Pleas, denying his motion to suppress evidence seized from

his residence during the execution of an arrest warrant.      At issue is whether the

deputies possessed probable cause to conduct a warrantless search of appellant’s

dwelling. For the reasons that follow, we affirm.
       {¶2}   On August 24, 2016, at approximately 10:45 p.m., Deputies Matthew

Johns and Brian Sterrick, of the Ashtabula County Sheriff’s Office, arrived at appellant’s

residence to execute an arrest warrant. The warrant was premised upon appellant’s

failure to appear on a minor misdemeanor “failure to wear a seat belt” offense. The

deputies parked their cruiser away from the residence and approached the home from

the rear. Tactically, they testified, such measures are taken when executing an arrest

warrant to avoid detection and to preserve officer safety.

       {¶3}   As they were surveying the property, the deputies noticed a tan-colored

Chevy Blazer in the driveway. Deputy Johns knew the vehicle belonged to one

Christopher Catron, apparently from previous encounters.          Deputy Johns, who is

certified as a clandestine methamphetamine laboratory officer, testified he had recently

checked Mr. Catron’s Sudafed purchases, which revealed he had bought the drug not

long ago.     Deputy Johns underscored that Sudafed is the primary precursor to

methamphetamine manufacture.

       {¶4}   Deputy Johns also testified that he had received between seven and 10

informal reports, either through colleagues at Sheriff’s Office or from concerned citizens,

that appellant’s residence was being used to manufacture methamphetamine.             The

reports involved strong chemical odors emanating from the home, heavy, short-duration

vehicle and foot traffic, as well as people bringing strange packages into the residence.

       {¶5}   As the deputies approached the back door, thy peered into a rear window.

The window was covered, but they could partially see into the kitchen area. There, they

observed a canister of lighter fluid and Mr. Catron, vigorously shaking a plastic

beverage bottle. The substance in the bottle was described as “sludgy,” “whitish,” and




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“slurry.”   The deputies each testified that the lighter fluid, in conjunction with the

previous reports and Mr. Catron’s recent Sudafed purchase, that Mr. Catron was

manufacturing of methamphetamine using the “one-pot” method. Deputy Johns

subsequently requested back up because the home potentially contained multiple

occupants     and    there   is     a   heightened   physical   danger   associated    with

methamphetamine production.

       {¶6}    Once assistance arrived, the deputies knocked on the door and appellant

answered.     Appellant immediately closed the door and locked it.           The deputies

subsequently breached the residence and took appellant and Mr. Catron into custody.

After conducting a protective sweep of the home, the officers proceeded to search for

the “lab” which, according to Deputy Johns, was in a “highly volatile state” after being

shaken. Officers searched the premises and eventually found the bottle in an upstairs

bathroom, concealed in the wall.

       {¶7}    Appellant was indicted on one count of arson, in violation of R.C. 2909.03,

a felony of the fourth degree; one count of illegal manufacture of drugs, in violation of

R.C. 2925.04(A)(C)(3)(a), a felony of the second degree; one count of aggravated

possession of drugs, in violation of R.C. 2925.11(A)(C)(1)(c), a felony of the second

degree; one count of illegal assembly or possession of chemicals for the manufacture of

drugs, in violation of R.C. 2925.041(A), a felony of the third degree; and one count of

possessing criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree.

Appellant pleaded not guilty to the charges.

       {¶8}    Appellant filed a motion to suppress evidence and, after a hearing, the trial

court denied the motion.          The court determined the evidence obtained from the




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warrantless search was admissible because it was found and seized under exigent

circumstances. Appellant ultimately withdrew his plea of not guilty and entered a plea of

no contest to the aggravated possession of drugs charge. The remaining counts were

dismissed. After a sentencing hearing, the trial court ordered appellant to serve a four-

year term of imprisonment. This appeal follows.

       {¶9}   Appellant’s sole assignment of error asserts:

       {¶10} “The trial court erred when overruling appellant’s motion to suppress.”

       {¶11} 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, ¶8.                  An

“appellate court 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 (1982).

Assuming the facts are properly supported, “the appellate court must then

independently determine, without deference to the [legal] conclusion[s] of the trial court,

whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,

124 Ohio App.3d 706 (3d Dist. 1997).

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

unreasonable searches and seizures. See, e.g., Terry v. Ohio, 392 U.S. 1, 8 (1968).

Warrantless searches and seizures violate this prohibition unless conducted pursuant to

one of the “few specifically established and well-delineated exceptions.” (Citations

omitted.) See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967).

       {¶13} An “arrest warrant is sufficient [authorization] to enter a * * * residence to

effectuate the warrant if [a] police [officer] has reason to believe that the suspect lives in

the [residence] and is in fact [there] at the time the arrest warrant is executed.”




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(Emphasis added.) State v. Cooks, 2d Dist. Clark No. 2016-CA-40, 2017-Ohio-218, ¶10.

In other words, “police officers do not need probable cause to enter a residence to

execute an arrest warrant provided they have a reasonable belief, founded in common

sense and based on the totality of the circumstances, that the suspect resides in the

home and that he is present at the time.” (Emphasis added.) Id. at ¶11.

      {¶14} Appellant does not contest the validity of the arrest warrant. Moreover, he

does not claim that the residence at issue was not his home. Hence, once the deputies

determined appellant was in the home, they possessed the authority to enter the

residence to effectuate appellant’s arrest. The deputies were properly on the premises

and therefore the only matter at issue was whether the circumstances justified the

warrantless search of appellant’s residence.

      {¶15} “Under applicable legal standards, the State has the burden of showing

the validity of a warrantless search, because warrantless searches are ‘per se

unreasonable under the Fourth Amendment - subject only to a few specifically

established and well delineated exceptions.’” State v. Hilton, 2d Dist. Champaign No.

08-CA-18, 2009-Ohio-5744, ¶21-22, citing Xenia v. Wallace, 37 Ohio St.3d 216, 218

(1988). Exigent circumstances are a well-established exception to the Fourth

Amendment’s warrant requirement. State v. Andrews, 177 Ohio App.3d 593, 2008-

Ohio-3993, ¶23 (11th Dist.). An exigent circumstance is, inter alia, either an emergency

situation which arises when a person in the home is in need of “immediate aid’” or there

is a life-threatening situation. Mincey v. Arizona, 437 U.S. 385, 392-393 (1978). “The

exigent circumstances doctrine requires that, in the absence of a search warrant,

probable cause plus exigent circumstances are required to effectuate a warrantless




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entry of a home. Kirk v. Louisiana, 536 U.S. 635, 637 (2002). And this court has held

that “if officers have probable cause to believe that a meth lab is being operated on the

premises, the risk of explosion constitutes exigent circumstances, authorizing officers

under the emergency aid exception to enter the premises without a search warrant in

order to protect the public.” State v. Campbell, 11th Dist. Ashtabula No. 2013-A-0035,

2013-Ohio-5823, ¶36; see, also, State v. White, 175 Ohio App.3d 302, 2008-Ohio-657,

¶19 (9th Dist.) (“This court has previously held that the danger that clandestine

methamphetamine laboratories pose to occupants, officers, and the community is such

that ‘the suspected production of methamphetamine constitutes per se exigent

circumstances.’” State v. Sandor, 9th Dist. Summit No. 23353, 2007-Ohio-1482, ¶10.)

      {¶16} In denying appellant’s motion to suppress evidence, the trial court

observed:

      {¶17} Even without the arrest warrant, it is likely, the deputies would have
            been justified to go to the home of Defendant Weaver for the sole
            purpose of investigating the reports and multiple complaints of
            methamphetamine production, strong chemical odors, and high
            traffic in and out of the home. Regardless, the Deputies were
            lawfully at the residence when they observed in plain view, with
            their own eyes, through a window, what they knew from their
            experience to be methamphetamine manufacturing. The deputies
            had probable cause based on these observances. Armed with this
            knowledge, the exigent circumstances exception allowed them to
            make a warrantless search of the home and seizure of evidence of
            methamphetamine manufacturing.

      {¶18} Appellant contends the trial court erred in denying the motion based upon

exigent circumstances. In support, he cites this court’s holding in State v. Link, 11th

Dist. Lake No. 2015-L-078, 2016-Ohio-4597. In Link, an unidentified citizen informant

contacted police complaining of toxic fumes or chemical smells emanating from Link’s

apartment.   Officers confirmed Link was the renter of the apartment; noted he had



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purchased pseudoephedrine nine times over the past three and one-half months,

including a purchase on that day. Four and one-half hours after the informant placed

the call, officers proceeded to the apartment to conduct a “knock and talk” with its

occupant(s).   Upon arrival, officers did not notice any chemical odor.      The officers

knocked on the door and heard whispers inside the apartment. After approximately five

minutes, an individual male opened the door; another male was also in the apartment.

Neither, however, was a tenant. The men confirmed Link had left the residence earlier.

The officers believed there was a strong possibility that methamphetamine was being or

had been manufactured inside the apartment and, as a result, conducted a protective

sweep. They found no obvious evidence of methamphetamine manufacturing. After

questioning the two men found in the apartment, one admitted he purchased

pseudoephedrine from appellant for the purpose of providing the drug to another

individual for the manufacture of methamphetamine.        The trial court denied Link’s

motion to suppress evidence, finding exigent circumstances justified the search of Link’s

apartment. Link subsequently pleaded no contest to illegal assembly or possession of

chemicals for the manufacture of drugs.

      {¶19} On appeal, this court determined there were no exigent circumstances as

there was no “immediate need” or emergency at hand.            Id. at ¶30.    This court

underscored the officers waited four and one-half hours to investigate the complaint,

during which time they had the opportunity to obtain a warrant. Id. Moreover, upon

arrival, there was no indication that methamphetamine production was or had recently

occurred, i.e., there was no chemical or toxic odor, they did not observe any criminal

activity, and there was nothing in plain view that would indicate the presence of a




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methamphetamine lab. Id. at ¶31. This court therefore concluded the search of the

home was motivated for the purpose of seizing evidence of criminal activity and not due

to exigent circumstances. Id. at ¶32. The instant case is distinguishable from Link.

       {¶20} Here, although the deputies were aware of multiple complaints of noxious

chemical odors coming from the home and frequent foot-traffic in and out of the

residence, they were on the premises for the stated purpose of executing a valid arrest

warrant.   Even though they could have executed the warrant earlier in the day,

testimony established that the deputies prefer to execute arrest warrants at night for

officer safety and to avoid detection by the potential arrestee. Upon arrival, they peered

into a window and observed, in plain view, lighter fluid (a chemical used in the

production of methamphetamine) and Mr. Catron shaking a bottle with a sludgy

substance. Both deputies testified such actions, in relation to the surrounding

circumstances, supported the reasonable inference that Mr. Catron was engaged in the

process of manufacturing methamphetamine via the “one-pot” method. And Deputy

Johns, a certified clandestine methamphetamine lab officer, testified to the heightened

danger involved in such a process, especially in light of the vigorous nature with which

Mr. Catron was reportedly shaking the substance.

       {¶21} The deputies had sufficient facts and circumstances to justify the belief

that methamphetamine production was occurring contemporaneous with their arrival at

the house. They therefore had probable cause to believe there was an existing one-pot

lab on the premises upon entry into the home. These facts, pursuant to Campbell,

supra, inter alia, support the trial court’s finding that exigent circumstances justified the




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officer’s warrantless search of appellant’s home. Accordingly, the trial court did not err

in denying appellant’s motion to suppress.

      {¶22} Appellant’s sole assignment of error lacks merit.

      {¶23} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.




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