State v. Craw , 2018 Ohio 1769 ( 2018 )

[Cite as State v. Craw, 2018-Ohio-1769.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-17-09
v.
RICHARD C. CRAW, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 14-CRM-139
Judgment Affirmed
Date of Decision: May 7, 2018
APPEARANCES:
Michael J. Short for Appellant
Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-17-09
PRESTON, J.
{¶1} Defendant-appellant, Richard C. Craw (“Craw”), appeals the
September 5, 2017 judgment entry of sentence of the Mercer County Court of
Common Pleas. He argues that the trial court erred in denying his motions to
suppress. For the reasons that follow, we affirm.
{¶2} This case stems from the execution of a search warrant issued, in part,
for a travel trailer owned by Craw following an investigation of Craw’s ties to and
involvement in the production of methamphetamine. The search warrant, executed
on September 18, 2014, yielded physical evidence of methamphetamine possession
and manufacturing. On October 17, 2014, the Mercer County Grand Jury indicted
Craw on three counts: Count One of illegal manufacture of drugs in violation of
R.C. 2925.04(A), (C)(3)(a), a second-degree felony; Count Two of illegal assembly
or possession of chemicals for the manufacture of drugs in violation of R.C.
2925.041(A), (C), a third-degree felony; and Count Three of aggravated possession
of drugs in violation of R.C. 2925.11(A), (C)(1)(e), a first-degree felony, with a
major drug offender specification under R.C. 2941.1410(A). (Doc. No. 5). Craw
initially pleaded not guilty to the charges and the specification on October 27, 2014.
(See Doc. No. 27). (See also Oct. 27, 2014 Tr. at 4).
{¶3} On June 29, 2015, Craw filed a motion to suppress the physical
evidence seized under the search warrant as well as the statements he made to law
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enforcement officers during the execution of the search warrant. (Doc. No. 71).
Craw argued that the search warrant was not supported by probable cause and did
not specify the places to be searched and the items to be seized with sufficient
particularity. (Id.). Craw sought to suppress his statements on grounds that the
statements were made before he was informed of his Miranda rights. (Id.).
{¶4} After an August 28, 2015 hearing, the trial court denied Craw’s motion
to suppress evidence on October 15, 2015. (Doc. No. 87).
{¶5} On January 19, 2016, Craw, through his attorney, filed a motion
requesting that the trial court reconsider its judgment denying Craw’s motion to
suppress evidence and issue findings of fact and conclusions of law. (Doc. No. 113).
On February 25, 2016, Craw, pro se, filed a separate motion for reconsideration.
(Doc. No. 122).
{¶6} On September 12, 2016, the State filed a memorandum in opposition to
the motions for reconsideration. (Doc. No. 161). On September 22, 2016, Craw,
pro se, filed his response to the State’s memorandum in opposition to the motions
for reconsideration. (Doc. No. 168).1
{¶7} On December 2, 2016, the trial court denied Craw’s motions for
reconsideration. (Doc. Nos. 188, 194).
1
Craw was represented by counsel until September 2016. Craw eventually executed a waiver of counsel
form on September 14, 2016 and represented himself until a change of plea hearing in July 2017. (See Doc.
Nos. 163, 340). At that time, Craw’s standby counsel resumed his representation of Craw.
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{¶8} On July 3, 2017, Craw filed a motion with the trial court which the trial
court treated as a renewed motion to suppress evidence. (Doc. No. 324). The trial
court denied Craw’s renewed motion later that day, adopting the entirety of its
October 15, 2015 judgment entry. (Doc. No. 326).
{¶9} On July 27, 2017, pursuant to a negotiated plea agreement, Craw
entered no contest pleas to Counts One and Two. (Doc. No. 340). The trial court
convicted Craw of those two charges and dismissed Count Three and the
specification. (Doc. No. 346).
{¶10} On September 5, 2017, the trial court sentenced Craw to four years’
incarceration on count one and 36 months’ incarceration on Count Two for an
aggregate term of seven years’ imprisonment. (Doc. No. 361).
{¶11} On September 12, 2017, Craw filed a notice of appeal. (Doc. No. 376).
He raises three assignments of error, which we address together.
Assignment of Error No. I
The search warrant was not supported by probable cause.
Assignment of Error No. II
The search warrant was overbroad.
Assignment of Error No. III
The Defendant’s statements were made without the required
Miranda warnings.
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{¶12} Each of Craw’s three assignments of error maintains that the trial court
erred in denying his motions to suppress. Accordingly, this court will assess each
of Craw’s assignments of error under the same standard of review.
{¶13} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as
such, is in the best position to evaluate the evidence and the credibility of witnesses.
Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a
ruling on a motion to suppress, “an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence.” Burnside at
¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s
conclusions of law, however, our standard of review is de novo, and we must
independently determine whether the facts satisfy the applicable legal standard. Id.,citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
{¶14} In his first assignment of error, Craw argues that the trial court erred
in denying his motions to suppress because the search warrant is not supported by
probable cause. Specifically, Craw argues that the information set forth in the
affidavit relied on by the issuing authority in granting the search warrant is not
sufficient to support a finding of probable cause.
{¶15} The Fourth Amendment to the United States Constitution provides:
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The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
The probable-cause requirement is “[c]entral to the Fourth Amendment.” State v.
Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 34. “A neutral and detached
judge or magistrate may issue a search warrant only upon the finding of probable
cause.” State v. Young, 146 Ohio App.3d 245, 253-254 (11th Dist.2001), citing
United States v. Leon, 468 U.S. 897, 916 (1984). “Probable cause ‘means less than
evidence which would justify condemnation,’ so that only the ‘probability, and not
a prima facie showing of criminal activity is the standard of probable cause.’” State
v. Gonzales, 3d Dist. Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18,
quoting State v. George, 45 Ohio St.3d 325, 329 (1989).
In determining the sufficiency of probable cause in an affidavit
submitted in support of a search warrant, “[t]he task of the issuing
[authority] is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before
him, including the ‘veracity’ and ‘basis of knowledge’ of persons
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supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”
George at paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213,
238-239 (1983). In other words, the issuing authority must examine the “totality-
of-the-circumstances” in determining whether probable cause exists to issue a
search warrant. Id. at 329, citing Gates at 238-239.
{¶16} “When reviewing the sufficiency of an affidavit in support of a search
warrant, both the trial court and the appellate court are limited to the information
that was ‘brought to the attention of the [issuing authority].’” State v. Garza, 3d
Dist. Henry No. 7-13-04, 2013-Ohio-5492, ¶ 10, quoting State v. Graddy, 55 Ohio
St.2d 132, 134 (1978), fn. 1. Frequently, “the reviewing court is bound by the ‘four
corners’ of the affidavit, as that is often the only record available before it.” Id.,citing State v. OK Sun Bean, 13 Ohio App.3d 69, 71 (6th Dist.1983). In reviewing
an issuing authority’s determination of probable cause, an appellate court’s duty is
not to “conduct[] a de novo determination as to whether the affidavit contains
sufficient probable cause upon which that court would issue the search warrant” but
rather to “ensure that the [issuing authority] had a substantial basis for concluding
that probable cause existed.” George at paragraph two of the syllabus, citing Gates.
“In conducting any after-the-fact scrutiny of an affidavit submitted in support of a
search warrant, trial and appellate courts should accord great deference to the
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[issuing authority’s] determination of probable cause, and doubtful or marginal
cases in this area should be resolved in favor of upholding the warrant.” Id., citing
Gates.
{¶17} In this case, the issuing authority had a substantial basis for concluding
that probable cause existed to issue the search warrant. Investigator John Barker
(“Barker”) of the Grand Lake Task Force swore to the affidavit supporting the
search-warrant application. (See State’s Ex. 1). In the affidavit, Barker stated that
he had conducted intermittent surveillance on Craw for approximately three months
prior to September 18, 2014. (Id. at 2). Barker further noted in the affidavit that
during this period of surveillance, he routinely observed that Craw was visited at his
residence by several individuals who regularly appeared on the Ohio Pharmacy
Board’s “Meth Check” system—a database that tracks purchases of
pseudoephedrine, a substance commonly used to manufacture methamphetamine.
(Id.). Additionally, Barker indicated in the affidavit that when he searched the
“Meth Check” system, Craw was shown as having purchased pseudoephedrine
approximately every 10 to 14 days throughout 2014. (Id.). In the affidavit, Barker
also averred that he received a report from a manager at a Menards home
improvement store in Celina, Ohio to the effect that Craw had been purchasing large
amounts of lye, a substance required for the production of methamphetamine. (Id.).
Barker stated that, in early August 2014, he identified Craw in security camera video
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footage that the Menards manager had indicated was associated with the large lye
purchases. (Id.).
{¶18} Further, Barker stated that on September 18, 2014, a confidential
informant told him that Craw had assembled the necessary ingredients for the
manufacture of methamphetamine and that Craw would be “cooking”
methamphetamine in a camper west of Celina, Ohio that same evening. (Id. at 2-
3). Barker noted that the confidential informant was a person known to him who
had previously provided reliable, independently corroborated information. (Id. at
2).
{¶19} In the affidavit, Barker averred that, from his period of surveillance on
Craw, he knew that a vehicle operated by Craw was “frequently at [a] property
located at 2521 Mud Pike [Road], Celina, Ohio.” (Id. at 3). Barker further stated
in the affidavit that, at 5:20 p.m. on September 18, 2014, he conducted surveillance
at the Mud Pike property and saw a tan travel trailer with a brown stripe parked
north of the residence. (Id.). Barker noted that he observed four to five people
going to and from the tan travel trailer. (Id.). Barker averred that a box fan was
positioned in the open door to the travel trailer and that the ambient temperature at
the time he observed the box fan was approximately 70 degrees Fahrenheit. (Id.).
Barker stated that from his training and experience, it is common to ventilate a
methamphetamine “cook” because of the toxicity of the fumes. (Id.).
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{¶20} We find that, based on the totality of the circumstances detailed in
Barker’s affidavit, the issuing authority had a substantial basis to conclude that
probable cause existed to issue the search warrant and that evidence of
methamphetamine possession, methamphetamine manufacturing, and illegal
assembly of materials used to manufacture methamphetamine would likely be
discovered in Craw’s travel trailer.
{¶21} On the day that Barker applied for the search warrant, he received
information from an identifiable, reliable confidential informant that Craw had
amassed the materials necessary to manufacture methamphetamine and that he
would be “cooking” methamphetamine in a trailer west of Celina that evening. See
State v. Young, 12th Dist. Clermont No. CA2005-08-074, 2006-Ohio-1784, ¶ 25.
Barker’s earlier surveillance and investigation of Craw and his associates served to
corroborate much of the informant’s tip. From his investigation, Barker learned that
Craw habitually purchased pseudoephedrine. See State v. Kithcart, 5th Dist.
Ashland No. 12-COA-048, 2013-Ohio-3022, ¶ 11; State v. Gipson, 3d Dist.
Hancock No. 5-09-19, 2009-Ohio-6234, ¶ 21-23. Additionally, Barker discovered
that Craw frequently associated with people who appeared on the “Meth Check”
system. See Young at ¶ 24-25. Barker’s investigation also revealed that Craw had
acquired a large quantity of lye, another chemical used to produce
methamphetamine. See State v. Golubov, 9th Dist. Wayne No. 05CA0019, 2005-
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Ohio-4938, ¶ 15-22 (suggesting that information that Golubov had tried to purchase
anhydrous ammonia, a chemical used to manufacture methamphetamine, could be
properly considered in establishing probable cause to issue a search warrant).
{¶22} Furthermore, from his investigation, Barker knew that a vehicle
operated by Craw was often parked at a property west of Celina. After Barker
received the informant’s tip, he drove to the property, where he observed multiple
people moving in and out of the travel trailer. He also observed a box fan operating
in the open door of the travel trailer and, based on his experience and training, he
stated that the fan was consistent with the ventilation required for methamphetamine
labs. See State v. Ash, 4th Dist. Pickaway No. 15CA1, 2015-Ohio-4974, ¶ 2, fn. 1
(noting that the use of a box fan for ventilation is consistent with the operation of a
methamphetamine lab). In sum, based on the totality of the circumstances conveyed
in the affidavit, we find that the issuing authority had a substantial basis for
concluding that there was probable cause to issue a warrant to search the travel
trailer.
{¶23} Craw’s arguments to the contrary are unpersuasive. Craw argues that
the affidavit was insufficient to support a finding that there was probable cause to
search his trailer because Barker could not produce statements or video evidence
from Menards to support his averment in the affidavit that he learned of Craw’s lye
purchases from a Menards manager. Craw also argues that the information
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regarding the lye purchases could not support a finding of probable cause because
the affidavit does not indicate when Barker received the information other than that
it was “previously” provided to him. Finally, Craw argues that the mere fact that
someone purchases cold medicine and associates with people who purchase cold
medicine does not support a finding of probable cause. It may be true that any one
of the averments to which Craw objects, taken in isolation, would not support a
finding of probable cause. Ideally, Barker’s affidavit would have laid out the dates
and quantities of Craw’s lye purchases with a greater degree of specificity, and
Barker would have supplied the issuing authority with some documentary evidence
corroborating the Menards manager’s report concerning Craw’s lye purchases.
Craw is also correct that purchasing cold medicine and associating with people who
purchase cold medicine are not inherently criminal. However, the existence of
probable cause hinges on whether a consideration of a totality of the circumstances,
taken together, leads to a conclusion by the issuing magistrate that there is a fair
probability that contraband or evidence of a crime will be found in a particular place,
not whether any one of those circumstances would independently support that
conclusion. See Young at ¶ 26 (“‘Probable cause is the sum total of layers of
information * * *. We weigh not individual layers but the “laminated” total.’”),
quoting United States v. Nigro, 727 F.2d 100, 104 (6th Cir.1984).
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{¶24} In his second assignment of error, Craw argues that the trial court erred
in denying his motions to suppress because the search warrant is overbroad.
Specifically, Craw argues that the search warrant’s reference to “materials used in
the production of drugs, including, but not limited to, precursors as defined in Ohio
Revised Code Section 3719.41” and the search warrant’s failure to explicitly
mention methamphetamine compel the conclusion that the search warrant does not
satisfy the Fourth Amendment’s particularity requirement.
{¶25} “Pursuant to the Fourth Amendment and Section 14, Article I, Ohio
Constitution, only warrants ‘particularly describing the place to be searched and the
person or things to be seized’ may issue.” Gonzales, 2014-Ohio-557, at ¶ 30. “The
manifest purpose of the Fourth Amendment’s particularity requirement is to prevent
general searches.” State v. Swing, 12th Dist. Clermont No. CA2016-10-068, 2017-
Ohio-8039, ¶ 40, citing State v. Widmer, 12th Dist. Warren No CA2011-03-027,
2012-Ohio-4342, ¶ 45, citing Maryland v. Garrison, 480 U.S. 79, 84 (1987). “By
requiring a particular description of the items to be seized, the Fourth Amendment
‘prevents the seizure of one thing under a warrant describing another. As to what is
to be taken, nothing is left to the discretion of the officer executing the warrant.’”
Gonzales at ¶ 30, quoting Marron v. United States, 275 U.S. 192, 196 (1927).
{¶26} “Particularization with respect to the things to be seized actually
encompasses two distinct, albeit related, concerns: ‘one is whether the
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warrant supplies enough information to guide and control the agent’s judgment in
selecting what to take * * * and the other is whether the category as specified is too
broad in the sense that it includes items that should not be seized.’” Id. at ¶ 31,
quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir.1999); Castagnola, 145
Ohio St.3d 1, 2015-Ohio-1565, at ¶ 79.
{¶27} “In determining whether a search warrant satisfies the Fourth
Amendment’s particularity requirement, reviewing courts employ a standard of
practical accuracy rather than technical precision.” Gonzales at ¶ 32, citing United
States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009). “‘[A] search warrant is not
to be assessed in a hypertechnical manner [and need not satisfy the] “[t]echnical
requirements of elaborate specificity once exacted under common law pleadings.”’”
Id., quoting United States v. Srivastava, 540 F.3d 277, 289 (4th Cir.2008), quoting
United States v. Ventresca, 380 U.S. 102, 108 (1965). A search warrant will be held
sufficiently particular if it allows the executing officer to reasonably ascertain and
identify the items that they are authorized to seize and distinguish those items from
items that they may not seize. Swing at ¶ 40, citing Widmer at ¶ 45, citing State v.
McCroy, 6th Dist. Wood Nos. WD-09-074 and WD-09-090, 2011-Ohio-546, ¶ 37
and United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir.1991); Gonzales at ¶
32, quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988), fn. 12.
{¶28} In this case, the search warrant reads, in its relevant part, as follows:
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From the affidavit sworn to before me, which is attached to the
original of this Search Warrant, I find probable cause exists to issue
this Warrant.
***
The property to be searched for and seized is described as follows:
Drugs and drug paraphernalia, including, but not limited to materials
used in the production of drugs, including but not limited to precursors
as defined in Ohio Revised Code Section 3719.41, scales, monies,
packaging materials, weapons used to protect drugs and money and
any recording or monitoring devices used in the facilitation of drug
transactions; any records indicating ownership of drugs and
contraband items; any books, records, receipts, bank statements, etc.
evidencing the obtaining, secreting, transfer or concealment of assets
and/or the secreting, transfer, concealment or expenditure of money
and the person of anyone found inside the premise to be searched.
(State’s Ex. 1 at 6).
{¶29} On appeal, Craw contends that the search warrant does not comply
with the Fourth Amendment because it gave searchers “carte blanche to search for
anything related to every drug.” (Appellant’s Brief at 6). In particular, Craw
contends that the search warrant’s reference to “precursors as defined in Ohio
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Revised Code Section 3719.41” fails the particularity requirement because “[R.C.
3719.41] defines all controlled substances.” (Id.). Craw also argues that the
warrant’s description of the items to be seized is defective because the search
warrant does not specifically authorize law enforcement officers to seize
methamphetamine.
{¶30} “A search warrant that includes broad categories of items to be seized
may nevertheless be valid when the description is ‘“‘as specific as the circumstances
and the nature of the activity under investigation permit.’”’” Castagnola, 145 Ohio
St.3d 1, 2015-Ohio-1565, at ¶ 80, quoting Guest v. Leis, 255 F.3d 325, 336 (6th
Cir.2001), quoting United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988),
quoting United States v. Blum, 753 F.2d 999, 1001 (11th Cir.1985). Here, a fair
reading of the search warrant discloses that the only items which law enforcement
officers are authorized to seize are those that bear a connection to the crimes of drug
possession and drug manufacturing. See State v. Bangera, 11th Dist. Geauga No.
2015-G-0021, 2016-Ohio-4596, ¶ 50 (“[A] search warrant containing a list of
generic items likely to be found in the possession of a drug trafficker is not
overbroad where the warrant limits the items to be seized to items that are related to
the offenses of drug possession and drug trafficking.”), citing Gonzales, 2014-Ohio-
557, at ¶ 34 and Young, 2006-Ohio-1784, at ¶ 33. Thus, the search warrant is not
fatally unparticular for failing to mention methamphetamine by name.
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{¶31} Moreover, the warrant’s reference to “precursors as defined in Ohio
Revised Code Section 3719.41” does not make the search warrant unconstitutionally
indefinite. Under R.C. 3719.41, “precursors” are a small and narrow class of
substances: immediate precursors to amphetamine and methamphetamine and
immediate precursors to phencyclidine (PCP). R.C. 3719.41, Schedule II (F)(1)-
(2). Thus, contrary to Craw’s assertion that the warrant’s reference to R.C. 3719.41
does not impose a meaningful limitation on the items authorized to be seized, the
warrant’s use of the phrase “precursors as defined in Ohio Revised Code Section
3719.41” authorizes, at most, the seizure of the immediate precursors of only three
controlled substances.
{¶32} Finally, construing the search warrant with the attached affidavit
removes any lingering ambiguities as to the authorized scope of the search and
seizure. We recognize that “[t]he Fourth Amendment by its terms requires
particularity in the warrant, not in the supporting documents.” Groh v. Ramirez,
540 U.S. 551, 557 (2004), citing Massachusetts v. Sheppard, 468 U.S. 981, 988
(1984), fn.5 and United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir.1999).
However, warrants may satisfy the particularity requirement by being interpreted
with reference to an affidavit incorporated into the warrant or physically attached
thereto. See United States v. Hurwitz, 459 F.3d 463, 470-473 (4th Cir.2006);
Baranski v. Fifteen Unknown Agents of Bur. of Alcohol, Tobacco & Firearms, 452
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F.3d 433 (6th Cir.2006). See also Groh at 557-558. Here, the search warrant
expressly references the affidavit used to support the application for the search
warrant and states that the affidavit is attached to the warrant. (State’s Ex. 1 at 6).
The affidavit contains a list of the property to be searched for and seized identical
to the list set forth in the warrant. (Id. at 1). The affidavit further states that the list
of property to be searched for and seized “is involved with a violation of Ohio
Revised Code Section 2925.11, 2924.04 and 2925.041.”2 (Id.). Finally, the
affidavit repeatedly refers to methamphetamine and methamphetamine production.
(Id. at 2-3).
{¶33} Construing the search warrant with the attached affidavit, it is clear
that the search warrant sharply constrained the discretion of law enforcement
officers and authorized them to search for and seize only those items that were
related to violations of R.C. 2925.11, 2925.04, and 2925.041. See Gonzales, 2014-
Ohio-557, at ¶ 33-34. Because the affidavit refers exclusively to methamphetamine
and the manufacture of methamphetamine, it is clear that the “drugs,” “drug
paraphernalia,” “materials used in the manufacture of drugs,” and “precursors as
defined in Ohio Revised Code Section 3719.41” refer specifically to
2
R.C. 2925.11 and 2925.041 concern possession of controlled substances and illegal assembly or possession
of chemicals for manufacture of drugs, respectively. The affidavit’s recital of a possible violation of R.C.
2924.04, a nonexistent statutory provision, is likely a typographical error. R.C. 2925.04 concerns the illegal
manufacture of drugs, a charge to which Craw ultimately pleaded no contest, and it is probable that the affiant
intended to reference this provision.
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methamphetamine, materials used to produce methamphetamine, precursors to
methamphetamine, and other paraphernalia relating to the possession and
manufacture of methamphetamine. Thus, the list of items to be searched for and
seized is limited to items related to violations of R.C. 2925.11, 2925.04, and
2925.041, specifically possession and production of methamphetamine. As such,
the search warrant is sufficiently particular. See Gonzales at ¶ 33-34; Bangera,
2016-Ohio-4596, at ¶ 51.
{¶34} In his third assignment of error, Craw argues that the trial court erred
by denying his motions to suppress statements he made to police before he received
Miranda warnings. In particular, Craw contends that the trial court incorrectly
concluded that his pre-Miranda statements were admissible under the public-safety
exception to the Miranda rule and that, as a result, the trial court erred in denying
his motions to suppress the statements.
{¶35} “‘The Fifth Amendment to the U.S. Constitution provides a privilege
against self-incrimination.’” State v. Pickens, 3d Dist. Marion No. 9-16-35, 2017-
Ohio-1231, ¶ 10, quoting State v. Edmond, 10th Dist. Franklin No. 15AP-574, 2016-
Ohio-1034, ¶ 11. “‘To protect this right, the United States Supreme Court has held
that “the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-
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incrimination.”’” Id., quoting Edmond at ¶ 11, quoting Miranda v. Arizona, 384
U.S. 436, 444 (1966). “What are now commonly known as Miranda warnings are
intended to protect a suspect from the coercive pressure present during a custodial
interrogation.” Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, ¶ 9, citing
Miranda at 469. “A custodial interrogation is ‘questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.’” Id., quoting Miranda at
444.
{¶36} The trial court denied Craw’s motions to suppress evidence after
concluding that, although Craw was in custody, the public-safety exception to the
Miranda rule obviated the requirement that law enforcement officers provide Craw
with Miranda warnings prior to initiating questioning. The trial court summarized
the events surrounding Craw’s statements, in relevant part, as follows:
When [Detectives Doug Timmerman (“Timmerman”) and Lance
Crum] approached [Craw’s travel trailer], they observed that the door
was open. They identified themselves as officers of the Mercer
County Sheriff’s Department and ordered the individuals inside the
trailer to vacate it. When two individuals came forth, the officers
inquired if anyone else was left in the trailer because of their concern
for their safety and anyone else who may have been in the trailer.
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[Craw] advised them that two cooks were in process in the trailer.
Detective Timmerman asked [Craw] if he needed to burp the
operation, and [Craw] responded that that was necessary.
Timmerman then notified the fire department. At no time did
Detective Timmerman Mirandize the defendant, his focus being on
the danger of the situation and his desire to protect the officers as well
as [Craw].
[Detective Chad Fortkamp (“Fortkamp”)] testified that he
accompanied Detective Timmerman to the scene. * * * [Craw]
advised Detective Fortkamp that an active cook was in process in
response to Fortkamp stating he was going into the trailer. * * *
[Detective Fortkamp] did not hear Timmerman advise [Craw] of his
Miranda warnings.
(Doc. No. 87). Competent, credible evidence supports the trial court’s factual
findings regarding the events surrounding Craw’s statements. See State v.
Thompson, 7th Dist. Jefferson Nos. 98 JE 28 and 98 JE 29, 2001 WL 69197, *5-6
(Jan. 24, 2001).
{¶37} At the suppression hearing, Timmerman testified that he ordered Craw
out of the trailer and that he posed questions to Craw. (Aug. 28, 2015 Tr. at 24).
Timmerman asked “if there was anyone else in the trailer” to which Craw responded
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that “there was not.” (Id.). Timmerman then testified that he asked Craw whether
there was “anyone else or anybody, or anything in the trailer that can hurt us.” (Id.).
According to Timmerman, Craw then informed him that two active cooks were in
process, and he later answered that the cooks needed to be “burped.”3 (Id. at 24-
25). Timmerman testified that he did not read Craw Miranda warnings. (Id.).
{¶38} When asked why he questioned Craw without advising him of his
Miranda rights, Timmerman answered:
[Timmerman]: Well, first off, I wanted to make sure there was nobody else
in the trailer for our safety. And then when he informed us
that there was * * * two active cooks going on in there,
[through] my training, [I’ve] been told that an active cook
is very volatile and explosive. I certainly didn’t want
myself or Fortkamp, or even them, to get hurt, if that thing
went off, so he was very forward with the amount of time
that we had before that thing would, * * * because I
specifically asked him if he needed to burp that lab, or to
burp the bottle, and he said yes, and said two minutes. So
that’s when I yelled for Barry Niekamp, one of the Task
3
“Burping” refers to the act of releasing pressurized gas that forms in a closed container during the process
of manufacturing methamphetamine.
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Force officers, to come over and immediately got the fire
department staged up on that.
(Id. at 25). On cross-examination, Timmerman reiterated that Craw informed him
that there were two active cooks after Timmerman asked whether there was “anyone
or anything in the trailer that’s going to hurt us.” (Id. at 28). On redirect
examination, Timmerman stressed that he was “concerned about the safety of that
lab.” (Id. at 32). Timmerman testified that he felt that “[t]here is a safety issue for
myself * * * and everybody else who is out there yet. * * * I don’t know if there is
another person in there, I don’t know if there are weapons in there, I don’t know if
the lab is going to blow up.” (Id.).
{¶39} The State “concedes that Craw was in custody at the time of his
statements, that his statements were made in response to law enforcement
questioning, and that he was not read Miranda warnings prior to making several of
his statements.” (Appellee’s Brief at 10). Therefore, this court assumes without
deciding that Craw made the statements at issue in the context of a custodial
interrogation and without the benefit of Miranda warnings. As such, we turn to
whether Craw’s statements are admissible notwithstanding the absence of Miranda
warnings.
{¶40} In denying Craw’s motions to suppress his statements, the trial court
concluded that although Craw’s incriminating statements were made in response to
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“certain questions posed to him by law enforcement officers prior to * * * being
advised of his constitutional rights” as required under Miranda, the officers’
questions were asked with “regard to and for the purpose of securing the personal
safety of the law enforcement officers as well as [Craw].” (Doc. No. 87).
{¶41} In New York v. Quarles, 467 U.S. 649 (1984), the United States
Supreme Court announced an exception to the rule established in Miranda known
as the public-safety exception. Under the public-safety exception, “when officers
ask ‘questions necessary to secure their own safety or the safety of the public’ as
opposed to ‘questions designed solely to elicit testimonial evidence from a suspect,’
they do not need to provide the warnings required by Miranda.” State v. Maxwell,
139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 113, quoting Quarles at 659. The public-
safety exception is intended to avoid placing law enforcement officers in the
untenable position of having to consider, often in a matter of seconds,
whether it best serves society for them to ask the necessary questions
without the Miranda warnings and render whatever probative
evidence they uncover inadmissible, or for them to give the warnings
in order to preserve the admissibility of evidence they might uncover
but possibly damage or destroy their ability to obtain that evidence
and neutralize the volatile situation confronting them.
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Case No. 10-17-09
Quarles at 657-658. It is a “narrow exception” in which the permissible scope of
questioning is “circumscribed by the exigency which justifies it.” Id. at 658.
{¶42} The public-safety exception is frequently invoked and applied in cases
where a suspect who has not been read Miranda warnings is asked about the
possession or location of a firearm or other weapon which could be used by a
confederate of the suspect or found by a member of the public. See, e.g., id. at 651-
652; Maxwell at ¶110-111. However, the exception has also been applied by Ohio
and federal appellate courts in circumstances in which the exigency that prompted
questioning by law enforcement officers did not arise from a suspicion that a suspect
was in possession or had recently come out of possession of a firearm or other
weapon which could be wielded by someone else. See, e.g., State v. Strozier, 172
Ohio App.3d 780, 2007-Ohio-4575, ¶ 27-28 (2d Dist.) (determining that the public-
safety exception could apply to questions about whether a suspect was in possession
of drug paraphernalia that could prick or otherwise injure police officers); United
States v. Mohammed, 6th Cir. No. 10-4145, 2012 WL 4465626 (Sept. 28, 2012)
(same); State v. Thompson-Shabazz, 2d Dist. Montgomery No. 27155, 2017-Ohio-
7434, ¶ 37 (applying the public-safety exception to questions aimed at determining
the whereabouts and physical condition of a person whose life was reasonably
believed to be in danger); State v. Santiago, 9th Dist. Lorain No. 01CA007798, 2002
WL 388901, *3-4 (Mar. 13, 2002) (noting that the public-safety exception has been
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extended to “situations where exigent circumstances may excuse compliance with
Miranda when there is an overriding need to save human life or to rescue persons
whose lives are in danger”). But see State v. Ferrell, 11th Dist. Portage No. 2017-
P-0018, 2017-Ohio-9341, ¶ 45-46 (suggesting that the Supreme Court of Ohio’s
decision in Maxwell limits application of the public-safety exception only to
circumstances where law enforcement officers have reason to believe that a suspect
might have (or recently had) a weapon). In fact, at least one state supreme court has
applied the public-safety exception to circumstances in which a law enforcement
officer entered an apartment, detected a strong smell of ammonia, and asked the
occupant whether there was an active methamphetamine lab in the apartment and
what stage the lab was in. State v. Simmons, 714 N.W.2d 264, 274-275 (Iowa 2006).
{¶43} Here, law enforcement officers were serving a search warrant at the
site of a suspected methamphetamine lab. The operation of a clandestine
methamphetamine lab presents an exigent circumstance with a high risk of injury to
the lab’s operators, law enforcement officers, and the public at large. See R.C.
2933.33(A) (“[T]he risk of explosion or fire from the illegal manufacture of
methamphetamine causing injury to the public constitutes exigent circumstances
and reasonable grounds to believe that there is an immediate need to protect the
lives, or property, of the officer and other individuals in the vicinity of the illegal
manufacture.”). While officers suspected that Craw was cooking methamphetamine
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that evening, they had no way of knowing whether they would encounter a
completed cook or whether they would encounter a cook in which volatile chemical
reactions were still actively taking place. As such, it was necessary for law
enforcement officers to establish the status of the lab as quickly as possible so as to
secure their safety and the safety of the public, including Craw, from the threat of a
potentially unstable and hazardous methamphetamine lab. See United States v.
Hodge, 714 F.3d 380, 386-387 (6th Cir.2013) (noting that the public-safety
exception can be applied in situations where law enforcement officers ask about
bombs, in part, because “[b]ombs are potentially unstable and may cause damage if
ignored or improperly handled by police”). Although Timmerman phrased his
questions broadly, this does not defeat application of the public-safety exception
because his questioning was prompted by a reasonable belief that officer and public
safety was at risk. See, e.g., id. at 387 (noting that Hodge’s response to a question
about whether there was “anything in the house that could get anyone there hurt”
was admissible under the public-safety exception); United States v. Williams, 181
F.3d 945, 953-954 (8th Cir.1999) (noting that Williams’s response to a question
phrased “is there anything we need to be aware of?” was admissible under the
public-safety exception). Accordingly, Craw’s statements are admissible because
the questions which prompted Craw’s statements were necessary to secure the safety
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of law enforcement officers and the public from the potentially dangerous
conditions created by an active methamphetamine lab. See Simmons at 274-275.
{¶44} Therefore, we overrule Craw’s first, second, and third assignments of
error.
{¶45} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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