State v. Fasline

[Cite as State v. Fasline, 2014-Ohio-1470.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
) CASE NO. 12 MA 221
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
FRANCIS FASLINE, )
)
DEFENDANT-APPELLEE. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 11CR73.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellant: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellee: Attorney John Juhasz
7081 West Boulevard, Suite 4
Youngstown, Ohio 44512

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Frank D. Celebrezze, Jr.,
Judge of the Eighth District Court of Appeals,
Sitting by Assignment.

Dated: March 31, 2014
[Cite as State v. Fasline, 2014-Ohio-1470.]
VUKOVICH, J.

{¶1} Plaintiff-appellant State of Ohio appeals the Mahoning County Common
Pleas Court’s suppression ruling. The trial court determined that the “fruits” of the
search were improperly received. For the reasons expressed below, the judgment of
the trial court is hereby affirmed.
Statement of the Case and Facts
{¶2} On November 19, 2010, at 11:59 p.m., residents at a fraternity house
located at 850 Pennsylvania Avenue heard a loud explosion in the vacant lot next to
their house. Defendant’s Exhibit 1. The fraternity president told the investigating
officers that he saw some people from the residence located at 825 Pennsylvania
Avenue in the vacant lot. Defendant’s Exhibit 1. The vacant lot was searched and
the investigating officers found what appeared to be an explosive device; that device
was taken to Youngstown Police Department Bomb Squad Unit. Defendant’s Exhibit
1.
{¶3} Randy Williams, Lieutenant with the Youngstown State University
Police Department and investigator with the Mahoning Valley Law Enforcement Task
Force, was assigned to the case some time thereafter. Tr. 5, 26. At some point,
Officer Pusateri of the Youngstown State University Police Department told him that
Fasline, who lived at the residence located at 825 Pennsylvania Avenue, might be
involved with the explosive device, i.e. a firework, found on the vacant lot. Tr. 28.
Officer Pusateri’s stepson is the one who relayed this information to Officer Pusateri.
Tr. 30, 33. There was also information that Fasline’s family owns a fireworks
business in Pennsylvania. Tr. 8.
{¶4} On the morning of December 1, 2010, Lieutenant Williams and Special
Agent Jay Gebhart of the Bureau of Alcohol, Tobacco & Firearms attempted to do a
“knock and talk” at the residence located at 825 Pennsylvania Avenue. Tr. 8-9;
State’s Exhibit 1. The officers wanted to get consent from Fasline to search the
house for evidence that linked him to the firework/explosive. However, before
arriving at the house, they noticed Fasline get into his car and drive away. The
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officers then followed Fasline and initiated a traffic stop. During the stop, Fasline
consented to a search of his car and home.
{¶5} The search of his car produced no illegal contraband. The officers then
followed Fasline to his house. At the house, Special Agent Gebhart began reading
the consent to search form, however, Fasline interrupted him and stated that he knew
what they were there for and he would go get it. Tr. 13. They followed him up to his
bedroom where he produced a black duffle bag full of tubes that were exactly like the
tube that was found in the vacant lot. The tubes had wicks that you would light to set
off the firework/explosive. Tr. 14. He also gave them some cardboard boxes with
some powder residue in them, and a “spatula-type of thing” that is used to mix up the
chemicals. Tr. 14.
{¶6} As a result of this evidence, Fasline was charged with Illegal
Manufacturing or Processing Explosives in violation of R.C. 2923.17(B)(E), a second-
degree felony; Assembly or Possession of Chemicals in violation of R.C.
2909.28(A)(C), a fourth-degree felony; and Manufacturing of Fireworks, in violation of
R.C. 3743.60(A), a third-degree felony pursuant to R.C. 37434.99(A). 01/20/11
Indictment.
{¶7} Fasline pled not guilty, waived his right to a speedy trial, filed discovery
motions and filed a motion to suppress. The state filed a motion in opposition to
suppression. Fasline acquired new counsel and filed a Supplemental Motion to
Suppress. A hearing was held on the suppression motions. During this hearing, the
facts surrounding the stop and the consent to search were discussed in depth.
11/08/12 Hearing. Following the hearing, counsel for each party filed post-hearing
motions arguing their respective positions.
{¶8} After considering the parties’ arguments, the trial court granted
Fasline’s suppression motion. The state immediately appealed.
Assignment of Error
{¶9} “The trial court should have denied Appellant’s motion to suppress,
because competent and credible evidence established that defendant’s consent to
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search his vehicle and residence was voluntarily given, and the record does not
demonstrate that the officers’ actions were coercive.”
{¶10} The trial court found that considering the events that led up to, and the
events that occurred during the traffic stop, the officers coerced Fasline in consenting
to the search and returning to his house immediately for the search. It found that
“’fruits’ of the search received after returning to 825 Pennsylvania Avenue were
improperly received.” 12/14/12 J.E. It further added, “Bolstering the questionable
conduct of the officers the items turned over to the officers by Fasline at the premises
were given before he had signed a consent search to the premises.” 12/14/12 J.E.
{¶11} The standard of review in an appeal of a suppression issue is two-fold.
State v. Dabney, 7th Dist. No. 02BE31, 2003–Ohio–5141, at ¶ 9, citing State v. Lloyd,
126 Ohio App.3d 95, 100–101, 709 N.E.2d 913 (7th Dist.1998). Since the trial court
is in the best position to evaluate witness credibility, an appellate court must uphold
the trial court's findings of fact if they are supported by competent, credible evidence.
Id., citing State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th Dist.1996),
citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802 (9th
Dist.1994). However, once an appellate court has accepted those facts as true, the
court must independently determine as a matter of law whether the trial court met the
applicable legal standard. Id., citing State v. Clayton, 85 Ohio App.3d 623, 627, 620
N.E.2d 906 (4th Dist.1993). This determination is a question of law of which an
appellate court cannot give deference to the trial court's conclusion. Id., citing Lloyd.
{¶12} In this case, the state concedes that the trial court correctly applied the
law. The state’s argument solely concerns the trial court’s finding that Fasline was
coerced into consenting to the search of his residence. That holding we review for an
abuse of discretion.
{¶13} The Fourth Amendment to the United States Constitution and Section
14, Article I of the Ohio Constitution, protect individuals from unreasonable searches
and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State
v. Pressley, 2d Dist. No. 24852, 2012–Ohio–4083, ¶ 18. “[P]hysical entry of the
home is the chief evil against which the wording of the Fourth Amendment was
 -4-

directed.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371 (1980). It is a basic
principle of Fourth Amendment law that searches and seizures inside a home without
a warrant are presumptively unreasonable. Id. at 586.
{¶14} At a suppression hearing, the state bears the burden of establishing
that a warrantless search and seizure falls within one of the exceptions to the warrant
requirement and that it meets Fourth Amendment standards of reasonableness.
State v. Kessler, 53 Ohio St.2d 204, 207 (1978); Maumee v. Weisner, 87 Ohio St.3d
295, 297 (1999).
{¶15} In the appellate brief, three separate arguments are set forth by the
state as to why the trial court’s suppression ruling is incorrect. The first addresses
the traffic stop and contends that it was legal. The second concerns the consent to
search the residence and asserts that it was voluntarily given. The third is an
alternative argument to the second argument. The state asserts that even if we find
that consent was not voluntary, there were exigent circumstances that permitted the
warrantless search. However, as stated above the state’s primary contention is that
the trial court incorrectly determined that Fasline was coerced into consenting to the
search of his residence.
1. Traffic Stop
{¶16} As aforementioned, when Lieutenant Williams and Special Agent
Gebhart were approaching 825 Pennsylvania Avenue in an attempt to make contact
with Fasline at his residence, they observed Fasline in his car leaving. Tr. 9.
Lieutenant Williams testified that they proceeded to attempt to follow Fasline. Tr. 9.
He explained that Fasline proceeded northbound on Pennsylvania Avenue and was
driving at a high rate of speed. By the time they got to the intersection of
Pennsylvania and Park Avenues, he had already turned off of Park Avenue onto Elm
Street. Tr. 9. Lieutenant Williams indicated that they continued to follow him and
finally caught up to Fasline on Youngstown-Hubbard Road near Winkle Electric. Tr.
9. At that point, they initiated a stop by turning on the lights and sirens in the
unmarked car they were operating. Tr. 9, 36. The officers were not in uniform; they
were in plain clothes. Tr. 36. Lieutenant Williams stated that Fasline drove “like an
 -5-

idiot”, that the road conditions were snowy and wet and that he was driving recklessly
in violation of the traffic laws. Tr. 9-10.
{¶17} During the testimony, Lieutenant Williams admitted that there were two
reasons why Fasline was stopped. Tr. 37-39. One was because he was driving
recklessly, i.e. committing a traffic offense. Tr. 37-39. And the second reason was
because the officers wanted to talk to him about giving consent to search his
residence. Tr. 37-39. No citation for driving recklessly was issued. Tr. 37. In fact,
Lieutenant Williams indicated that he has not written a citation in “five or six, ten
years” and admitted that he did not have any tickets. Tr. 37.
{¶18} The state asserts that this traffic stop did not violate the Fourth
Amendment to the United States Constitution.
{¶19} The Fourth Amendment to the United States Constitution insulates
individuals from unreasonable searches and seizures. United States v. Hensley, 469
U.S. 221, 226, 105 S.Ct. 675 (1985). A traffic stop initiated by a law enforcement
officer implicates the Fourth Amendment and must comply with the Fourth
Amendment's general reasonableness requirement. Whren v. United States, 517
U.S. 806, 809, 116 S.Ct. 1769 (1996). To justify a traffic stop, an officer must have a
reasonable suspicion of criminal activity. Maumee, 87 Ohio St.3d at 299. Accord
Terry, 392 U.S. at 22. A police officer has sufficient cause to conduct a traffic stop if
the officer witnesses a violation of a traffic law. State v. Campbell, 9th Dist. No.
05CA0032–M, 2005–Ohio–4361, ¶ 11.
{¶20} The Ohio Supreme Court has stated that:
Where a police officer stops a vehicle based on probable cause
that a traffic violation has occurred or was occurring, the stop is not
unreasonable under the Fourth Amendment to the United States
Constitution even if the officer had some ulterior motive for making the
stop, such as a suspicion that the violator was engaging in more
nefarious criminal activity. (United States v. Ferguson [C.A.6, 1993], 8
F.3d 385, applied and followed.)
Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus.
 -6-

{¶21} Here, the trial court did not find that the initial traffic stop was
unreasonable; the trial court did not state that it did not believe Lieutenant Williams’
testimony that Fasline was driving recklessly. Therefore, considering the above law,
the testimony, that credibility is best left to the trier of fact, and the fact that driving
recklessly does constitute a traffic offense, the initial stop was not unreasonable
under the Fourth Amendment. It is inconsequential that these officers had an ulterior
motive for making the stop and had no intention of issuing a citation.
{¶22} Therefore, stopping Fasline for a traffic violation did not violate the
Fourth Amendment. However, this does not mean that what occurred during the stop
was reasonable under the Fourth Amendment. “The lawfulness of the initial stop will
not support a ‘fishing expedition’ for evidence of crime.” State v. Dieckhoner, 8th
Dist. No. 96694, 2012–Ohio–805, ¶ 13.
2. Consent
{¶23} During the stop, Fasline consented to two searches – he consented to
the search of his vehicle and he consented to the search of his residence.
{¶24} Consent is a well-recognized exception to the warrant requirement.
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041 (1973). “Whether a
consent to search was voluntary or was the product of duress or coercion, either
express or implied, is a question of fact to be determined from the totality of the
circumstances.” State v. Lett, 11th Dist. No. 2008–T–0116, 2009-Ohio-2796, ¶ 32,
citing Schneckloth at 248-249 and State v. Chapman, 97 Ohio App.3d 687, 691, 647
N.E.2d 504 (1st Dist.1994). Thus, this is a determination best left to the trier of fact,
i.e. the court, and will not be reversed unless it is not supported by competent
credible evidence. Dabney, 2003-Ohio-5141, at ¶ 9.
{¶25} As aforementioned, the state conceded at oral argument that the trial
court correctly applied the law. The state’s main contention against the trial court’s
decision was its finding that consent was the result of coercion.
{¶26} The facts presented at the suppression hearing were that the officers
stopped Fasline and informed him that he was driving “like an idiot.” Tr. 11. During
the stop, the officers also talked to him about the fireworks and asked him if he knew
 -7-

anything about the explosion that occurred a week prior in the vacant lot next to his
residence. State’s Exhibit 1 – Lieutenant Williams’ Report. He responded that he
heard it, but did not know anything about it. State’s Exhibit 1; Tr. 42-43. They then
asked to search his car; he consented and informed them that he has a firework in
his car. State’s Exhibit 1. Lieutenant Williams testified that when Fasline was asked
if they could search his car, Fasline was free to leave. However, the Lieutenant
acknowledged that Fasline was not informed of that fact. Tr. 49-50.
{¶27} During the search of the car, the officers found a legal firework. State’s
Exhibit 1; Tr. 11. Fasline was then asked whether he has any large fireworks at his
residence. State’s Exhibit 1. He indicated that he did not. State’s Exhibit 1. The
officers then asked him whether they can search his residence. State’s Exhibit 1; Tr.
44. He informed them that they can, but he would like to wait an hour so that he can
cash a check. State’s Exhibit 1; Tr. 44. Special Agent Gebhart asked him to do it
now so that they can get the case closed. State’s Exhibit 1, Tr. 12, 44. Fasline
agreed. State’s Exhibit 1; Tr. 12. Lieutenant Williams testified that the need to have
the house searched immediately was because he did not want his lunch delayed. Tr.
44.
{¶28} Given these facts, the trial court’s conclusion that the consent was not
voluntary is supported by competent credible evidence. This encounter seems to be
the prime example of a fishing expedition. As the trial court explained, the only facts
that the officers had that Fasline was involved in the explosion on November 19,
2010, in the vacant lot next to his residence were from double hearsay; Officer
Pusateri told Lieutenant Williams that his stepson told him Fasline was involved in the
explosion. Furthermore, the information and evidence obtained during the stop was
that Fasline stated he had no large fireworks at his house and that a legal firework
was found in his car. Even though their questioning and search of his car produced
no evidence of illegal activity, the officers pushed for him to give consent to search
his home. Tr. 55. Assuming without deciding that consent to search the vehicle was
voluntarily given and reasonable under the Fourth Amendment, consent to search
the vehicle did not give the officers carte blanche to continue to detain Fasline until
 -8-

they got him to consent to the search. Given these circumstances, the trial court
could reasonably find that a reasonable person would not have believed that he had
the freedom to refuse to answer further questions, refuse to give consent to search
and could in fact leave the scene.
{¶29} Therefore, since the determination of whether consent to search was
voluntary or was the product of coercion is a question of fact to be determined from
the totality of the circumstances, and the trial court had competent credible evidence
to support the conclusion that consent to search the home was not voluntary, we
defer to that decision. Lett, 2009-Ohio-2796, ¶ 32 (consent is a question of fact).
The trial court did not abuse its discretion in finding that consent was not voluntary.
3. Exigent Circumstances
{¶30} The final argument is that even if the consent was not voluntary, exigent
circumstances existed that would allow a warrantless search of the residence.
{¶31} Emergency and/or exigent circumstances are a well-established
exception to the Fourth Amendment's warrant requirement. State v. Andrews, 177
Ohio App.3d 593, 2008-Ohio-3993, 895 N.E.2d 585,¶ 23 (11th Dist.); State v. Berry,
167 Ohio App.3d 206, 2006-Ohio-3035, 854 N.E.2d 558,¶ 12 (2d Dist.). We have
previously explained that the United States Supreme Court has identified four main
types of exigent circumstances. State v. Telshaw, 195 Ohio App.3d 596, 607, 2011-
Ohio-3373, 961 N.E.2d 223, ¶ 25 (7th Dist.). They are: hot pursuit of a fleeing felon,
imminent destruction of evidence, the need to prevent escape, the risk of harm to
police or others, and the emergency-aid exception. Id. citing Minnesota v. Olson, 495
U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).
{¶32} The state appears to focus on the emergency-aid exception. It contends
that exigent circumstances exist because the firework/explosive at issue here poses
a danger to the community if it goes off.
{¶33} The key issue for this exception is “whether the officers ‘had reasonable
grounds to believe that some kind of emergency existed * * *. The officer must be
able to point to specific and articulable facts, which, taken with rational inferences
from those facts, reasonably warrant intrusion into protected areas.’” Id., quoting
 -9-

State v. White, 175 Ohio App.3d 302, 2008-Ohio-657, 886 N.E.2d 904, ¶ 17 (9th
Dist.). “Under the emergency-aid exception, an officer has both a right and a duty to
enter the premises and investigate.” Id., citing State v. Applegate, 68 Ohio St.3d
348, 350, 626 N.E.2d 942 (1994).
{¶34} Lieutenant Williams testified that the Bomb Squad was called to take
possession of the material that was seized “due to the fact that if mixed it was very
volatile.” Tr. 15. He stated that the Youngstown Bomb Squad told his department
that the device found in the vacant lot was a very dangerous device. Tr. 40.
{¶35} Those facts could lend support to an emergency or exigent
circumstance that would permit a warrantless search. However, an emergency or
exigent circumstance argument was not made to the trial court. Arguments that are
not raised to the trial court, but are raised to the appeals court, are deemed waived.
State v. Demus, 192 Ohio App.3d 181, 2011-Ohio-124, 948 N.E.2d 508, ¶ 13 (2d
Dist.) (Under Crim.R. 47 motions to suppress must be stated with particularity. Thus,
if a motion to suppress fails to state a particular basis for relief, that issue is waived
and cannot be argued on appeal). Furthermore, and potentially more problematic, is
the fact that Lieutenant Williams’ testimony indicates several times that it was not an
emergency to enter the house and search.
Q. So you and I can agree that there’s not some sense of
emergency or urgency when you go out there on December 1st [the
day the knock and talk was attempted]; correct?
A. Correct.
Tr. 21.
{¶36} Lieutenant Williams was later asked about why they were pushing for
Fasline to consent to the immediate search of the house:
Q. And Mr. Fasline indicates that he would do that [go back to
the house for the search to be conducted] but he would do it at a point
in time after he went and cashed a check and talked to his parents?
A. Yeah, I think he wanted an hour to do it.
Q. Okay. And you told him that he couldn’t do that; correct?
 -10-

A. That isn’t correct.
Q. What did you tell him?
A. I believe Special Agent Gebhart asked him if we could do it
now so we could clear up the complaint and be done with it.
Q. What was the emergent nature of clearing up the complaint?
A. Lunch.
***
Q. Okay. If he hadn’t agreed to go back to the house at that
time what would you have done?
A. We would have went and sat on the house.
***
Q. Okay. So you would have gone and sat on the house?
A. Yes.
Q. Okay.
A. We would have waited.
Tr. 44, 50, 51.
{¶37} Thus, the only reason the officers did not want the search to be delayed
was because they did not want their lunch delayed. That is clearly not an exigent
circumstance. Moreover, there is no indication in this testimony that the officers
wanted to get to the house to search it because they were afraid that an explosive
device or firework would go off and someone in the community would be injured. In
fact, the officer clearly indicates that they could have waited.
{¶38} Law-enforcement agents “bear a heavy burden when attempting to
demonstrate an urgent need that might justify warrantless searches and arrests.”
Welsh v. Wisconsin, 466 U.S. 740, 749–750, 104 S.Ct. 2091 (1984). The state must
“demonstrate exigent circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home entries.” Id. at 750. Given
the testimony and the above analysis, that burden was not met. The state’s
argument that there were exigent or emergency circumstances for the warrantless
search fails.
 -11-

Conclusion
{¶39} Although the initial stop did not violate the Fourth Amendment, the trial
court’s conclusion that the actions taken by the officers during the stop to obtain
consent to search the residence did violate Fasline’s Fourth Amendment rights is
supported by competent credible evidence and was not an abuse of discretion. The
judgment of the trial court is hereby affirmed.

Waite, J., concurs.
Celebrezze, J., concurs.