[Cite as State v. Pattin,
2018-Ohio-3876.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-575
v. : (C.P.C. No. 15CR-2289)
Michael Pattin, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 25, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: Yeura R. Venters, Public Defender, and Timothy E.
Pierce, for appellant. Argued: Robert B. Barnhart.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Michael Pattin, appeals from a judgment of the
Franklin County Court of Common Pleas finding appellant guilty, pursuant to a no contest
plea, of one count of illegal cultivation of marijuana in violation of R.C. 2925.04, a felony of
the fourth degree, and sentencing appellant to a period of community control for three
years. For the following reasons, we affirm the trial court's judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant was indicted on May 8, 2015 on a charge of illegal cultivation of
marijuana. On January 27, 2016, appellant's counsel filed a motion to suppress. On
June 15, 2016, the trial court held a hearing on the motion to suppress. The testimony at
the suppression hearing set forth the following facts. On March 15, 2015, Whitehall police
officers, Jeff Goble and Gary Baker, responded to 588 Link Road in Whitehall because
No. 17AP-575 2
someone had telephoned 9-1-1 and the caller immediately hung up. (June 15, 2016
Suppression Hearing Tr. at 9.) Officers routinely respond in those situations to determine
the safety of the occupants. Id. As the officers approached the house, Officer Baker saw a
child look out the window.
Id. The officers knocked on the front door and spoke to appellant
and two children. Appellant denied that anyone in the house called 9-1-1. (Tr. at 10-11.)
Officer Goble testified that all three were acting nervous so he had the dispatcher call the
number back and a landline in the house rang. (Tr. at 11.)
{¶ 3} Officer Goble testified that he detected a strong odor of raw marijuana. He
stated that the smell of raw marijuana was "very powerful" and could be detected all around
the house and became stronger as he approached the house and even stronger when the
front door was opened. (Tr. at 38.) Officer Goble testified he decided to make a "protective
sweep" of the house because of the 9-1-1 call, the nervousness of the appellant and the
children, the odor of the marijuana and his experience with the "extreme violence
associated with drug trafficking and drugs." (Tr. at 11-12.) Officer Goble stated that the
protective sweep was to check for "injured parties or killed parties" and the officers looked
in open spaces where a person could be concealed. (Tr. at 12, 15.) Officer Baker stayed with
appellant and the children while Officer Goble searched the ground floor and the basement
and a third officer, Officer Saylers searched the second floor. The officers found marijuana
plants, harvested marijuana, and grow lights in the basement and the garage. The officers
then telephoned appellant's girlfriend, the owner of the house, who returned home. She
signed a consent form and narcotics detectives searched the house again.
{¶ 4} Appellant testified at the hearing. Appellant testified he was asleep when the
officers arrived. (Tr. at 43.) He showed the home phone to the officers to demonstrate that
no one had called 9-1-1. Id. He was not aware there was a second telephone upstairs. (Tr. at
44.) When appellant asked the children if they had called, they just put their heads down
and did not answer. (Tr. at 45.) Appellant stated that the officers asked if anyone else was
in the house and the children answered that their mother was at Walmart.
Id. Appellant
then stated he walked an officer around the first floor to establish that no one was hurt. As
appellant and this officer were walking up the stairs to look on the second floor, the officer
waved the other police officers inside the house. (Tr. at 46.) Appellant was concerned that
Officer Goble was not one of the officers who came to the door and not the officer he walked
No. 17AP-575 3
around the house. Appellant admitted putting the marijuana plants in the house. (Tr. at
51.)
{¶ 5} On June 16, 2016, the trial court denied appellant's motion to suppress. On
October 11, 2016, appellant, pro se, filed a motion for leave to file a delayed appeal, which
this court dismissed for lack of a final appealable order. On November 17, 2016, appellant
filed a pro se complaint for mandamus and the state filed a motion to dismiss, which this
court granted because appellant had an adequate remedy at law by way of an appeal at the
conclusion of his trial.
{¶ 6} On July 10, 2017, appellant changed his plea from not guilty to no contest.
The trial court found appellant guilty and sentenced him to a period of community control
for three years.
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant filed a timely notice of appeal and raised the following assignment
of error for our review:
The trial court erred when it denied appellant's motion to
suppress.
III. STANDARD OF REVIEW
{¶ 8} "Appellate review of a motion to suppress presents a mixed question of law
and fact." State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8. This court "must
accept the trial court's findings of fact if they are supported by competent, credible
evidence."
Id., citing State v. Fanning,
1 Ohio St.3d 19, 20 (1982). "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."
Id., citing State v. McNamara,
124 Ohio App.3d 706, 710 (4th Dist.1997). Thus,
" '[d]eterminations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.' " Columbus v. Ellyson, 10th Dist. No. 05AP-573,
2006-Ohio-2075, ¶ 4, quoting
Ornelas v. United States,
517 U.S. 690, 699 (1996).
IV. ANALYSIS
A. MOTION TO SUPPRESS
{¶ 9} Appellant contends in his assignment of error that the trial court erred in
denying his motion to suppress. The Fourth Amendment to the United States Constitution
No. 17AP-575 4
as applied to the states through the Fourteenth Amendment, as well as the Ohio
Constitution, Article I, Section 14, prohibits the government from conducting "warrantless
searches and seizures, rendering them per se unreasonable unless an exception applies."
State v. Mendoza, 10th Dist. No. 09AP-645, 2009-Ohio-1182, ¶ 11, citing Katz v. United
States,
389 U.S. 347, 357 (1967), superseded by statute on other grounds.
{¶ 10} There are several exceptions to the Fourth Amendment's warrant
requirement, including one at issue here, the community-caretaking exception, or
sometimes referred to as emergency-aid exception or exigent-circumstance exception.
State v. Dunn, 131 Ohio St.3d 325, 328,
2012-Ohio-1008, ¶ 15. In Dunn, the Supreme Court
of Ohio recognized that police officers are "duty-bound to provide emergency services to
those who are in danger of physical harm." Id. at ¶ 20. Further, "courts recognize that a
community-caretaking/emergency-aid exception to the Fourth Amendment warrant
requirement is necessary to allow police to respond to emergency situations where life or
limb is in jeopardy." Id. at ¶ 21.
{¶ 11} The bounds of an officer's ability to investigate, pursuant to the community-caretaking function, are not limitless. A police officer must possess "objectively reasonable
grounds to believe that there is an immediate need for his or her assistance to protect life
or prevent serious injury to a community-caretaking/emergency-aid stop." Id. at ¶ 26.
However, this court has recognized that "police officers are not required to possess
reasonable suspicion of criminal activity when exercising community caretaking
functions." State v. Weese, 10th Dist. No. 12AP-949, 2013-Ohio-4056, ¶ 13, citing State v.
Chapa, 10th Dist. No. 04AP-66,
2004-Ohio-5070, ¶ 8, citing State v. Norman,
136 Ohio
App.3d 46 (3d Dist.1999).
{¶ 12} The trial court denied the motion to suppress finding, as follows:
Looking at these pictures and the amount of marijuana that
was in the basement, I -- as well as the testimony about being
able to smell the marijuana outside of the house as well as the
testimony that the officers would have gone in regardless after
the 9-1-1 hang-up call and then seeing a child out the window,
in addition to the testimony about the hangup call, the
nervousness, and the odor, I am going to deny the motion to
suppress, because I do think that the police had good reason
to search the house.
No. 17AP-575 5
(Suppression Hearing Tr. at 60-61.)
{¶ 13} Appellant's counsel does not argue that the trial court's relevant factual
findings are not supported by competent, credible evidence, but rather, that these facts do
not satisfy the community-caretaking exception to the warrant requirement. Officer Goble
testified that he searched the house because there was no explanation for the 9-1-1 call even
though the dispatcher confirmed that the call originated from that location. Appellant
denied making the telephone call and the children responded by putting their heads down.
Officer Goble believed they were lying about the telephone call because it originated from
that house. (Tr. at 27-28.) Further, Officer Goble testified that appellant and the children
were acting scared and nervous. (Tr. at 12, 33.) Finally, Officer Goble testified that the odor
of marijuana and his experience with the violence associated with drugs prompted him to
conduct a protective sweep of the house. (Tr. at 12.) Given his experience and the
circumstances, Officer Goble felt it was necessary and his duty to conduct a basic search
and determine no one was injured or in danger at that location. (Tr. at 32.) These
circumstances provide objectively reasonable grounds to believe there was an immediate
need for his assistance. Therefore, we agree with the trial court and find that the officers'
actions were taken as a community caretaker and did not implicate the Fourth Amendment.
"Officers do not need ironclad proof of 'a likely serious, life-threatening' injury to invoke
the emergency aid exception." Michigan v. Fisher, 558 U.S. 45, 49 (2009). Accordingly,
we find the trial court properly denied appellant's motion to suppress and we overrule
appellant's assignment of error.
B. MOTION TO CHALLENGE AND SUPPLEMENT THE RECORD
{¶ 14} After oral argument to this court, appellant filed a pro se motion to challenge
and supplement the record. Appellant filed the motion in response to questions by this
panel. Further, appellant wanted to supplement the record with police reports in an effort
to demonstrate that consent was an issue.
{¶ 15} Pursuant to Crim.R. 11(B)(2), "[t]he plea of no contest is not an admission of
defendant's guilt, but is an admission of the truth of the facts alleged in the indictment,
information, or complaint." A no contest plea is an admission of the facts as presented by
the prosecution. State v. Totten, 10th Dist. No. 05AP-278, 2005-Ohio-6210, ¶ 8, citing
State v. Puterbaugh,
142 Ohio App.3d 185, 190 (4th Dist.2001). Even though a defendant
No. 17AP-575 6
may argue that the facts as admitted do not constitute the offense charged, by pleading no
contest, a defendant waives his right to present additional affirmative factual allegations to
prove he was not guilty. Columbus v. Kiner, 10th Dist. No. 11AP-21,
2011-Ohio-4479, ¶ 9,
quoting State v. Murphy,
116 Ohio App.3d 41, 43 (9th Dist.1996), citing State v. Gilbo,
96
Ohio App.3d 332, 337 (2d Dist.1994). " ' "The essence of the 'no contest' plea, is that the
accused cannot be heard in defense. Thus any statement by him must be considered as in
mitigation of penalty." ' "
Gilbo at 337, quoting State v. Herman,
31 Ohio App.2d 134, 140
(6th Dist.1971), quoting Schneider, Ohio Criminal Code, Section 10.1, fn 4 (3 Ed.1963).
{¶ 16} Thus, appellant cannot supplement the record with the police reports.
However, the factual issues that appellant argues need to be supplemented do not form the
basis of the trial court's decision. The trial court did not determine that appellant provided
consent, but rather, that the facts supported the community-caretaking exception to the
warrant requirement and the police officers could conduct a protective search. We agree.
Thus, we need not consider any other arguments and appellant's motion to challenge and
supplement the record is denied.
V. CONCLUSION
{¶ 17} For the foregoing reasons, we overrule appellant's assignment of error, deny
appellant's motion to challenge and supplement the record, and affirm the judgment of the
Franklin County Court of Common Pleas.
Motion denied; judgment affirmed.
TYACK and BRUNNER, JJ., concur.
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