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State v. Green

Court of Appeals of Ohio, Eighth District

August 29, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
GREGORY L. GREEN DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-557203

ATTORNEY FOR APPELLANT James R. Willis

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Maxwell M. Martin Assistant Prosecuting Attorney

BEFORE: S. Gallagher, P.J., Kilbane, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, PRESIDING JUDGE

(¶ 1} Appellant Gregory Green appeals from his conviction and the denial of a motion to suppress. For the reasons stated herein, we affirm.

(¶2} On December 21, 2011, appellant was indicted on charges of illegal manufacture or cultivation of marijuana in violation of R.C. 2925.04(A), drug trafficking in violation of R.C. 2925.03(A)(2), drug possession in violation of R.C. 2925.11(A), and possessing criminal tools in violation of R.C. 2923.24(A). The first three counts included a one-year firearm specification, and all counts had forfeiture specifications. Appellant entered a plea of not guilty to the charges.

(¶ 3} Appellant filed motions to suppress evidence on January 12, 2012, and March 27, 2012. Following a hearing, the trial court denied the motions. The matter proceeded to a bench trial. The court found appellant guilty of illegal manufacture or cultivation of marijuana with forfeiture specifications, drug possession with forfeiture specifications, and possessing criminal tools with forfeiture specifications. The court found appellant not guilty of drug trafficking. The court sentenced appellant to three years of community control sanctions.

(¶ 4} Appellant filed this appeal, and his sole assignment of error challenges the trial court's decision denying his motion to suppress.

(¶ 5} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8, the Ohio Supreme Court set forth the following review standard for a motion to suppress:

Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the 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. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d539.

(¶ 6} At the hearing on the motion to suppress, it was shown that appellant was arrested on November 7, 2011, at 13917 Woodworth Avenue in Cleveland. On that date, there was an active arrest warrant for appellant. Police arrived at the location after receiving an anonymous tip as to where appellant could be found and confirming with a neighbor that appellant stayed at the subject premises. The police surrounded the house, knocked on the door, and announced themselves.

(¶ 7} Sergeant Sharpe saw a person look out a second-floor window. Detective Riegelmayer, who had a canine, went to the back of the house. The detective smelled a strong odor of marijuana emanating from the house. The canine never alerted him to the presence of narcotics. Detective Riegelmayer testified that because the police were there on an arrest warrant and looking for a person, he had given the canine a command to be alert for a possible bite-order scenario and that the canine was not instructed to look for narcotics. Sergeant Sharpe and Detective Robinson also went to the back of the house and confirmed the smell of marijuana. The smell was described as a "strong odor, " "the very robust smell, " and "a moist smell" of marijuana. Detective Riegelmayer did not issue a subsequent narcotic command to the canine because he believed it was unnecessary because the smell had already been detected by the officers.

(ΒΆ 8} The officers also observed an exterior ventilation system coming from the second floor. Detective Riegelmayer testified that there were two air-conditioning units at the residence and one of them was running. It was 6:30 in the morning and cool outside. He also noted that the shades were drawn or windows were covered. From his experience, he indicated his observations were consistent with a grow house, which he described as a place that is used for the manufacture of a large quantity of marijuana. Detective Robinson also testified to his ...


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