State v. Nestor
2016 Ohio 1333
Ohio Ct. App.2016Background
- On June 18, 2014 officers, monitoring NPLEx (Sudafed purchases), identified Dustin Nestor leaving a CVS after buying Sudafed; a LEADS check showed a suspended license and a warrant. He was stopped and detained.
- A canine unit alerted to Nestor’s car; officers searched the vehicle and found Sudafed and lithium batteries; Nestor was Mirandized and detained in a cruiser.
- Nestor reportedly told officers a friend had manufactured meth in his garage; officers also spoke with Nestor’s wife, who admitted purchasing Sudafed and gave verbal consent to search the home.
- Akron officers searched the residence and found items consistent with methamphetamine production; Nestor was indicted on multiple drug- and child-endangerment-related counts, moved to suppress, then pled no contest after the trial court denied suppression.
- The trial court found Nestor’s testimony not credible (including his claimed explicit refusal to permit a home search) and concluded the residence search was justified by consent (and alternatively exigent circumstances).
Issues
| Issue | State's Argument | Nestor's Argument | Held |
|---|---|---|---|
| Whether the warrantless search of the residence was lawful because of co-occupant consent | Wife, a co-occupant, voluntarily consented to the search; that consent justified the search | Wife’s consent should not justify the search because Nestor was present and (he claims) expressly refused consent, invoking Randolph | Court held the search was justified by the wife’s consent; Randolph did not bar the search because the trial court found Nestor’s refusal not credible and the present facts differ from Randolph |
| Whether the voluntariness of the wife’s consent undermined the search | Consent was voluntary (officers’ testimony) | (Raised first time on appeal) Wife’s consent was not voluntary due to officer questioning at CVS | Not reviewed on appeal because voluntariness was not challenged at the suppression hearing and thus not preserved for appeal |
| Whether an audio recording (of Nestor’s statements) would change credibility findings | Recording would corroborate officers; State did not produce it at hearing but said it existed | Defense argued recording was not provided in discovery and could undercut officers’ testimony | Court proceeded on testimony; defense did not seek a continuance or formally object to deciding without the tape, so credibility findings stood |
| Whether exigent circumstances independently justified the warrantless entry | Officers had information of an active or recent meth lab and children in the home, creating exigency | Nestor contended officers needed a warrant absent proper consent | Court did not resolve exigency because consent dispositively justified the search (but noted exigent circumstances were argued below) |
Key Cases Cited
- State v. Burnside, 100 Ohio St.3d 152 (2003) (standard of appellate review for suppression rulings: trial court factual findings given deference; legal conclusions reviewed de novo)
- State v. Hobbs, 133 Ohio St.3d 43 (2012) (applies Burnside to suppression-review procedure)
- Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule for evidence obtained in violation of Fourth Amendment)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of consent is a factual inquiry evaluated under totality of circumstances)
- Katz v. United States, 389 U.S. 347 (1967) (Fourth Amendment protects people, not places; framework for unreasonable searches)
- Georgia v. Randolph, 547 U.S. 103 (2006) (a physically present co-occupant’s contemporaneous, express refusal to permit a search bars a warrantless search despite another occupant’s consent)
- Illinois v. Rodriguez, 497 U.S. 177 (1990) (valid consent exists when officers reasonably believe the person granting consent has common authority)
- Fernandez v. California, 134 S. Ct. 1126 (2014) (Randolph is narrow; if objecting occupant is removed from the premises by valid arrest, a co-occupant’s consent may suffice)