State v. Preston
2012 Ohio 6176
Ohio Ct. App.2012Background
- Officer responded to complaints of a loose dog at Orchard Lake Mobile Home Park; 13-year-old Mason answered the door and indicated parents were inside.
- Officer entered the home after Mason allowed entry by saying “I guess,” noting a smell of burnt marijuana.
- Appellant Thomas Preston admitted smoking marijuana and turned over drugs, a pipe, and rolling papers.
- Appellant was charged with possession of marijuana (minor misdemeanor) and illegal use/possession of drug paraphernalia (fourth-degree misdemeanor).
- Motion to suppress the evidence as illegally obtained was denied; appellant pled no contest to paraphernalia and marijuana charge dismissed; sentence imposed.
- Appellant appeals raising two assignments of error challenging both the entry’s legality and the voluntariness of consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mason had authority to consent to entry | Preston | Preston | Waived; not raised below; overruled as to merits. |
| Whether Mason’s consent was voluntary to enter the home | State | Mason did not voluntarily consent; consent was not valid | Consent found voluntary; entry lawful; suppression denied. |
Key Cases Cited
- Xenia v. Wallace, 303 N.E.2d 1 (Ohio 1988) (require notice of suppression grounds to prosecutors; waiver if not raised)
- Gunn, 2004-Ohio-6665 (Ohio App. – 12th Dist. 2004) (consent to enter can justify entry where officer seeks only to enter and questions; lower standard for consent to enter)
- Illinois v. Rodriguez, 497 U.S. 177 (U.S. 1990) (consent must be voluntary; totality of circumstances)
- Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. 1973) (voluntariness of consent; totality of circumstances test)
- Bumper v. North Carolina, 388 U.S. 543 (U.S. 1968) (consent must be voluntary and freely given)
- State v. DeHass, 10 Ohio St.2d 230 (Ohio 1967) (credibility assessment of witnesses determined by the trier of fact)
- Jimenez, 2012-Ohio-3318 (Ohio 2012) (mixed question of law and fact review for suppression rulings)
- Pamer, 70 Ohio App.3d 540 (Ohio App. 9th Dist. 1990) (credibility and weight of witness testimony in suppression context)
- Rammel, 2000 WL 1336493 (Ohio App. – 12th Dist. 2000) (distinguishes consent to enter from consent to search)