[Cite as State v. Hambleton, 2017-Ohio-7561.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

VS. 

BRETT L. HAMBLETON 

 DEFENDANT-APPELLANT 

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CASE NO. 16 CO 0028 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Columbiana County, 

Ohio 

Case No. 2015 CR 433 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Robert Herron 

Columbiana County Prosecutor 

Attorney Tammie Riley Jones 

Assistant Prosecutor 

105 S. Market Street 

Lisbon, Ohio 44432 

For Defendant-Appellant Attorney Peter Horvath 

P.O. Box 501 

Lisbon, Ohio 44432 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 

 

 Dated: September 11, 2017 
[Cite as State v. Hambleton, 2017-Ohio-7561.]

DeGENARO, J. 

{¶1} Defendant-Appellant, Brett L. Hambleton, appeals the trial court's 

judgment denying Hambleton's motion to suppress. As Hambleton's assignment error 

is meritless, the judgment of the trial court is affirmed. 

{¶2} Hambleton was indicted for illegal cultivation of marijuana, tampering 

with evidence and obstructing official business. Hambleton filed a motion to dismiss. 

This was amended to a motion to suppress five days later. Both pleadings contended 

that a search warrant was required before police entered Hambleton's property. At 

the beginning of the hearing the parties agreed that the only issue being heard was 

the initial entry onto the premises. 

{¶3} The State presented the testimony of Detective Brett Grabman who 

was assigned full-time to the Columbiana County Drug Task Force and testified that 

he was participating in a marijuana eradication exercise. His function was to serve as 

a "ground asset." He received directions from a helicopter flying above in order to 

investigate potential marijuana growth. 

{¶4} Grabman was notified that marijuana was in plain sight of the helicopter 

off of Stagecoach Road, and he was directed to a wooded area behind a green 

house. Initially there was confusion as to the location as officers passed the green 

house; the helicopter informed them that they passed the landmark. They went back 

to the green house and pulled into the driveway. Some officers parked on 

Stagecoach, and some parked in the driveway. The reason they did this "was 

because that was the landmark given and that was basically the quickest access to 

get to this wooded area." 

{¶5} Grabman observed two men working on a deck that did not live at the 

house. Other agents tried to make contact with the residents of the house but nobody 

answered. It was later discovered that Hambleton was not the resident of this home 

on Stagecoach but Grabman later learned that Hambleton resided at an address on 

Calcutta Smith-Ferry Road. The wooded area where the marijuana was spotted was 

not near the roadway but surrounded by several homes in a very close proximity. 

{¶6} Grabman and several others from various agencies, dressed in their 

respective uniforms, proceeded toward the wooded area. As they were walking in an 
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open field to the wooded area, one of the officers yelled "runner." The officers formed 

a perimeter and shouted "Police. Come out of there. Show us your hands." Grabman 

testified that the individual did not comply with their commands and that he visually 

identified the runner as a white male in his 50's. Grabman repeated that they had no 

idea who owned the property prior to this situation. 

{¶7} Once they reached the wooded area, Grabman observed marijuana 

plants and Hambleton, who looked busy like "he was doing something." 

{¶8} Suddenly Grabman observed a very large fire with flames over 20 feet 

in the air. Concerned for Hambleton's safety, Grabman ordered him to stop and "get 

away." Grabman later discovered a gas can next to the marijuana plants. Grabman 

observed Hambleton throwing plants onto the fire. He confronted Hambleton and 

performed a take-down maneuver on him and got him away from the fire. Hambleton 

stated to Grabman, with no prompting, that his wife had no knowledge of the 

marijuana and "that it was his and his medical supply." Hambleton acknowledged 

seeing the helicopter. 

{¶9} Grabman estimated that Hambleton's house was several hundred feet 

from the wooded area, as was the green house. He stated, "You had to cross a field 

almost on all sides of it. It did not appear to be anybody's yard." 

{¶10} On cross-examination, Grabman admitted that he later learned that the 

wooded area was located on Hambleton's property, and he had no search warrant. 

Grabman indicated that did attempt to make contact with the property owner but had 

no success. He stated that if the property owner had refused consent that he would 

have gotten a search warrant. 

{¶11} On redirect Grabman stated that in his experience individuals will go 

into areas not owned by them and plant marijuana. Had Grabman not witnessed 

Hambleton burning the marijuana plants there would "have been no way to prove 

whose property this was, whose plants these were, I would have had no case." 

{¶12} Hambleton's motion to suppress was denied, and he entered a no 

contest plea to the three counts contained in the indictment. Hambleton was 

sentenced to a total of twelve months in a state correctional facility, which the trial 
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court stayed pending this appeal. 

{¶13} In his sole assignments of error, Hambleton asserts: 

In the absence of a search warrant, a physical intrusion onto the 

defendant's land is unlawful. 

{¶14} "Appellate review of a motion to suppress presents a mixed question of 

law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 

71, ¶ 8. Because 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. 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.

{¶15} "The Fourth Amendment to the United States Constitution and Section 

14, Article I of the Ohio Constitution secure an individual's right to be free from 

unreasonable searches and seizures." State v. Telshaw, 195 Ohio App.3d 596, 2011-

Ohio-3373, 961 N.E.2d 223, ¶ 12 (7th Dist.). "When police conduct a warrantless 

search, the state bears the burden of establishing the validity of the search. Searches 

and seizures without a warrant are 'per se unreasonable' except in a few well-defined 

and carefully circumscribed instances." (Internal citations omitted) State v. Hawkins, 

7th Dist. No 16 CO 0014, 2017-Ohio-715, ¶ 16. If the Fourth Amendment does not 

protect an area or item, it is not necessary to determine whether an exception to the 

warrant requirement applies. For example, there is no recognized privacy expectation 

in an open field outside a residence. See Oliver v. United States, 466 U.S. 170, 180–

181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). 

{¶16} Fourth Amendment protections extend not only to a person's home but 

to the curtilage surrounding it. Id. At common law, curtilage is the area which extends 

the activity associated with the "sanctity of a man's home and the privacies of life." Id. 

This Court recently stated there are four factors to consider in determining whether a 

space is considered part of the home's curtilage: "(1) the proximity of the area to the 

home; (2) whether the area is included within an enclosure surrounding the home; (3) 
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the nature of the uses to which the area is put; and (4) the steps taken to protect the 

area from observation by passersby." State v. Albright, 7th Dist. No 14 MA 0165, 

2016-Ohio-7037, ¶ 25. 

{¶17} However, there is no recognized privacy expectation in an open field 

outside a residence. Oliver, supra, 180–181. In such cases, there is no search 

because the police can observe the item without a physical intrusion into a 

constitutionally protected area. State v. Harris, 98 Ohio App.3d 543, 547, 649 N.E.2d 

7 (8th.Dist 1994). 

{¶18} Hambleton concedes that police did not need a warrant for their actions 

in the helicopter, but contends that once marijuana was suspected a search warrant 

was required. The State responds that a warrant was not required on the basis of the 

open fields doctrine. 

{¶19} The Fifth District recently decided a case with nearly identical facts. In 

State v. Woolley, 5th Dist. No. 16-COA-003, 2017-Ohio-576, police seized marijuana 

plants from a wooded area and from potted marijuana near the residence. 

In this case, the officers' decision to approach appellant's residence 

arose from the spotting of marijuana plants from the air. Air surveillance 

generally does not require a warrant. State v. Little, 183 Ohio App.3d 

680, 2009–Ohio–4403, 918 N.E.2d 230, ¶ 22 (2nd Dist.), appeal 

dismissed, 125 Ohio St.3d 1458, 2010–Ohio–2753, 928 N.E.2d 

735. Marijuana plants spotted from a helicopter may be held to be 

within "plain view." See, United States v. Perry, 95 Fed.Appx. 598, 602 

(5th Cir.2004). Whether the plants were in an "open field" or within the 

curtilage of the home, though, affects the analysis, as it did for the trial 

court in the instant case. See, State v. Jones, 6th Dist. Lucas Nos. L–

00–1231, L–00–1232, L–00–1233, 2003–Ohio–219, ¶ 88. Here, the trial 

court allowed the evidence of the growing marijuana in the woods but 

suppressed the potted marijuana because the latter was within the 

curtilage of the residence. 
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The helicopter view alone does not support entry upon appellant's 

property where he has a reasonable expectation of privacy. "While 

warrantless aerial observations may be permissible, 

warrantless seizures without exigent circumstances are not 

permissible." (emphasis in original) State v. Vondenhuevel, 3rd Dist. 

Logan No. 8–04–15, 2004–Ohio–5348, ¶ 16, citing State v. Wangul, 8th 

Dist. No. 79393, unreported (Feb. 14, 2002) and State v. Staton, 2d. 

Dist. No. 90–CA–62, unreported (Mar. 15, 1991). Plain view alone is not 

enough to justify the warrantless seizure of evidence, although 

"[i]ncontrovertible testimony of the senses that an incriminating object is 

on premises belonging to a criminal suspect may establish the fullest 

possible measure of probable cause." Id., citing Coolidge v. New 

Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). 

Even where the object is obviously contraband, the U.S. Supreme 

Court has repeatedly "enforced the basic rule that the police may not 

enter and make a warrantless seizure." Id. 

The first physical entry by law enforcement onto the premises was 

driving down the driveway of appellant's residence. We have previously 

found officers are permitted to enter upon the driveway of a house and 

walk up to the front door to speak to occupants about complaints that 

they were growing marijuana in the garage. See, State v. Schorr, 5th 

Dist. Fairfield No. 13–CA–45, 2014–Ohio–2992, ¶ 26, citing State v. 

Cook, 5th Dist. Muskingum Nos. 2010–CA–40, 2010–CA–41, 2011–

Ohio–1776, ¶ 67. 

Also, the officers' entry into the wooded area away from the home is not 

a constitutional violation. The marijuana growing in the woods is subject 

to the open-fields doctrine first enunciated by the United States 

Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 

68 L.Ed. 898 (1924), wherein the court found that even though there 
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had been a trespass by police officers, no illegal search or seizure 

occurred because the Fourth Amendment protection afforded to people 

in their "persons, homes, papers, and effects" is not extended to 

"open fields." Id. at 59. Government intrusion upon open fields is not an 

"unreasonable search" as proscribed by the Fourth Amendment. State 

v. Paxton, 83 Ohio App.3d 818, 824, 615 N.E.2d 1086 (6th Dist.1992), 

citing Oliver v. U.S., 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 

(1984). 

Woolley, ¶ 25-28. 

{¶20} Applying the Albright factors, the wooded area cannot be considered 

curtilage. The wooded area was hundreds of feet away from Hambleton's home. The 

area was not included within an enclosure surrounding the home. There was no use 

of the wooded area for any designated purpose, and no steps were taken to protect 

the area from observation. As such, there was no expectation of privacy in the 

marijuana growing in the woods, which was properly subject to warrantless seizure. 

Accordingly, Hambleton's sole assignment of error is meritless and the judgment of 

the trial court is affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.