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State v. Head

Court of Appeals of Ohio, Fifth District, Stark

September 6, 2017

STATE OF OHIO Plaintiff-Appellee
v.
JAY EVERETT HEAD Defendant-Appellant

         Appeal from the Stark County Court of Common Pleas, Case No. 2016CR0952

          For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section

          For Defendant-Appellant KRISTINA R. POWERS Stark County Public Defender's Office

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, J.

         {¶1} Defendant-appellant Jay Everett Head appeals the denial by the Stark County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On June 30, 2016, the Stark County Grand Jury indicted appellant on one count of illegal manufacture of drugs in violation of R.C. 2925.04(A)(C)(3), a felony of the second degree, and one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041 (A), a felony of the third degree. At his arraignment on August 19, 2016, appellant entered a plea of not guilty to the charges.

         {¶3} Appellant, on September 7, 2016, filed a Motion to Suppress, seeking to suppress any evidence found as a result of the alleged illegal search of his home. A hearing on the motion was held on October 13, 2016.

         {¶4} At the hearing, Officer Brian Duman of the Uniontown Police Department testified that he was in uniform in a cruiser on May 15, 2016 at approximately 3:30 a.m. when he received a call that sent him to 2488 Edison Street Northwest in Uniontown. The Police Department had received a call from a couple of neighbors saying that they had observed multiple subjects with flashlights inside the home, which they indicated was vacant because the current owner was deceased. Chief Britt, who arrived at the house seconds after the call, arrived at the house about a minute before Officer Duman. They also called for an additional unit from Hartville.

         {¶5} Officer Duman testified that when he arrived, Chief Britt was attempting to get appellant, who appeared in the kitchen window, to leave the house. He testified that appellant walked outside through a side door and was detained until the Hartville unit arrived. During such time, appellant was asked if anyone else was in the house and told the officers that there might be. According to Officer Duman, Chief Britt and an officer from the Hartville Police Department then went inside to do a protective sweep in an attempt to locate additional subjects in the house. Appellant told Officer Duman that someone might be in the attic and the attic was checked and found to be empty. While checking the basement, both officers identified a possible methamphetamine laboratory that was either functioning or in the process of being fully assembled. The house had electricity and at least partially functioning plumbing. No other individuals were located inside the house.

         {¶6} When asked if appellant had told any of the officers that they could not go inside the house to look for the additional suspects, Officer Duman indicated that appellant had not. He testified that because the house was in such poor condition, it would have been very difficult to determine if there was any forced entry. He did not recall appellant having a key to the house on him. The following testimony was adduced when Officer Duman was asked if there was any indication that the house was appellant's house:

         {¶7} A: He had the address for that home on his driver's license; however, he hadn't occupied it in several years as far as I'm aware. I had never seen him at that home personally. I was aware of the fact that the owner of the home had passed away and that there was some sort of civil proceeding involving the state of that home, but I didn't know anything further at the time. It just was a vacant home as far as I was concerned in my normal patrol duties.

         {¶8} Q: Explain to me ...


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