State v. Bays
| Decision Date | 13 June 2011 |
| Docket Number | Case No. 10-CA-42 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. LARRY E. BAYS Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
For Plaintiff-Appellee:
{¶1} Defendant-Appellant, Larry Bays, appeals the judgment of the Ashland County Municipal Court, convicting him of one count of cultivation of marijuana, a misdemeanor of the first degree. The State of Ohio is Plaintiff-Appellee.
{¶2} On February 11, 2009, Evelyn Bays, wife of Appellant, signed a parole agreement indicating that she agreed to be subject to a warrantless search of her residence, person, and property at any time while she was on parole. Specifically, the terms that she agreed to stated:
{¶3} "I agree to a search without warrant of my person, my motor vehicle, or my place of residence by a supervising officer or other authorized representative of the Department of Rehabilitation and Correction at any time. * * *
{¶4} "Notice pursuant to section 2959.131 of the Revised Code, officers of the Adult Parole Authority may conduct warrantless searches of your person, your place of residence, your personal property, or any other property of which you have been given permission to use if they have reasonable grounds to believe that you are not abiding by the law or terms and conditions of your supervision."
{¶5} Michelle Flaherty, an Adult Parole Authority officer ("APA"), supervised Evelyn Bays. She accepted supervision of Evelyn because both Evelyn and Appellant agreed to the above terms of supervision. Flaherty stated that these terms were explained verbally to both Evelyn and Appellant and that a written copy of these instructions was given to Evelyn.
{¶6} Officer Flaherty received information from an informant who was a former employee of Appellant's tobacco shop that was connected to the Bays' residence, thatAppellant was growing marijuana in the basement of the Bays' residence. The informant told Flaherty that Appellant told him that he was growing the marijuana in his basement.
{¶7} Based upon the information received, Officer Flaherty and Officer Kimberly Marcelli went to the Bays' residence, where they advised both Evelyn and Appellant that they were going to look around. Evelyn stated that it was fine for them to look around and Appellant did not make any statement to the contrary, nor did he state that the officers could not look around.
{¶8} The officers observed a lock on the door to the basement. Evelyn and Appellant told differing stories as to why there was a padlock on the door. Initially, both Evelyn and Appellant stated that the landlord had placed the lock on the basement and that they did not have access to the basement. They were unable, however, to provide the landlord's name or contact information. Subsequently, Appellant told the officers that he sprayed for bugs in the basement and that was why there was a lock on the basement.
{¶9} Evelyn then stated that she did not go into the basement because she was scared of it; however, she admitted to having possessions and canned food stored in the basement. Appellant stated that Evelyn did not go into the basement, but Evelyn eventually testified at the suppression hearing that she did not go into the basement because she was afraid of it.
{¶10} The APA officers contacted the Ashland County Sheriff's Department, who dispatched a deputy to remove the lock. The officers then observed a marijuana growing operation in the basement.
{¶11} Appellant was asked several questions at the Bays' residence by Ashland County Sheriff Lieutenant Scott Smart. Appellant was pacing around the house and also walked outside of the house after being instructed to stay in a particular area of the home. He admitted that the marijuana in the basement was his. At the time he made this statement, he had not been read his Miranda warnings; however, he was never arrested on the date in question.
{¶12} Officer Flaherty testified that Appellant was not placed into custody, but that he was told not to leave for officer safety reasons. Appellant was never handcuffed. The officers did find the key to the padlock beside a loaded gun that was next to a place that Appellant kept going to stand beside while the officers searched the residence.
{¶13} Two complaints were filed against Appellant, charging him with one count of possession of marijuana, in violation of R.C. 2925.11(A), and one count of cultivation of marijuana, in violation of R.C. 2925.04(A). Appellant pled not guilty to both charges.
{¶14} A motion to suppress was filed on behalf of Appellant and a hearing was held, wherein Appellant argued that he did not specifically grant consent for the officers to search the residence, even though his wife did; and the officers' questioning of Appellant was tantamount to a custodial interrogation.
{¶15} The trial court denied Appellant's motion on November 18, 2010, finding that pursuant to State v. Benton (1998), 82 Ohio St.3d 316, 695 N.E.2d 757, and R.C. 2967.131(C), the warrantless search of the Bays' residence was proper, and that the interaction between the officers and Appellant was not custodial.
{¶16} On November 29, 2010, Appellant entered a change of plea, and pled no contest to the charge of cultivation of marijuana, a misdemeanor of the first degree. The possession of marijuana charge was dismissed. The court found Appellant guilty of the cultivation charge and sentenced him to thirty days in jail with fifteen days suspended.
{¶17} Appellant now appeals and raises two Assignments of Error:
{¶18} "I. THE ASHLAND MUNICIPAL COURT ERRED BY NOT SUPPRESSING THE EVIDENCE GATHERED AS A RESULT OF THE UNCONSTITUTIONAL SEARCH OF APPELLANT'S RESIDENCE, BECAUSE SAID SEARCH WAS CONDUCTED WITHOUT A WARRANT AND WITHOUT HIS CONSENT, IN VIOLATION OF APPELLANT'S FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES.
{¶19}
{¶20} In his first assignment of error, Appellant argues that the trial court erred by failing to suppress evidence gathered as a result of the search of his residence. We disagree.
{¶21} Appellate review of a trial court's decision to deny a motion to suppress involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d 142, 675 N.E.2d 1268. Accepting these facts as true, the appellate court must independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court's decision meets the applicable legal standard. State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.
{¶22} There are three methods of challenging a trial court's ruling on a motion to suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In reviewing a challenge of this nature, an appellate court must determine whether the trial court's findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 Ohio B. 57, 437 N.E.2d 583; and State v. Klein (1991), 73 Ohio App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issues raised in a motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whetherthe facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d 623, 620 N.E.2d 906.
{¶23} The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures, rendering them per se unreasonable unless an exception applies. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507. An investigative stop, or Terry stop, is a common exception to the Fourth Amendment warrant requirement. Terry v. Ohio (1968), 391 U.S. 1, 88 S.Ct. 1503. Because the "balance between the public interest and the individual's right to personal security," United States v. Brignoni-Ponce (1975), 422 U.S. 873, 878, 95 S.Ct. 2574, tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity "may be afoot." United States v. Sokolow (1989), 490 U.S. 1, 7, 109 S.Ct. 1581 (quoting Terry, supra, at 30). In Terry, the Supreme Court held that a police officer may stop an individual if the officer has a reasonable suspicion based upon specific and articulable facts that criminal behavior has occurred or is imminent. See, also, State v. Chatton (1984), 11 Ohio St.3d 59,...
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