[Cite as State v. Armbruster,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26645

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MICHAEL J. ARMBRUSTER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 12 3293 (A)

DECISION AND JOURNAL ENTRY

Dated: July 17, 2013

WHITMORE, Judge.

{¶1} Defendant-Appellant, Michael Armbruster, appeals from the judgment of the

Summit County Court of Common Pleas, denying his motion to suppress. This Court affirms.

I

{¶2} On November 21, 2011, the City of Norton Police Department received a tip that

the occupants of Room 315 in the Berlin Motel were actively cooking methamphetamine.

Officer John Canterbury responded to the motel and, when he approached Room 315, smelled a

strong chemical odor that he associated with methamphetamine. After unsuccessfully attempting

to get the occupants of the room to open the door, Officer Canterbury kicked in the door. Once

inside, he observed a working methamphetamine lab in plain view. He then arrested the room’s

two occupants, Armbruster and another individual, and evacuated the motel’s tenants for safety

reasons. 2

{¶3} A grand jury indicted Armbruster on each of the following counts: (1) illegal

manufacturing of methamphetamine; (2) illegal assembly or possession of chemicals for the

manufacture of drugs; and (3) aggravated trafficking in drugs. Each count also contained an

attendant forfeiture specification. Armbruster initially pleaded not guilty to the charges and filed

a motion to suppress. The trial court held a hearing on the motion and later denied it. After the

court denied Armbruster’s motion, he withdrew his not guilty plea and pleaded no contest to the

charge of illegal manufacturing and the forfeiture specification linked to that charge. The State

dismissed the remaining two charges in exchange for Armbruster’s plea. The court then

sentenced Armbruster to four years in prison.

{¶4} Armbruster now appeals and raises one assignment of error for our review.

II

Assignment of Error

THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE SEIZED EVIDENCE.

{¶5} In his sole assignment of error, Armbruster argues that the trial court erred by

denying his motion to suppress. We disagree.

{¶6} The Ohio Supreme Court has held that:

[a]ppellate review of 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. State v. Mills,

(1992). Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning,

(1982). 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. McNamara,

(4th Dist. 1997). 3

State v. Burnside,

,

, ¶ 8. Accord State v. Hobbs,

,

(Burnside applied). Accordingly, this Court reviews the trial

court’s factual findings for competent, credible evidence and considers the court’s legal

conclusions de novo. State v. Conley, 9th Dist. Lorain No. 08CA009454,

,

citing Burnside at ¶ 8.

{¶7} The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio

Constitution, Article I, Section 14. “[A] hotel room is a location in which a citizen has a valid

expectation of privacy, ordinarily requiring a warrant to justify a police search.” State v.

Reynolds, 9th Dist. Summit No. 22017,

. “[A] search conducted without a

warrant issued upon probable cause is ‘per se unreasonable * * * subject only to a few

specifically established and well-delineated exceptions.’” Schneckloth v. Bustamonte,

(1973), quoting Katz v. United States,

(1967). One such exception is

a search based upon probable cause and the existence of exigent circumstances. See State v.

Price,

(9th Dist. 1999), quoting State v. Akron Airport Post No. 8975,

(1985). A “narrower subset” of the exigent circumstances exception is the

emergency aid exception. See State v. Gooden, 9th Dist. Summit No. 23764,

. The emergency aid exception “allows the police ‘to enter a dwelling without a warrant and

without probable cause when they reasonably believe, based on specific and articulable facts,

that a person within the dwelling is in need of immediate aid.’” (Emphasis added.) State v.

Baker, 9th Dist. Summit No. 23713,

, ¶ 6, quoting Gooden at ¶ 6.

{¶8} “The need to protect or preserve life or avoid serious injury is justification for

what would be otherwise illegal absent an exigency or emergency.” Brigham City, Utah v. 4

Stuart,

(2006), quoting Mincey v. Arizona,

(1978). Accord

State v. Dunn,

,

, syllabus.

If 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.

R.C. 2933.33(A). “This Court has held that clandestine methamphetamine laboratories pose a

per se danger to occupants, officers, and the community, and law enforcement officers need only

a reasonable belief that a structure contains a methamphetamine laboratory to justify a search

under the emergency-aid exception set forth in R.C. 2933.33(A).” State v. Timofeev, 9th Dist.

Summit No. 24222,

, ¶ 26. Probable cause, therefore, is not required for a

warrantless entry if officers have a reasonable belief that methamphetamine laboratory is being

operated at a particular location. State v. White,

,

(9th

Dist.). “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.” Timofeev at ¶ 26.

{¶9} Officer Canterbury testified that, on the afternoon of November 21, 2011, his

chief asked him to investigate a tip the department had received. Specifically, the department

had received a tip that the occupants of Room 315 at the Berlin Motel were actively cooking

methamphetamine. Officer Canterbury described the Berlin Motel as a motel whose rooms are

all single-story, ground level rooms that are for rent on either a short-term or long-term basis.

He testified that the police department frequently received complaints about drug activity 5

occurring at the motel and that he was aware that other officers had responded to the motel in the

past to investigate the possible production of methamphetamine.

{¶10} As Officer Canterbury approached Room 315, he testified that he smelled a strong

chemical odor, consistent with the odor that emanates from an active methamphetamine lab.

Officer Canterbury explained that during his 23 years of experience on the force he had received

training in methamphetamine labs and had personally responded to approximately 50 calls for

methamphetamine manufacturing or assembly. Officer Canterbury gave a detailed description of

the smell associated with methamphetamine production and testified that the odor he smelled

outside of Room 315 “was indicative of a working meth lab.”

{¶11} After he smelled the strong chemical odor coming from Room 315, Officer

Canterbury went to the motel office and procured a key for the room. He testified that he then

attempted to peaceably gain entry to the room without the key by asking its occupants for a

cigarette. When it became clear that the occupants would not open the door, Officer Canterbury

identified himself as a police officer and ordered the room’s occupants to let him in. Still, the

occupants refused to open the door. At that point, Officer Canterbury testified that he tried to

use the room key to open the door. Each time he unlocked the door, however, someone inside

the room would relock it from the inside. Officer Canterbury ultimately decided to gain entry to

the room by kicking in the door.

{¶12} The defense presented one witness at the suppression hearing. Minesh Patel

testified that he was the son of the owner of the Berlin Motel and that the motel had rented a

room to Armbruster for approximately two weeks before the day the police arrived. Patel

testified that he never noticed any suspicious smells when he walked by Room 315. He 6

admitted, however, that he did not have any training in methamphetamine recognition. He also

admitted that, during Armbruster’s stay, he never went into Armbruster’s room.

{¶13} Armbruster argues that Officer Canterbury lacked probable cause to enter Room

315 because there was no evidence of an ongoing exigency. Armbruster argues that the State

failed to present any evidence as to the identity of the alleged caller who provided the department

with information about his room. Further, he argues that, in the two weeks he stayed at the

Berlin Motel, no one had noticed or complained about any chemical smell coming from his

room.

{¶14} “Anonymous tips, when corroborated by other factors, events or circumstances,

may provide the requisite reasonable grounds to justify [a] warrantless entry.” Baker, 2009-

Ohio-2340, at ¶ 7. Although Officer Canterbury did not know the identity of the caller who

provided the department with a tip about Room 315, he testified that the caller gave the police

information there was an actively cooking lab in that room and, when he arrived outside the

room, he smelled the strong chemical odor he associated with an actively cooking lab. At that

point, therefore, the anonymous tip was corroborated by Officer Canterbury’s own investigation.

{¶15} Officer Canterbury was not required to have probable cause in order to justify a

warrantless entry into Room 315. Instead, his entry was justified so long as he had “a reasonable

belief that [the room] contain[ed] a methamphetamine laboratory * * *.” Timofeev, 2009-Ohio-

3007, at ¶ 26. Accord White,

,

. Officer Canterbury

testified that he received training in methamphetamine labs and had personally responded to

approximately 50 methamphetamine-related calls. He further testified that when he approached

Room 315, he smelled the strong chemical odor “indicative of a working meth lab.” Moreover,

Officer Canterbury testified that he responded to the motel room (1) based on a tip that its 7

occupants were actively cooking methamphetamine, and (2) knowing that his department had

responded to the motel in the past due to complaints about drug activity. Officer Canterbury’s

testimony supports the conclusion that he had a reasonable belief Room 315 contained a

methamphetamine lab prior to entering it.

{¶16} Although Patel testified that he never noticed a suspicious smell when he was

around Room 315, he admitted that he was not trained to recognize the smell of

methamphetamine. He also admitted that he never went inside Armbruster’s room during his

two week stay. To the extent that Patel’s testimony conflicted with Officer Canterbury’s, the

trial court was in the best position to resolve the conflict. See State v. Pamer,

(9th Dist. 1990) (“When there is a conflict in the testimony of witnesses, * * * it is for

the trier of fact to determine the weight and credibility to be given such evidence.”). The trial

court specifically found in its suppression ruling that Officer Canterbury’s testimony was

credible.

{¶17} The record contains competent, credible evidence in support of the trial court’s

decision that an ongoing emergency justified Officer Canterbury’s warrantless entry into

Armbruster’s motel room. As previously noted, “[t]he 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.”

Timofeev at ¶ 26. Officer Canterbury’s testimony supports the conclusion that an active

methamphetamine lab existed in Room 315. Accordingly, the trial court properly denied

Armbruster’s motion to suppress. Armbruster’s sole assignment of error is overruled. 8

III

{¶18} Armbruster’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.

BETH WHITMORE FOR THE COURT

HENSAL, J. CONCURS.

BELFANCE, P. J. CONCURRING IN JUDGMENT ONLY.

{¶20} I concur in the majority’s judgment. The facts of this case establish that Officer

Canterbury had probable cause to believe that there was a methamphetamine lab in Mr. 9

Armbruster’s hotel room and exigent circumstances existed, thus warranting immediate action.

Therefore, the warrantless entry in this case was permissible under the Fourth Amendment.

{¶21} As noted in the main opinion, a warrantless search is per se unreasonable under

the Fourth Amendment subject to several exceptions. California v. Acevedo,

(1991). One such exception exists when there is probable cause coupled with the existence of

exigent circumstances. Kirk v. Louisiana,

(2002). The determination of

whether exigent circumstances exist requires examination of the factual circumstances of each

particular case. Missouri v. McNeely, ___ U.S. ___,

(2013). Thus, I

disagree with the view that “the suspected production of methamphetamine constitutes per se

exigent circumstances.” State v. Sandor, 9th Dist. Summit No. 23353,

.

Notably, the Sixth Circuit Court of Appeals has rejected the notion that the suspected production

of methamphetamine constitutes a per se exigent circumstance. See United States v. Atchley,

(6th Cir. 2007), fn. 6 (“We do not intend to say that there should be a per se rule

that whenever evidence of a methamphetamine laboratory is apparent, there is always exigency.

* * * [P]articularly important in this case is the fact that because the laboratory was in a motel,

the possibility of explosion posed a great risk to the numerous other occupants in the building.

Further, many hotels have a central ventilation system that would allow fumes to easily permeate

the rest of the building. * * * [T]he defendant’s * * * laboratory posed a greater threat to human

lives than if the laboratory had been in a rural area.”).

{¶22} Sandor correctly examined whether there was both probable cause and exigent

circumstances thus supporting the warrantless search. In examining the contours of the exigent

circumstances exception, the court referenced factors relied upon by numerous federal courts.

Sandor at ¶ 8-12. It also relied upon State v. Pape, 11th Dist. Ashtabula No. 2004-A-0044, 10

. In Pape, the Eleventh District Court of Appeals considered whether exigent

circumstances and probable cause existed to support a warrantless search. Id. at ¶ 18-19. Based

upon the specific facts of the case, the Pape court concluded that exigent circumstances and

probable cause were present. Id. at ¶ 22, 26. In relying on Pape, the Sandor court suggested that

Pape stands for the proposition that the danger to occupants, officer and the community

associated with the suspected production of methamphetamine constitute per se exigent

circumstances. Sandor at ¶ 10. It then concluded that, if police officers had probable cause to

believe that a methamphetamine lab was operating on the premises, then exigent circumstances

existed to justify the search of the residence. Id. However, Pape did not ever hold that the

suspected production of methamphetamine constitutes per se exigent circumstances. Rather, the

analysis in Pape reflects the appellate court’s consideration of the specific facts present in that

case and their application to multiple factors indicating the presence of exigent circumstances.

Id. at ¶ 23-27.

{¶23} Exigent circumstances exist when a reasonable person would believe that the

delay to secure a warrant is unacceptable under the circumstances. See United States v. Purcell,

(6th Cir. 2008). Inherent in that question is the necessity to look at the facts of

a given case; what may be an exigency requiring immediate action under some circumstances

may not be an exigency in others. See McNeely,

. The circumstances of this

case would lead a reasonable person to believe that a delay to secure a warrant would be

unacceptable given the very strong odor emanating into the hotel hallway from behind a closed

hotel door, the risk of explosion, and the close-quarters of the hotel, thus posing a risk to others.

Under other circumstances, even if there was probable cause to believe that a methamphetamine

lab existed in a home, exigent circumstances might not be present thereby justifying a 11

warrantless entry. For example, if Officer Canterbury detected the smell of methamphetamine

coming from a house at the center of a five-acre lot, exigency would not necessarily exist. See

Atchley,

. A per se exigency rule is incompatible with the principle that

exceptions to the warrant requirement are limited and narrow and must be determined on a case-

by-case basis through examination of the totality of the facts and circumstances. Even where

probable cause exists, our Constitution demands the procurement of a warrant and that is the

very essence of the Fourth Amendment. The creation of a per se rule of exigency without

examining the particular facts of a case to determine whether the exigency in fact exists, simply

allows warrantless entry upon probable cause. However, the point of the exigent circumstances

exception to the warrant requirement is to examine whether an exigency is truly present

notwithstanding the existence of probable cause.

{¶24} I also disagree with this Court’s holding that “law enforcement officers need only

a reasonable belief that a structure contains a methamphetamine laboratory to justify a search

under the emergency-aid exception set forth in R.C. 2933.33(A).” State v. Timofeev, 9th Dist.

Summit No. 24222,

, ¶ 26, citing State v. White,

, 2008-

Ohio-657, ¶ 19-20 (9th Dist.). Notably, Timofeev relies on the lead opinion in White, treating it

as a holding of a majority of the court when it was not. The lead opinion in White suggests that

Sandor was an emergency-aid case despite Sandor not mentioning the emergency-aid doctrine at

any point. Nevertheless, the lead opinion interprets Sandor’s references to the dangers posed by

methamphetamine labs as implicit evidence of an emergency-aid analysis. See

.

However, I believe in this is an incorrect conclusion given the more limited application of the

emergency aid doctrine as well as the Sandor court’s express reference to precedent concerning 12

the exigent circumstances exception to the warrant requirement and not the emergency aid

doctrine. See Sandor at ¶ 8-12.

{¶25} As noted in the main opinion, emergency aid is a narrower subset of the exigent

circumstances exception to the warrant requirement and is based on the idea that an officer must

immediately act to preserve life. See Brigham City v. Stuart,

(2006), quoting

Mincey v. Arizona,

(1978) (“One exigency obviating the requirement of a

warrant is the need to assist persons who are seriously injured or threatened with such injury.

‘The need to protect or preserve life or avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency.’” (Internal quotations and citations

omitted.)). While there is no doubt that methamphetamine labs pose serious risks, the mere

suspected existence of a lab does not support the conclusion that officers must act immediately in

order to assist a person who is seriously injured or imminently threatened with injury.1 For

example, if police, while looking through a window, saw a person actively cooking

methamphetamine while a child was near the flame watching, such would satisfy the need for

immediate action to protect the child. Many illegal activities are dangerous to those performing

them, but those general and potential dangers do not satisfy the narrow factual contours of the

emergency aid doctrine. In this particular case, there were no facts presented suggesting the

need to rush to the aid of another in order to preserve life and limb.

{¶26} Finally, this Court’s reliance on R.C. 2933.33(A) is also problematic. It is

apparent that the statute reflects the General Assembly’s concern with the dangers of

methamphetamine labs. It may have also been enacted for the purpose of protecting those who

1 Notably, in Brigham City a police officer witnessed a person getting beaten.

. Under those circumstances, the United States Supreme court upheld the warrantless entry based upon the emergency aid doctrine.

. 13

respond to methamphetamine labs from liability. While it is the province of the legislature to

enact laws, it is the province of the judiciary to interpret and apply the law. Thus, the General

Assembly cannot legislate what constitutes exigent circumstances with respect to

methamphetamine labs, any more than it can direct a court of law as to what constitutes exigent

circumstances in some other context. Marbury v. Madison,

(1803) (“Certainly

all those who have framed written constitutions contemplate them as forming the fundamental

and paramount law of the nation, and consequently the theory of every such government must

be, that an act of the legislature, repugnant to the constitution, is void. * * * It is emphatically

the province and duty of the judicial department to say what the law is.”). The determination of

whether a warrantless entry passes constitutional muster is the province of the judiciary and the

existence of probable cause and exigent circumstances are part and parcel of that inquiry.

{¶27} Given all of the above, I believe that the warrantless entry was permissible given

the circumstances of this case; however, I respectfully disagree with the analysis contained in the

main opinion.

APPEARANCES:

THOMAS C. LOEPP, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.