STATE OF OHIO, Plаintiff-Appellee, v. THOMAS C. PRESTON II, Defendant-Appellant.
CASE NO. CA2012-05-036
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
12/28/2012
2012-Ohio-6176
HENDRICKSON, P.J.
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2012CRB0631
Donald W. White, Clermont County Prosecuting Attorney, David H. Hoffmann, 123 North Third Street, Batavia, Ohio 45103, for plaintiff-appellee
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third Street, Batavia, Ohio 45103, for defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Thomas Preston, appeals from his conviction in the Clermont County Municipal Cоurt for possession of drug paraphernalia. For the reasons stated below, we affirm the decision of the municipal court.
{¶ 2} On January 28, 2012, Officer Robert Hirsch of the Miami Township Police Depаrtment was dispatched to Orchard Lake Mobile Home Park in Clermont County, Ohio, to
{¶ 3} Once outside, Officer Hirsch questioned appellant about the smell of marijuana and told appellant that he could return with a search warrant for the residence to search the home for drugs. Appellant then admitted to smoking marijuana inside the home and turned over the drugs, along with a pipe and some rolling papers.
{¶ 4} Appellant was subsequently charged with possession of less than 100 grаms of marijuana in violation of
{¶ 5} Appellant timely appeals, raising two assignments of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE MUNICIPAL COURT ERRED IN FINDING THAT APPELLANT‘S TEENAGE SON HAD AUTHORITY TO CONSENT TO OFFICER HIRSCH‘S ENTRY INTO THE RESIDENCE.
{¶ 9} The Supreme Court of Ohio has held that an accused who seeks the suppression of evidence obtained during a warrantless search or seizure must “raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge.” Xenia v. Wallace, 37 Ohio St.3d 216 (1988), paragraph one of the syllabus. See also State v. Mixner, 12th Dist. No. CA2001-07-074, 2002 WL 83742, * 3 (Jan. 22, 2002) (“if a motion is not filed raising a particular suppression issue, that issue is waived“).
{¶ 10} Because appellant did not raise the issuе of his son‘s authority to consent below, we decline to address it for the first time on appeal.
{¶ 11} Appellant‘s first assignment of error is overruled.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE MUNICIPAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO SUPPRESS AS THE CONSENT TO ENTER ACQUIRED FROM APPELLANT‘S TEENAGE SON WAS NOT VOLUNTARY.
{¶ 14} Appellant next argues that the municipal court erred when it overruled his motion to suppress bеcause his son did not voluntarily give consent for Officer Hirsch to enter the home.
{¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed question
{¶ 16} Here, it is undisрuted that Officer Hirsch did not have a warrant authorizing him to enter appellant‘s home. Warrantless home entries are presumptively unreasonable. State v. Gunn, 12th Dist. No. CA2003-10-035, 2004-Ohio-6665, ¶ 19, citing State v. Nields, 93 Ohio St.3d 6, 15 (2001). The burden is on the state to overcome the presumption by demonstrating that the entry fell within one of the well-recognized exceptions to the warrant requirement. See State v. Kessler, 53 Ohio St.2d 204, 207 (1978).
{¶ 17} One of the established exceptions to the warrant requirement is when an officer‘s entry into a home is authorized by the voluntary consent of the occupant. Gunn, 2004-Ohio-6665 at ¶ 20, citing Illinois v. Rodriguez, 497 U.S. 177, 180, 110 S.Ct. 2793 (1990). The issue of whether consent was voluntarily given is an issue of fact to be determined based on the totality of circumstances. Gunn at ¶ 20, citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041 (1973). The state has the burden of proving that consent was freely and voluntarily given. Gunn at ¶ 20, citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788 (1968).
{¶ 18} In this case, the municipal court found that Officer Hirsch‘s entry into appellant‘s home was “consensual and therefore lawful.” The court explained that Officer Hirsch asked
{¶ 19} Initially, we find it important to note that that this case merely involves consent to enter the home, and not consent to search the home. During the suppression hearing, Officer Hirsch clearly testified that he did not intend to search appellant‘s house for drugs, but that he simply wanted to speak to appellant regarding his failure to restrain his dog. Appellant‘s son, Mason, even testified that Officer Hirsch did not appear to be “looking around” for anything while hе was inside.
{¶ 20} The distinction between consent to search and consent to enter a home is not always carefully made. State v. Lawson, 12th Dist. No. CA2009-08-020, 2010-Ohio-1103, ¶ 9, citing Gunn, 2004-Ohio-6665 at ¶ 22. See also State v. Rammel, 12th Dist. No. CA99-10-023, 2000 WL 1336493 (Sept. 18, 2000); State v. Simmons, 4th Dist. No. 05CA4, 2006-Ohio-953, ¶ 28. “When the intent of the officer is not to search, but merely to еnter and ask questions, courts have applied a lower standard for proving voluntary consent.” Gunn at ¶ 22, citing State v. Chapman, 97 Ohio App.3d 687, 689-690 (1st Dist.1994); Akron v. Harris, 93 Ohio App.3d 378, 382 (9th Dist.1994).
{¶ 21} In this case, we find that Officer Hirsch‘s entry into appellant‘s home was valid based upon Mason‘s cоnsent.
{¶ 22} During the suppression hearing, Officer Hirsch testified that when Mason answered the door, he asked Mason whether he lived there and if his parents were home. Mason responded affirmatively and indicated that his parents were in the back. Officer
{¶ 23} However, Mason offered conflicting testimony as to his interaction with Officer Hirsch prior to allowing the officer into the home. Mason testified that when Officer Hirsch asked to come inside, he responded, “I guess,” but what he really meant was “I don‘t know.” Mason also testified that he was about to say “let me go get my dad,” but before he could do so, Officer Hirsch came in the door, causing Mason to step aside in order to avoid making physical contact with the officer.
{¶ 24} When there is a conflict in the testimony of witnesses, as here, it is for the trier of fact to dеtermine the weight and credibility to be given such evidence. See State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. “Such a determination must be made, not merely from the substance of the testimony, but from all facts and circumstances surrounding the testimony, particularly the manner and demeanor of the witnesses, which only the trier of fact can observe.” State v. Pamer, 70 Ohio App.3d 540, 543 (9th Dist.1990). See also Jimenez, 2012-Ohio-3318, at ¶ 8; Rammel, 2000 WL 1336493 at * 2. We find that there is competent, credible evidence to support the municipal court‘s finding that, based on the totality of the circumstances, Mason voluntarily consented to Officer Hirsch‘s entry into the home. While Mason testified that he was hesitant or unsure of whether to allow Officer Hirsch inside, it was within the court‘s power to believe the officer‘s take on the interaction, and the record supports the court‘s decision.
{¶ 25} Because Officer Hirsch had Mason‘s consent, he could lawfully enter the home. Once legally inside, Officer Hirsch was “not required to remain blind to the obvious,” or ignore the characteristic odor of marijuana. Rammel at * 2, quoting Pamer at 543. Appellant does not claim that Officer Hirsch was not qualified to detect the smell of
{¶ 26} Accordingly, the municipal court did not err in denying appellant‘s motion to suppress.
{¶ 27} Appellant‘s second assignment of error is overruled.
{¶ 28} Judgment affirmed.
PIPER and BRESSLER, JJ., concur.
Brеssler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.