[Cite as State v. Freeders, 2017-Ohio-9278.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, J.
-vs-
Case No. 2017 CA 00041
SHAD FREEDERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2016 CR 01783
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 26, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO AARON KOVALCHIK
PROSECUTING ATTORNEY 116 Cleveland Avenue, NW
RONALD MARK CALDWELL 808 Courtyard Centre
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017 CA 00041 2
Wise, John, P. J.
{¶1} Appellant Shad Freeders appeals his conviction, in the Court of Common
Pleas, Stark County, on two felony counts pertaining to the illegal manufacture of
methamphetamine. Appellee is the State of Ohio. The relevant facts leading to this appeal
are as follows.
{¶2} The charges leading to the conviction at issue in this matter grew out of a
September 12, 2016 traffic stop of Appellant Freeders’ motor vehicle and a subsequent
search of a residence at 450 McNally Court by Alliance police officers. At that time, the
senior investigating officer on the case, Captain James Hilles, was responsible for
monitoring, via the “NPLEX” system, a watch list of persons making suspicious retail
purchases of the precursor chemicals to make methamphetamine, including
pseudoephedrine. As further discussed infra, appellant was on this watch list.
{¶3} On the evening in question, the Alliance Police Department received an
alert from the pharmacy in the West State Street Walmart that appellant had just
purchased pseudoephedrine. Captain Hilles and Detective Bob Rajcan thereupon
proceeded to said location in separate vehicles to investigate. The two officers were
familiar with appellant and his vehicle, and Captain Hilles soon observed appellant’s car
on the road.
{¶4} Captain Hilles thereupon radioed Detective Rajcan for backup, and then
followed appellant as he drove up to an AutoZone automotive parts store on East State
Street. After Detective Rajcan arrived, the officers watched appellant exit the store “with
a small bag consistent with a bag that would have lithium batteries.” Hilles Testimony,
Suppression Transcript (“S.Tr.”) at 16.
Stark County, Case No. 2017 CA 00041 3
{¶5} The officers proceeded to follow appellant’s car after he departed the store.
After reaching Summit Street, a traffic stop was effectuated. Captain Hilles ordered
appellant out of his car at gunpoint, based on concerns that appellant might have an
active mobile “meth lab” in the vehicle. The officers observed lithium batteries in plain
sight on one of the car seats. Appellant was then placed under arrest for possessing
chemicals to manufacture methamphetamine. Appellant was given his Miranda rights,
and when he was asked for consent to a search of the residence at 450 McNally Court,
he declined to give consent and denied said residence was his. S.Tr. at 23. Captain Hilles
and other officers then proceeded to 450 McNally Court. They searched the trash,
observing additional indicators of precursor chemicals, and then entered the house
pursuant to R.C. 2933.33(A), infra. They later obtained and executed a search warrant
for the house.
{¶6} On October 31, 2016, Appellant Freeders was indicted on one count of
illegal manufacture of drugs, R.C. 2925.04(A) (a felony of the first degree), and the illegal
assembly or possession of chemicals for the manufacture of drugs, R.C. 2925.041(A) (a
felony of the third degree). Appellant entered pleas of not guilty to both of the aforesaid
charges.
{¶7} On November 23, 2016, appellant filed a motion to suppress, arguing that
the traffic stop and warrantless entry/search of the house were illegal, and thus the
evidence of a meth lab operation at the residence should have been suppressed.
{¶8} On December 20, 2016, the trial court conducted an evidentiary hearing on
appellant’s suppression motion. The sole witness was Captain Hilles.
Stark County, Case No. 2017 CA 00041 4
{¶9} On January 23, 2017, the trial court issued a nine-page judgment entry
overruling the motion to suppress.
{¶10} On February 1, 2017, appellant appeared before the trial court and entered
pleas of “no contest” to both of the aforesaid counts. Via a judgment entry issued on
February 6, 2017, the trial court sentenced appellant to a prison term of four years for the
offense of illegal manufacture of drugs, and a concurrent term of thirty-six months for the
offense of illegal assembly or possession of chemicals for the manufacture of drugs.
{¶11} On March 3, 2017, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶12} “I. APPELLANT'S CONSTITUTIONAL RIGHTS AS GUARANTEED BY
THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND
ARTICLE I SECTION 14 OF THE OHIO CONSTITUION [SIC] WERE VIOALTED [SIC]
WHEN THE TRIAL COURT OVERRULED THE MOTION TO SUPPRESS.”
I.
{¶13} In his sole Assignment of Error, appellant essentially contends the trial court
erred and violated his constitutional rights by denying his motion to suppress. We
disagree.
{¶14} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third type of claim, an appellate court must independently determine,
Stark County, Case No. 2017 CA 00041 5
without deference to the trial court's conclusion, whether the facts meet the appropriate
legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437
N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry
(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d
623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d
726. The United States Supreme Court has held that as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal. See
Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
{¶15} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d
1271.
{¶16} “Under Terry, police officers may briefly stop and/or temporarily detain
individuals in order to investigate possible criminal activity if the officers have a
reasonable, articulable suspicion that criminal activity may be afoot ***.” State v. Swift,
2nd Dist. Montgomery No. 27036, 2016–Ohio–8191, ¶ 10. In other words, the Fourth
Amendment does not require a police officer to “simply shrug his [or her] shoulders and
allow a crime to occur ***.” State v. Klein, 73 Ohio App.3d 486, 489, 597 N.E.2d 1141 (4th
Dist.1991).
{¶17} “* * * [I]f an officer's decision to stop a motorist for a criminal violation,
including a traffic violation, is prompted by a reasonable and articulable suspicion
Stark County, Case No. 2017 CA 00041 6
considering all the circumstances, then the stop is constitutionally valid.” State v. Mays,
119 Ohio St.3d 406, 894 N.E.2d 1204, 2008–Ohio–4539, ¶ 8. However, an officer's
reasonable articulable suspicion does not require proof beyond a reasonable doubt that
the defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist.
Licking No. 14 CA 103, 2015–Ohio–3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App.
3d 18, 20, 691 N.E.2d 1074 (8th Dist.1997).
Initial Traffic Stop
{¶18} Appellant first challenges the legality of the officers’ stop of his vehicle a few
minutes after he left the AutoZone store.
{¶19} In the case sub judice, Captain Hilles testified that the fundamental reason
for the traffic stop was because the officers believed appellant had purchased the
precursors for methamphetamine and that he had previously sold methamphetamine.
S.Tr. at 17-18.1 Appellant was on the local precursor watch list at that time based on his
twenty reported purchases of pseudoephedrine over a twelve-month period. These
purchases, involving seven different pharmacies, were for 2.4 gram boxes of
pseudoephedrine, which are commonly used to make meth in illegal labs. S.Tr. at 10-11.
Captain Hilles equated this to approximately one purchase every two weeks, which,
according to his testimony, is the maximum amount one can buy without going into an
“exceedance level.” S.Tr. at 11.
1 Upon cross-examination, Captain Hilles also testified that he observed appellant
speeding before appellant stopped at AutoZone, and that a traffic citation was issued after
appellant's arrest. S.Tr. at 27. However, it was conceded that the traffic citation was not
signed by Captain Hilles. S.Tr. at 28. Hilles was also under the impression prior to the
stop that appellant was under suspension, but appellant apparently had a valid driver’s
license at the time. However, these bases were not relied upon by the trial court in its
decision. See Judgment Entry, January 23, 2017, at f.n. 1.
Stark County, Case No. 2017 CA 00041 7
{¶20} Furthermore, the officers were aware that a confidential informant (“CI”)
working with the Alliance Police Department had purchased suspected
methamphetamine from appellant on September 6, 2016, just six days earlier, although
we note Captain Hilles testified on cross-examination that sometime after the events
presently at issue, the crime lab results came back that the substance purchased by the
CI was not methamphetamine. S.Tr. at 30. In addition to the above pseudoephedrine
purchases, appellant on the day in question was seen exiting an AutoZone store, well
down the road from the location of his most recent purchase at WalMart, carrying a small
bag consistent with the purchase of lithium batteries. Captain Hilles noted that lithium
batteries are “absolutely” necessary for methamphetamine production. S.Tr. at 16. Hilles
also testified that persons buying precursor materials often visit several stores to avoid
detection by retail personnel, and common stops are big-box, dollar, or auto parts stores.
We recognize that the batteries in appellant’s possession in this instance were not visible
to the officers until after the traffic stop. However, in light of appellant’s monitored NPLEX
history of activity related to purchasing precursor chemicals, his familiarity to the officers
via a suspected CI purchase, and his activity on the day in question, we find Captain
Hilles adequately iterated a reasonable articulable suspicion of criminal activity afoot to
justify the traffic stop of September 12, 2016.
{¶21} Accordingly, upon review, we hold the trial court did not err in denying
appellant's suppression motion in regard to the issue of the traffic stop.
Initial Search of the 450 McNally Court Residence
{¶22} Appellant secondly challenges the legality of the officers’ warrantless entry
into the residence at 450 McNally Court.
Stark County, Case No. 2017 CA 00041 8
{¶23} As an initial matter, we sua sponte note that under the general rule of
Crim.R. 47, a motion to suppress “shall state with particularity the grounds upon which it
is made.” The State's burden of proof in a motion to suppress hearing is limited to those
contentions that are asserted with sufficient particularity to place the prosecutor and court
on notice of the issues to be decided. Johnstown v. Jugan, 5th Dist. Licking No. 95CA90,
1996 WL 243805. “In general, the State is not expected to anticipate specific legal and
factual grounds upon which a defendant relies in a motion to suppress.” State v. Fowler,
5th Dist. Tuscarawas No. 2016AP040024, 2016-Ohio-5940, ¶ 22. Failure of the defendant
to adequately raise the basis of his or her challenge constitutes a waiver of that issue on
appeal. See City of Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218–219, 524 N.E.2d
889.
{¶24} Appellant’s motion to suppress in the trial court record consists of an
introduction followed by a two-page memorandum which concisely sets forth various
search and seizure case law citations, ending with the following:
In the instant case a traffic stop was initiated and the Defendant was
unreasonably detained. As a result of the illegal traffic stop[,] a warrantless
search of the Defendant’s residence was conducted. After the illegal
warrantless search[,] evidence and statements were obtained.
WHEREFORE, Defendant requests this Honorable Court to suppress any
and all statements and physical evidence obtained subsequent to the
unlawful search and seizure.
{¶25} Motion to Suppress, November 23, 2016, at 3.
Stark County, Case No. 2017 CA 00041 9
{¶26} While one would be hard-pressed to conclude the foregoing generously
provides “specific factual grounds” (Fowler, supra) in support of suppressing the results
of the search of the residence, in the interest of justice we will proceed with our analysis.
{¶27} R.C. 2933.33(A) states that “[i]f a law enforcement officer has probable
cause to believe that particular premises are used for the illegal manufacture of
methamphetamine, for the purpose of conducting a search of the premises without a
warrant, the 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.” (Emphasis added).
{¶28} We have defined “probable cause” as “reasonable grounds for belief,
supported by less than prima facie proof, but more than suspicion, and [which] is said to
exist when there is fair probability, given the totality of the circumstances, contraband or
evidence of a crime will be found in a particular place.” State v. Rausenberg, 5th Dist.
Delaware No. 16CAA020007, 2017-Ohio-1078, ¶ 56, citing United States v. Howard, 621
F.3d 433, 453 (6th Cir. 2010).
{¶29} The Ninth District Court of Appeals has aptly noted as follows:
The combustible nature of methamphetamine laboratories poses a
grave danger to occupants of the dwelling, neighbors, law enforcement and
the community at large. The existence of an active methamphetamine
laboratory is, as a matter of law, an emergency which threatens life and limb
that supports an objectively reasonable belief that immediate action is
necessary to protect life or property.
Stark County, Case No. 2017 CA 00041 10
{¶30} State v. Timofeev, 9th Dist. Summit No. 24222, 2009-Ohio-3007, ¶ 26
(additional citations omitted).
{¶31} In its judgment entry overruling appellant’s suppression motion, the trial
court included the following pertinent determinations:
In this case, the Court finds that Captain Hilles had a reasonable
belief that a methamphetamine laboratory was being operated at the
residence. The Court finds that such reasonable belief developed after the
defendant was observed to assemble the precursors for the manufacturing
of methamphetamine as set forth above. Moreover, the defendant, with
such precursors, was headed in the direction of the residence, where the
officers believed he had been making methamphetamine based upon prior
controlled purchases from the defendant. Additionally, upon approaching
the residence, the officers observed empty containers of the precursors for
the manufacturing of methamphetamine in plain view in the trash cans.
Further, as indicated by the defendant, no one was living at the residence
at the time of [the] stop, which indicated to Captain Hilles that the lab was
unattended and, therefore, very volatile. Viewing the totality of the
circumstances, the Court finds, pursuant to R.C. §2933.33(A), as a matter
of law, an emergency existed permitting the officers to enter the residence
without a warrant being issued and that the warrantless entry into the
residence was permitted pursuant to same.
{¶32} Judgment Entry, January 23, 2017, at 8-9.
Stark County, Case No. 2017 CA 00041 11
{¶33} Ohio case law has recognized that a police officer's training and experience
in the area of methamphetamine production can be used to support a finding that the
officer believed the methamphetamine activity in a residence was dangerous to those in
close proximity. See State v. Runyon, 2nd Dist. Greene No. 2015-CA-63, 2016-Ohio-
5730, ¶ 29, citing State v. Parson, 2d Dist. Montgomery No. 23398, 2010–Ohio–989, ¶
15.
{¶34} In addition to the foregoing facts spelled out by the trial court, we note
Captain Hilles testified he has had specialized training in the areas of manufacturing of
methamphetamine, methamphetamine labs, methamphetamine trafficking, and the
effects of the drug on the human body. In addition, he is also certified to recognize the
chemicals involved, how labs are set up, and how to safely dismantle such labs. See
Runyon, supra. Although he did not mention the existence of a chemical odor at the scene
in this instance, he testified that an unwatched meth lab, if in the reaction phase, can be
akin to a “fire bomb,” and that it can otherwise leak acidic gasses into the immediate
vicinity. S.Tr. at 25. He noted that in the McNally Court neighborhood, children “play on
[the] street because it’s not really a throughfare [sic] too much for traffic.” S.Tr. at 26.
{¶35} We note the trial court relied in part upon State v. Armbruster, 9th Dist.
Summit No. 26645, 2013-Ohio-3119, ¶ 8, for the proposition that probable cause is not
required for a warrantless entry if officers have a reasonable belief that a
methamphetamine laboratory is being operated at a particular location. See Judgment
Entry at 8. While our reading of R.C. 2933.33(A) does not lead us to adopt in totidem
verbis this portion of Armbruster, we nonetheless conclude that probable cause did exist
Stark County, Case No. 2017 CA 00041 12
alongside the exigent circumstances of the case sub judice, thus justifying the warrantless
entry.
{¶36} Therefore, upon review, we hold the trial court did not err in denying
appellant's suppression motion in regard to the initial search of the residence.2
{¶37} Appellant's sole Assignment of Error is overruled.
{¶38} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, John, P. J.
Baldwin, J., and
Wise, Earle, J., concur.
JWW/d 1212
2 In so holding, we find it unnecessary to reach the ancillary issue of whether appellant,
having told the officers that he did not live at the residence and was merely watching it
for the owners, had legal standing to challenge the search.