Judge overrules motion to suppress warrant in meth case

Highland County Common Pleas Court Judge Rocky Coss overruled a defense motion to suppress Thursday in a case where items used in the manufacture of methamphetamine were allegedly found at a residence where children were reported to be present. 

Dallas Clark, of Hillsboro, was indicted in January on a second-degree felony charge of illegal assembly or possession of chemicals used in the manufacture of drugs; and a fifth-degree felony charge of aggravated possession of drugs. 

Clark's attorney, Richard Furnish, assisted by attorney Bill Armintrout, filed a motion to suppress on Feb. 9. Armintrout told the court during Thursday's suppression hearing that even though a search warrant was issued, officers initiated the search prior to the issuance of the warrant and that information obtained during the search was used in the affidavit to support the warrant. 

"The facts set in the warrant were obtained as the result of an unlawful search," Armintrout said. 

The state, represented by Highland County Prosecutor Anneka Collins, said the Ohio Revised Code and case law provides that under "exigent circumstances," officers may enter a residence if "reasonable grounds" exist, in order to protect life and property. 

Collins said in opening statements that officers were attempting to serve a civil protection order (CPO) on an individual [not the defendant] who was believed to be at a residence in the 7000 block of Highland Trails in the Rocky Fork Lake area on Dec. 31. Representatives from Highland County Children Services had been to the residence the previous day and advised that children were in the residence. There were also allegations made to the HCSO that there could be a meth lab at the location. 

The state was also assisted by Assistant Highland County Prosecutor Molly Bolek and Det. Sgt. Richard Warner. 

Dep. Craig Seaman, Dep. Jeff Vickers and Sgt. Steve Alexander each testified Thursday that they responded to the residence near midnight on New Years Eve to serve the CPO. When they arrived, the door to the trailer was ajar, so they knocked on the side of the trailer and announced their presence. They could hear that someone was inside, but no one came to the door. 

All three officers testified that there was "a strong chemical odor." Alexander, who has received training in meth lab detection and cleanup, said the odor burned his lips and eyes. 

With a report that children were in the residence, Alexander said that he made the determination to enter the home out of concern for their safety, and the safety of anyone who may be inside. 

When officers made entry, they encountered Clark, who was the only person who was at the residence at that time. He was taken into custody when it was determined that he had an outstanding warrant, according to testimony. 

Clark allegedly told officers that he did not live in the residence and that the property owner had gone to the store. Defense counsel sought to suppress these statements, as well as the items located during the search. 

While inside the residence, Alexander testified, he discovered items related to the manufacture of methamphetamine. Once the officers made sure no one else was in the structure, Alexander said he returned to the Highland County Justice Center and assisted Det. Sgt. Warner in writing the search warrant, which was later signed by Hillsboro Municipal Court Judge David McKenna. 

Alexander testified that he and another deputy had been to the residence on Dec. 30 and had smelled the chemical odor then but did not make entry.  

On cross-examination, Armintrout asked why Alexander did not make an attempt to enter the home on Dec. 30. Alexander said there was no indication that anyone was at home, and therefore no one in the residence was believed to have been in immediate danger. 

Warner testified that over the years he had responded to the residence on several occasions and one time, in particular, due to a meth lab. Armintrout objected to that statement. Collins said that previous meth activity went toward showing exigent circumstances, and Coss overruled the objection. 

When the search Warrant was obtained, Warner, along with Det. Sgt. Danny Croy, searched the residence, with several items taken into evidence. 

The defense called no witnesses during the hearing.

In his closing statements, Furnish said that officers did not attempt to obtain a warrant prior to entering the residence, and officers were "on a fishing expedition" for a meth lab when they entered the home. 

Collins said that it was not a "fishing expedition" because there was reasonable cause to enter due to the odor and "the danger that children may be present." 

Judge Coss said the issue of the hearing is "the question of the lawfulness of the entry. Contrary to popular belief among the general populous and, unfortunately, members of the bar, the Fourth amendment does not prohibit a search. It prohibits unlawful search." 

Coss said that an issue the attorneys did not argue was that no evidence was offered to show that Clark lived at the residence. He told officers specifically that he did not reside there and did not explain what he was doing there when the property owner was not present.

"For all I know, he could have been a burglar caught in the act," Coss said. "I'm not saying that he was. No explanation has been given (as to why he was there.)"

Because Clark was not a resident, Coss said, Clark did not have an expectation of privacy and overruled the defense motion to suppress. Coss said that even if Clark had a lawful expectation of privacy, "there is evidence of exigent circumstances" which justified the entry. 

A final pretrial for the case has been scheduled for March 14, with a jury trial scheduled for March 22.