State v. Hale ( 2017 )

[Cite as State v. Hale, 2017-Ohio-7048.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28334
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TERRY WADE HALE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015 05 1532 (B)
DECISION AND JOURNAL ENTRY
Dated: August 2, 2017
TEODOSIO, Judge.
{¶1} Appellant, Terry Wade Hale, appeals from his convictions in the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} The National Precursor Log Exchange (“NPLEx”) is an “electronic system for
tracking sales of pseudoephedrine products and ephedrine products on a national basis * * *.”
R.C. 3715.05(A)(6). While monitoring the NPLEx live-time feed, a Brimfield police officer saw
that Ms. Lisa Herczec had just purchased products containing pseudoephedrine from the
Brimfield Walmart. The officer went to the store’s parking lot and watched Ms. Herczec exit the
store and join another man, later identified as R.S., by a vehicle that appeared to be broken down.
Ms. Herczec’s NPLEx purchase history showed that she had been purchasing a lot of
pseudoephedrine and that she associated with Mr. Hale, who had prior methamphetamine-related
activity. Mr. Hale also had an active warrant for his arrest.
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{¶3} Mr. Hale soon appeared at the broken-down vehicle. Another officer arrived and
both officers approached the group together. They detained Mr. Hale on his outstanding warrant.
Ms. Herczec initially told the officers that she bought the pseudoephedrine for her allergies, but
later admitted that she bought it for Mr. Hale and said that he was manufacturing
methamphetamine at his house in Akron. She provided the officers with Mr. Hale’s address and
they notified Akron police. The agency with the active warrant eventually informed Brimfield
police that it did not want to pick up Mr. Hale on the warrant, so all three individuals were
released and they waited for a ride in the Walmart parking lot.
{¶4} Meanwhile, based on the information from Brimfield police, Akron police
officers investigated and discovered an active methamphetamine lab at Mr. Hale’s residence.
Akron police then asked Brimfield police to arrest Mr. Hale and Ms. Herczec. Upon execution
of a search warrant for the residence, officers discovered many items related to the manufacture
of methamphetamine.
{¶5} Mr. Hale was indicted on multiple drug-related charges. He filed a motion to
suppress and the trial court held a hearing over the span of two days. The court denied the
motion. After a jury trial, Mr. Hale was found guilty of illegal manufacture of drugs, illegal
assembly or possession of chemicals for the manufacture of drugs, aggravated possession of
drugs, and illegal use or possession of drug paraphernalia. The illegal manufacturing and illegal
assembly offenses were merged for sentencing and Mr. Hale was sentenced to a total of nine
years in prison.
{¶6} Mr. Hale now appeals from his convictions and raises one assignment of error for
this Court’s review.
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II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
APPELLANT’S MOTION TO SUPPRESS.
{¶7} In his sole assignment of error, Mr. Hale argues that the trial court erred in
denying his motion to suppress. We disagree.
{¶8} 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. Consequently, an appellate court must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.
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. Oberholtz, 9th Dist. Summit No. 27972, 2016-Ohio-8506, ¶ 5, quoting State v. Burnside,
100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶9} The Fourth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated * * *.” Article I, Section 14, of the Ohio Constitution contains nearly identical
language. “For a search or seizure to be reasonable under the Fourth Amendment, it must be
based upon probable cause and executed pursuant to a warrant, unless an exception to the
warrant requirement applies.” State v. Hetrick, 9th Dist. Lorain No. 07CA009231, 2008-Ohio-
1455, ¶ 19, citing Katz v. U.S., 389 U.S. 347, 357 (1967). “One well-delineated exception to the
warrant requirement occurs where police officers perform an investigatory stop based on their
reasonable suspicion that criminal activity is afoot.” State v. Jackson, 9th Dist. Lorain No.
14CA010555, 2015-Ohio-2473, ¶ 13, citing Terry v. Ohio, 392 U.S. 1, 21 (1968).
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{¶10} Mr. Hale argues that the Brimfield officers did not have reasonable suspicion,
based on specific, articulable facts, that criminal activity was afoot to: (1) justify going to the
Walmart parking lot to investigate Ms. Herczec’s purchase of pseudoephedrine; (2) question Ms.
Herczec or R.S. about the pseudoephedrine purchase; or (3) detain or Mirandize Ms. Herczec.
See Miranda v. Arizona, 384 U.S. 436 (1966). He argues that the testimony of several officers at
the suppression hearing indicated that they “acted without any objective justification, and on
nothing more than an ‘inchoate suspicion’ or a ‘hunch’ of criminal activity.”
{¶11} We first note that Mr. Hale did not raise the above issues in his motion to
suppress or at the suppression hearing and he may not now argue them for the first time on
appeal. See State v. Nestor, 9th Dist. Summit No. 27800, 2016-Ohio-1333, ¶ 18. Mr. Hale
argued at the trial court level that his warrantless arrest was unreasonable per se. At the hearing,
he relied on Heston and argued that a warrantless arrest is only valid “where the arresting officer
has probable cause to believe that a felony was committed by [the] defendant and the
circumstances are such as to make it impracticable to secure a warrant.” (Emphasis added.)
State v. Heston, 29 Ohio St.2d 152 (1972), at paragraph two of the syllabus. Mr. Hale’s
contention was that since the police had time to secure a search warrant for the house, they
should have also secured an arrest warrant for him, and that the State subsequently failed to show
that it was impracticable to obtain an arrest warrant.
{¶12} Furthermore, Mr. Hale’s new arguments concern the constitutional rights of third
parties. “Fourth Amendment rights are personal in nature and may not be vicariously asserted by
others.” State v. Dennis, 79 Ohio St.3d 421, 426 (1997). It has been well-established that:
[S]uppression of the product of a Fourth Amendment violation can be
successfully urged only by those whose rights were violated * * *, not by those
who are aggrieved solely by the introduction of damaging evidence.
Coconspirators and codefendants have been accorded no special standing.
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Alderman v. United States, 394 U.S. 165, 171-172 (1969).
{¶13} Accordingly, we will not address the merits of Mr. Hale’s new arguments
concerning the investigating, questioning, or detaining of Ms. Herczec or R.S., which have been
raised for the first time on appeal.
{¶14} Mr. Hale’s sole assignment of error is overruled.
III.
{¶15} Mr. Hale’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
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HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.