State v. Ash

2015 Ohio 4974

STATE OF OHIO, Plaintiff-Appellee, v. TY A. ASH, Defendant-Appellant.

Case No. 15CA1

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

November 13, 2015

DECISION AND JUDGMENT ENTRY

APPEARANCES:

James R. Kingsley, Circleville, Ohio, for appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment of conviction and sentence. Ty A. Ash, defendant below and appellant herein, entered a "no contest" plea to the manufacture of drugs in violation of R.C. 2925.04(A). Appellant assigns the following error for review:

"DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS?"

{¶ 2} During the evening of July 24, 2014, the Pickaway County Sheriff's Department received an anonymous complaint of a strange odor emanating from a mobile home on Hayesville Road. Deputies Hunter Lane and Jason Park, who were watching a different suspected drug house, were dispatched to Hayesville Road. When they arrived, they approached the front door, knocked and announced themselves. After no one responded to their knock or to their request to come to the door, Deputy Lane proceeded to the rear of the residence to attempt to contact the occupants. In so doing, Lane passed a window that contained a box fan blowing air from inside the residence¹ and he detected "a chemical smell, ammonia smell," that he later testified is indicative of "a meth operation." Deputy Park also went to the rear of the residence and he, too, detected the chemical smell. From this vantage point, the deputies observed the two individuals in the mobile home (apparently one crawling on the floor and the other peeking from the front door).

{¶ 3} When the deputies returned to the front of the residence, Jeffrey Ash (appellant's brother) came outside and was detained and handcuffed. Deputy Park then asked for permission to search the residence. Ash, however, refused to give permission and explained "there was bad stuff inside." Soon, another deputy had arrived and had taken control of Ash while Lane and Park left the scene in order to obtain a search warrant.

{¶ 4} After Lane and Park returned several hours later, they found that appellant had also exited the residence. During the execution of the search warrant, the deputies found "multiple components that are [or were] commonly associated with meth operations."

{¶ 5} Subsequently, the Pickaway County Grand Jury returned an indictment thatcharged appellant with the illegal manufacture of drugs and the illegal possession of chemicals for such manufacture. Appellant and his brother filed a "joint motion to suppress" and argued that the deputies had exceeded their constitutional authority by proceeding to the rear entrance of the residence, and this improper conduct caused them to pass the window and notice the interior air with the chemical smell. At the hearing on the motion, both deputies Lane and Park recounted their versions of the events. The Ash brothers also testified.

{¶ 6} After hearing the evidence, the trial court denied the motion to suppress. The court opined that the deputies were justified in proceeding to the residence's rear door in light of (1) the anonymous complaint of the smell, (2) the fact that they were present "on legitimate business," (3) the noises from inside and, (4) their observation of the silhouettes of individuals inside the residence that justified moving to the rear door.

{¶ 7} After the trial court's decision, appellant entered a "no contest" plea in exchange for the dismissal of the second count of the indictment. The trial court accepted appellant's plea, found him guilty and sentenced him to serve a "mandatory period" of three years in prison. This appeal followed.

I

{¶ 8} In his sole assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress evidence. Before we address the merits of the assignment of error, we first consider the appropriate standard of review that we must apply to the trial court's ruling.

{¶ 9} Appellate review of a decision on a motion to suppress evidence involves mixed questions of law and fact. State v. Grubb, 186 Ohio App.3d 744, 930 N.E.2d 380, 2010-Ohio-1265, at ¶12 (3^rd Dist.); State v. Book, 165 Ohio App.3d 511, 847 N.E.2d 52, 2006-Ohio-1102, at ¶9 (4^th Dist.). In hearing such motions, trial courts assume the role of trier of fact and are best situated to resolve factual disputes and to evaluate witness credibility. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8. Generally, appellate courts will accept a trial court's factual finding if competent and credible evidence supports that finding. State v. Little, 183 Ohio App.3d 680, 918 N.E.2d 230, 2009-Ohio-4403, at ¶15 (2^nd Dist.); State v. Metcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4^th Dist. 1996). However, appellate courts will review de novo a trial court's application of the law to those facts. State v. Higgins, 183 Ohio App.3d 465, 917 N.E.2d 363, 2009-Ohio-3979, at ¶14 (5^th Dist.); State v. Poole, 185 Ohio App.3d 38, 923 N.E.2d 167, 2009-Ohio-5634, at ¶18 (11^th Dist.).

II

{¶ 10} The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures within the privacy of their homes. The curtilage is the area around a home that a resident may reasonably expect to enjoy the sanctity and privacy of the home. Oliver v. United States (1984), 466 U.S. 170, 104 S.Ct. 1735. Generally, the extent of a home's curtilage is determined under four main factors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken to protect the area from observation by passersby. U.S. v. Dunn (1987), 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326.

{¶ 11} A law enforcement officer, absent a warrant, has no greater rights on another's property than any other visitor. Thus, police may only go upon private property in areas impliedly open to the public. State v. Tallent 2011-Ohio-1142, 6^th Dist. citing State v. Rigoulot (1992), 123 Idaho 267, 846 P.2d 9181, 1 LaFave, Search and Seizure (2004) 600-602, Section 2.3(f). The state may not intrude into areas where people have legitimate expectations of privacy without a search warrant. State v. Vondenhuevel 2004-Ohio-5348 (3^rd Dist.).

{¶ 12} In the case sub judice, appellant characterizes the deputies' approach to the residence as a "knock and talk" encounter. The Fourth Amendment to the United States Constitution² permits this "knock and talk" investigative technique when law enforcement approaches a front door of a residence without a search warrant. See State v. Young, 12^th Dist. Warren No. CA2014-05-074, 31 N.E.3d 178, at ¶24; also see United States v. Jones, 239 F.3d 716 (5^th Cir. 2001). Thus, no search warrant is needed to simply approach the front door of a residence. When a law enforcement officer without a warrant knocks on a door, they may do no more than any other private citizen might do. State v. Morgan 2014-Ohio-1900, (5^th Dist.); State v. Miller 2012-Ohio-5206, 982 N.E.2d 739; State v. Kinsell 2010-Ohio-3854 (9^th Dist.). Also, an occupant has absolutely no duty to open the door or to speak with the officer.

{¶ 13} In Tallent, an officer investigating gun shots in the neighborhood walked up a driveway to a home's rear door area because no one answered his knock at the front door. The officer saw no privacy fence or any barriers or trespassing signs at the rear of the house. The court concluded that the officer's discovery of shell casings next to the back door did not violatethe defendant's Fourth Amendment rights. Other cases also stand for the proposition that an officer may approach a home's rear door if it appears that the public is also permitted to approach the home or the back door. See, e.g., United States v. Hammett (C.A.9, 2001), 236 F.3d 1054; Miller v. State (2000), 342 Ark. 213, 27 S.W.3d 427; State v. Hilton 2009-Ohio-5744 (2^nd Dist.); State v. Edwards 2010-Ohio-826 (11^th Dist.); State v. Morgan 2014-Ohio-1900 (5^th Dist.). Absent some indication that a property owner desires to prohibit access to the rear of the home, an officer may approach the back door area. For example, a property owner could erect a fence, a gate, shrubs or plants, post no trespassing signs or make clear statements that access to the back door area is prohibited. See, e.g., Tallent; State v. Woljevach 160 Ohio App.3d 757, 2005-Ohio-2085.

{¶ 14} In the case sub judice, our review of the evidence adduced at the hearing on the motion to suppress evidence reveals that appellant's mobile home (appellant's co-defendant brother apparently leased the residence) sat on a lot in the unincorporated village of Whisler. The home had no electrical or water service and the residents used a gasoline generator. The nearest dwelling is approximately one hundred yards away. Also, apparently no driveway or sidewalk leads to the home and apparently no other buildings, fences, shrubs or other objects are located near the home. The officers first approached the small front porch and knocked and announced their presence, but after no one answered the door, the officers walked to the rear of the mobile home. During this, time the officers detected the chemical odor coming from a window. Several hours later, after the officers obtained a search warrant, officers found in the home multiple items commonly used to manufacture methamphetime, including blister packs, Coleman fuel, cold packs, liquid fire draino, rubber gloves and cooking vessels (plastic bottles).

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