[Cite as State v. Nestor , 2016-Ohio-1333.]

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

STATE OF OHIO Appellee

v. DUSTIN NESTOR Appellant C.A. No. 27800

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2014 06 1784 (B)

DECISION AND JOURNAL ENTRY Dated: March 30, 2016

MOORE, Judge. {¶1} Defendant, Dustin Nestor, appeals fr om the judgment of the Summit County

Court of Common Pleas. We affirm.

I. {¶2} On June 18, 2014, Mr. Nestor was stopped by police officers after purchasing Sudafed at a local pharmacy. Thereafter, a can ine sniff of his vehicle was performed, and the canine alerted for the presence of drugs. After a search of his car revealed items that officers suspected were involved in the manufacture of methamphetamine, the officers placed Mr. Nestor under arrest. Due to statements made by Mr. Nest or and his wife after the stop, officers searched Mr. Nestor’s residence, where they located additional items associated with the manufacture of methamphetamine. {¶3} Thereafter, the Summit County Grand Jury indicted Mr. Nestor on the following charges: one count of illegal manufacture of drug s, two counts of illegal assembly or possession2

of chemicals for the manufacture of drugs, and two counts of endangerin g children. Mr. Nestor pleaded not guilty at his arraignment, and he late r filed a motion to suppress evidence. The trial court denied the motion, and Mr. Nestor amended his plea to no c ontest. The trial court found Mr. Nestor guilty and imposed sentence. Mr. Nestor timely filed a notice of appeal, and he now raises one assignment of error for our review.

II. ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN DENYING [MR. NESTOR’S] MOTION TO SUPPRESS. {¶4} In his sole assignment of error, Mr. Nestor argues that the trial court erred in denying his motion to suppress. We disagree. Appellate review of a motion to suppre ss presents a mixed question of law and fact. When considering a motion to suppre ss, the trial court a ssumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, w ithout deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. (Internal citations omitted.) State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

Accord State v. Hobbs , 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6 ( Burnside applied). {¶5} Here, at the suppression hearing, the St ate presented the testimony of police officers involved in stopping Mr. Nestor and s earching his vehicle and residence. Officer Bernard Cirullo of the City of Tallmadge Police Department testified that he was on duty on the evening of June 18, 2014, and he was listening to live feed from the National Precursor Log Exchange (“NPLEx”), which provides the names and driver’s license numbers of those who purchase Sudafed. Mr. Nestor’s name came across the feed for purchasing Sudafed at a local3

CVS. The officer ran Mr. Nestor’s driver’s license number through the department’s LEADS system, which revealed that Mr. Nestor had a su spended driver’s license and a warrant for his

arrest. Officer Cirullo obtaine d Mr. Nestor’s BMV photo and went to CVS to attempt to locate Mr. Nestor. When Officer Cirullo was driving into the CVS parking lot, he recognized Mr. Nestor as the driver of a car that was preparin g to exit the parking lot. The officer stopped Mr.

Nestor and obtained his driver’s license. Officer Cirullo then began investigating whether the warrant was still active, and he further investigated Mr. Nestor’s purchase history of Sudafed.

Officer Cirullo learned that NPLEx indicated that a woman with the same address and last name as Mr. Nestor, who Officer Ciru llo assumed was his wife, had pur chased Sudafed one hour prior

to Mr. Nestor. The officer then called a canine unit to the scene. {¶6} The canine unit arrived within ten minutes , and the canine performed a sniff of Mr. Nestor’s car. The canine alerted to the pa ssenger side of Mr. Nest or’s vehicle while the officer was still awaiting warrant confirmation and was still checking NPLEx purchase information. When the canine alerted, the officers instructed Mr. Nestor to step away from the car. The officers then searched the car. The officers did not locate any narcotics, but they did find the Sudafed that Mr. Nestor had just purchased together with several lithium batteries in the glove box. Based on his experience, Officer Cirullo recognized these items as those used in the manufacture of methamphetamine. The officer read Mr. Nestor his Miranda rights and detained him in the officer’s cruiser. Thereafter, Mr. Nestor indicated that a friend of his had manufactured methamphetamine in his garage in Ak ron. Officer Cirullo maintained that he had an audio recording of his convers ation with Mr. Nestor that occu rred inside of the cruiser. However, the officer had been unable to bring the recording to the suppression hearing.4

{¶7} While the officer was detaining Mr. Nestor , Mr. Nestor’s wife arrived at CVS. The officer learned during the stop that the Nestors had children. Based upon the officer’s concerns regarding the methamphetamine produc tion at the Nestors’ home, Officer Cirullo contacted Officer Dave Christopher Croc kett of the Akron Police Department. {¶8} Officer Crockett testified that, after he received the call from Officer Cirullo, he went to CVS and spoke with the Tallmadge police officers. Officer Crockett learned that Mr.

Nestor had informed the officers that his frie nd had recently manufactured methamphetamine in his garage. Mr. Nestor indicated that he had some chemicals and a “spent” pot from manufacturing methamphetamine in his garage. O fficer Crockett then spoke with Mr. Nestor’s

wife. 1 She admitted to purchasing Sudafed for Mr. Nestor, maintaining that he would hit her if she did not purchase it. Officer Crockett explaine d to Mr. Nestor’s wife that the officers were aware that there was a methamphetamine lab inside her house. Officer Crockett obtained verbal

consent from her to search the Nestors’ house. Officer Crockett did not recall talking to Mr. Nestor after talking to Mr. Nestor’s wife. However, he maintained that Mr. Nestor at no time

refused consent or told him that he could not search the home. {¶9} Thereafter, Officer Crockett left CVS and we nt to the Nestors’ residence. There, officers located a reaction vessel, muriatic acid, and Coleman fuel in the garage, and the officers located Sudafed, residue, snort straws, and a pi ece of cut tubing inside the house. Officer

Crockett maintained that these items were evidence of methamphetamine production. Officer Crockett opined that, even had he not obtained c onsent from Mr. Nestor’s wife to search the home, based upon the information that the officer s had at the time, they would have entered the

1 Officer Crockett stated that he had brough t to the hearing an audio recording of his discussion with Mr. Nestor’s wife. However, the audio was not played at the hearing, and does not appear to have been admitted into evidence.5

Nestors’ home to assure that the meth lab was not active, and to secure anyone that may have been present at the home. {¶10} The defense presented Mr. Nestor’s tes timony at the suppression hearing. When Officer Cirullo stopped him at CVS, he orde red him out of the car and asked for his identification, which Mr. Nestor supplied. After waiting on the cu rb for some time, Mr. Nestor asked Officer Cirullo why he had pulled him over, and the officer asked him if he was aware of a

warrant for his arrest. Mr. Nestor informed him that he was aware that he had a warrant due to his failure to pay a small fine, but it was a “no pickup” order. The officer responded by ordering him back to the curb. Shortly thereafter, a canine unit arrived. An officer informed Mr. Nestor that they were searching his vehicle, and Mr. Ne stor heard the canine officer say something to the dog and tap on the passenger side of the car , as though coaching the dog, and the dog then jumped up on the passenger side of his car. {¶11} Mr. Nestor maintained that the officers began “badgering” him about Sudafed and batteries found in his car, and th ey were alleging that his and his wife’s history of buying Sudafed corresponded. Contrary to Officer Cirullo’s testimony, Mr. Ne stor testified that his wife did not share the surname Nestor, and the a ddress listed on her driver’s license did not correspond with the address listed on his driver’s license. Mr. Nestor maintained that he had

texted his Wife after officers had ordered him out of his car, and shortly thereafter, she arrived at the scene. The officers “barricaded” her and started asking her questions. Sometime after Mr. Nestor had been placed in Officer Cirullo’s cruiser, Officer Crockett approached the cruiser, and

the officer informed him that his Wife had told him what was at the Nestors’ house. Mr. Nestor responded by explicitly refusing to permit officers to search the house. The officer replied that he had consent from his wife. At that point, Mr. Nestor told the officers some items that they6

would find at the house in order to “ease the proc ess” because the officers were going to conduct the search regardless of whether he provided consent. {¶12} During the State’s closing argument, the State maintained that case law pertaining to consent of a co-occupant indi cated that, to suppress the evidence against Mr. Nestor for the items found in his home, where consent was obtai ned from his co-occupant wife, Mr. Nestor had to expressly refuse or revoke consent. The St ate maintained that Mr. Nestor had not done so pursuant to the officers’ testimony. The following exchange then occurred: THE COURT: Can’t we clear that up by the audiotape? [THE STATE]: It could, absolutely, Judge. THE COURT: How come nobody presented the audiotape? [THE STATE]: Presently the State doesn’t have it in its possession. Apparently there’s some sort of problem with downloading it. Officer Cirullo was trying to download it to an e-mail address earlier this morning. {¶13} As part of the defense’s closing argument, defense counsel maintained: We have a situation where Mr. Nestor’s at the scene and telling the officer that, “No, you can’t search my home,” and the wife is saying, “Yes,” but yet the State says there’s audio and video available. Well, I filed a discovery motion, Your Honor . And this case started back in June and here we are on October 24th and that information still has not been provided to me, nor did they come to the suppression hearing with that. So what the court has to base its decision on today is a he-said she-said and in that particular instance Mr. Nestor should be given the benefit of the doubt because until he’s convicted of this he remains cloaked in innocence. The officers have no more authority in spite of their training and know ledge. It’s not a matter of whether or not – and I by no[] means am calling the officers liars, but I’m not also calling Mr. Nestor a liar either. (Emphasis added.) Mr. Nestor did not move to continue the suppression proceedings so that he could review the recordings. {¶14} In its journal entry, the trial court determined that much of Mr. Nestor’s testimony was not credible, finding in part that:7

[Mr. Nestor] further testified that he explicitly refused to give Officer Crockett consent to search his house, but instead told him, “F*** off, you ain’t searchin’ my house.” He also testified that the officer asked what he would find at the house and [Mr. Nestor] then told him what evidence he would find there. The Court gives no weight to [Mr. Nestor’s] strangely inconsistent testimony that he first explicitly refused to give consent to search, so as to even tell the officer to f*** off, but then also voluntarily told the officer of self-incriminating evidence that could be found at the residence. {¶15} The trial court denied the motion to suppre ss, and, with respect to the search of the house, the court concluded that the search was justified based upon consent and exigent

circumstances. {¶16} On appeal, Mr. Nestor challenges only the propriety of the search of his house, specifically whether the officers obtained appropriate consent to search and whether exigent circumstances existed to justify a search wit hout a warrant. We limit our discussion accordingly, and we address only Mr. Nestor’s argument pertaining to consent, as it is dispositive of the issue of the propriety of the search of the residence. {¶17} The Fourth Amendment to the United States Constitution and Article I, Section 14, of the Ohio Constitution prohibit law enfo rcement officers from conducting unreasonable

and warrantless searches and seiz ures. Courts are required to exclude evidence obtained by

means of searches and seizures that are found to violate the Fourth Amendment. Mapp v. Ohio , 367 U.S. 643, 657 (1961). A warrantless search “is ‘p er se unreasonable * * * subject only to a few specifically established and well-delineated exceptions.’” Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973), quoting Katz v. United States , 389 U.S. 347, 357 (1967). One such exception is consent. State v. Hetrick , 9th Dist. Lorain No. 07CA009231, 2008-Ohio-1455, ¶ 21;

State v. Price , 134 Ohio App.3d 464, 467 (9th Dist.1999). “The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with8

a co-occupant who later objects to th e use of evidence so obtained.” Georgia v. Randolph , 547 U.S. 103, 106 (2006), citing Illinois v. Rodriguez , 497 U.S. 177 (1990). {¶18} Here, on appeal, in support of his contenti on that the officers did not have proper consent to search the residence, Mr. Nestor first maintains that his wife’s consent to search the house was not voluntary. However, this argument was not contained in Mr. Nestor’s motion to suppress, nor was it advanced at the suppression hear ing. Instead, in the tr ial court, Mr. Nestor maintained that, because he was present at CVS “when his wife gave consent[,]” the officers were required to additionally obtain his consent to search the home pursuant to his interpretation of the United States Supreme Court’s holding in Randolph . Accordingly, we decline to review Mr. Nestor’s argument pertaining to the voluntariness of his wife’s consent, as it is being raised for the first time on appeal. See Xenia v. Wallace , 37 Ohio St.3d 216, 218 (1988) (defendant

must make clear the basis of hi s challenge in his motion to suppr ess in order to preserve the challenge for appeal), and State v. Smith , 9th Dist. Summit No. 21069, 2003-Ohio-1306, ¶ 11-15 (trial court may permit defenda nt to supplement motion to suppress at the hearing on that motion). {¶19} Mr. Nestor further appears to argue that the officers could not search the home

because he denied them consent to search. Ho wever, the trial court discounted Mr. Nestor’s testimony that he explicitly refused to consent to the search. Further, although there purportedly existed audio recording of statements made by Mr. Nestor in Officer Cirullo’s cruiser, and defense counsel maintained that the recording wa s not provided in discovery, it does not appear that defense counsel lodged an objection to the tr ial court determining this issue on the basis of the testimony presented, absent the recording. Instead, it appears from the portion of defense9

counsel’s closing argument quoted above that de fense counsel advised the court that it should proceed to decide the suppression motion on the basi s of the testimony presented at the hearing. {¶20} Moreover, it was not disputed at the hearing that Mr. Nestor’s wife providedconsent to search the home or that she was a co-occupant of the home. The consent of a cooccupant to search a home gene rally relieves officers of the re quirement to obtain a warrant, except as provided in Randolph. See Fernandez v. California, 134 S.Ct. 1126, 1129 (2014) (characterizing Randolph as a narrow exception to the rule that officers may search a jointly occupied premises if one of the occupants consents)

. In Randolph, the United States Supreme Court held that “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Randolph, 547 U.S. at

122-23. In reaching this result, the Supreme Court l ooked to “widely shared social exp ectations” in assessing the reasonableness of consent to search a cohabited dwelling. Id. at 111. The Court concluded that “it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitati on was a sufficiently good reason to enter when a

fellow tenant stood there saying, ‘stay out.’ ” (Emphasis added.) Id. at 113. The Supreme Court acknowledged that it was “drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s pe rmission does not suffice for a reasonable search, whereas the potential objector , nearby but not invited to take part in the threshold colloquy , loses out.” (Emphasis added.) Id. at 121. However, this case differs from Randoph in that, here, although Mr. Nestor and his wife were both present at the location of a

stop , in Randolph , the co-occupants were present at the residence that was to be searched. Randolph at 107. Further, here, the tr ial court did not find credible Mr. Nestor’s testimony that he refused the search, whereas, in Randolph , the facts as recited by the Court included that the10

defendant “unequivocally refu sed” permission for officers to search the house. Id. It is unclear in Mr. Nestor’s brief whether he is attempting to rely on the Randolph exception. However, to the extent that Mr. Nestor is relying on Randolph , he has not developed an argument as to why it should apply to the facts of this case, and we decline to construct on argument on his behalf. See App.R. 16(A)(7). {¶21} Accordingly, we cannot say that the trial co urt erred in concluding that the search of the Nestors’ house was justified on the basis of consent. Therefore, we need not address whether there existed exigent circumstances which would have also provided justification for the

search.

III. {¶22} Mr. Nestor’s assignment of error is overrule d. The judgment of the trial court 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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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. 30.11

Costs taxed to Appellant.

CARLA MOORE FOR THE COURT

WHITMORE, P. J. CELEBREZZE, J. CONCUR. (Celebrezze, J., of the Eighth District Court of Appeals, sitting by assignment.)

APPEARANCES: KRISTEN KOWALSKI, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.