State v. Brown

Decision Date02 November 2020
Docket NumberCASE NO. 2020-L-003,CASE NO. 2020-L-002
Citation2020 Ohio 5140
PartiesSTATE OF OHIO, LAKE COUNTY HUMANE SOCIETY, Plaintiff-Appellee, v. TOM BROWN, et al., Defendants-Appellants.
CourtOhio Court of Appeals
OPINION

Criminal Appeals from the Painesville Municipal Court, Case Nos. 2017 CRB 00318 and 2017 CRB 00319.

Judgment: Affirmed.

J. Jeffrey Holland, Holland and Muirden, 1343 Sharon-Copley Road, P.O. Box 345, Sharon Center, Ohio 44274 (For Plaintiff-Appellee).

Michela J. Huth, P.O. Box 17, Bolivar, Ohio 44612 (For Defendants-Appellants).

THOMAS R. WRIGHT, J.

{¶1} Appellants, Tom Brown and Judith Brown, appeal the decision denying their motion to suppress and finding them in violation of community control. We affirm.

{¶2} Tom and Judith Brown are the owners of Caroline's Kids Pet Rescue, a cat rescue shelter in Concord, Ohio. In 2018, we affirmed their 24 convictions of cruelty against companion animals. State v. Wolford-Lee, 11th Dist. Lake No. 2017-L-122, 2018-Ohio-5064, appeal not allowed, 155 Ohio St.3d 1421, 2019-Ohio-1421, 120 N.E.3d 868. They were both sentenced to 90 days on each count, suspended; fined $500 on each count, suspended; and ordered to serve 36 months of community control.

{¶3} After an inspection in September 2019, appellee, the Lake County Humane Society (LCHS), alleged the Browns had three community control violations. The Browns moved to suppress all evidence from the inspection. The trial court overruled the motion to suppress and found the Browns committed three community control violations. The trial court did not revoke their community control but extended the length to five years and imposed stricter terms.

{¶4} The Browns raise five assignments of error, which we address out of order. Their second and third assignments assert:

{¶5} "[2] The Trial Court abused its discretion when it denied Appellants' Motion to Suppress the evidence.

{¶6} "[3] Lake Humane Society violated Appellant's Fourth Amendment rights when it entered the front door of Caroline's Kids."

{¶7} The Browns first allege that the LCHS lacked reasonable articulable suspicion to conduct a search of the shelter, and as such, suppression was warranted. Second, they contend that even if LCHS had consent to enter, their initial entry into the vestibule of the structure nevertheless violated their Fourth Amendment rights because the LCHS did not have permission to enter this part of the building. We disagree with both arguments.

{¶8} The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." Fourth Amendment, United StatesConstitution. The Ohio Constitution likewise protects against arbitrary government invasions. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). The touchstone of both is reasonableness. State v. Michael, 2013-Ohio-3889, 995 N.E.2d 286, ¶ 10 (10th Dist.).

{¶9} "'[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.'" (Footnote omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶10} "When a defendant moves to suppress evidence recovered during a warrantless search, the state has the burden of showing that the search fits within one of the defined exceptions to the Fourth Amendment's warrant requirement. Athens v. Wolf, 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974)." State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 17-18.

{¶11} "A search based on consent is one exception to the Fourth Amendment's general warrant requirement. State v. Robinette, 80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997). When the state seeks to rely upon consent to justify a search, it has the burden of establishing that the consent was voluntary and freely given. Id. 'The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?' (Citations omitted.) Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)." State v. Ferrell, 91 N.E.3d 766, ¶ 12-13 (11th Dist.).

{¶12} "[V]alid consent can be given by one other than a defendant if the third party granting such consent possessed common authority over or other sufficient relationship to the premises sought to be searched." State v. Gibson, 164 Ohio App.3d 558, 2005-Ohio-6380, 843 N.E.2d 224, ¶ 16 (4th Dist.), citing U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

{¶13} Moreover, when consent to a search is given, probable cause to conduct a search is not required. State v. Crawford, 14 Ohio App.2d 41, 43, 236 N.E.2d 214, 215 (1st Dist.1968); State v. Gibson, 164 Ohio App.3d 558, 2005-Ohio-6380, 843 N.E.2d 224, ¶ 16 (4th Dist.), citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

{¶14} Appellate courts review rulings on a motion to suppress under a mixed standard of review. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "[T]he trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." Id. We must accept the trial court's findings of fact if they are supported by competent, credible evidence, and then independently decide whether those facts satisfy the applicable legal standards without deference to the trial court's decision. Id.

{¶15} Here, the Browns' terms of community control authorized random inspections of animal shelters owned and operated by them by a veterinarian agreed upon in advance by both parties. The parties disagree as to whether there was an agreed upon veterinarian authorized to inspect in September 2019.

{¶16} Megan Newkirk, a veterinarian assistant, testified for LCHS. Newkirk is an employee of LCHS and was present during the September 3, 2019 inspection of theshelter referred to as Caroline's Kids. Newkirk and Dr. Amy Wolfgang, a veterinarian, arrived at the shelter to conduct the inspection.

{¶17} Newkirk recalled that the shelter has an outside door and an inside door. She said she knocked on the outside door before entering. Virginia Lee answered the door. Newkirk told Lee that they were there for a random inspection. Lee let Newkirk and Wolfgang inside. Newkirk knew Lee and believed she had the authority to let them inside because Lee "helped run the place."

{¶18} Newkirk relayed the following on direct:

{¶19} "A. She [Lee] opened the door when we all arrived and said she was going to call Judie [the owner]. So we said okay and gave her five minutes, and then we re-knocked and she opened the door, and we went in.

{¶20} "* * *

{¶21} "Q. Did she step aside to allow you in?

{¶22} "A. Yes.

{¶23} "Q. Did she step aside and make room for you to get in?

{¶24} "A. Yes.

{¶25} "Q. Did you feel that you were invited in at that point?

{¶26} "A. Yes."

{¶27} There was no objection to Newkirk and Wolfgang entering on the day of the inspection. Once inside, however, Lee relayed that there was an issue with Wolfgang being there. While inside, the LCHS attorney told Newkirk that Wolfgang was not supposed to be there, so Wolfgang left. Newkirk was not asked to leave.

{¶28} On cross-examination Newkirk explained that she thought Wolfgang was an approved veterinarian under the Browns' probation terms because Wolfgang was on the property and involved with inspecting it in 2018 without dispute by the Browns.

{¶29} During a prior inspection in 2018, Newkirk recalls finding several violations, including the Browns caring for too many animals in excess of the terms of their community control. There were 110 animals in the structure in 2018, but LCHS did not pursue a violation in 2018 because the parties worked together to resolve the issues. LCHS took several of the sick animals and provided educational resources to the Browns to aid them in caring for the animals.

{¶30} Danamarie Pannella, an attorney for LCHS, also testified. On the day of the September 2019 inspection, the Browns' attorney contacted her and was objecting to Wolfgang's presence at the shelter because the Browns do not trust her. The two attorneys agreed that Wolfgang would leave and the remaining LCHS representatives could stay. Pannella recalls that the Browns' lawyer instructed her not to count the cats located in the front room because these cats were in a room leased to another entity called Purrfect Partners. Pannella advised the Browns' lawyer that it is the court's decision whether these cats would be counted for community control violation purposes.

{¶31} The defense called Cassandra Hatch, a LCHS humane agent-in-training. Hatch testified that she was with Newkirk and Wolfgang on the date of the inspection and that they knocked on the outer door first, but there was no answer. They then entered the vestibule and rang the doorbell that was adjacent to the inner door. Hatch said the doorbell is visible from the outside of the building, and she recalls seeing a sign advising visitors to use the doorbell.

{¶32} Virginia Lee, a shelter volunteer, testified that she was present during the September 3, 2019 inspection, and she does not recall the LCHS representatives knocking on the outside door before they entered the vestibule. When Lee answered the door, they told her they "needed to come in and inspect the cats."

{¶33} The trial court overruled the motion to suppress finding that the search complied with the terms of the Browns' probation order and alternatively that the search was consensual.

{¶34} "'The standard for measuring the scope of * * *...

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