[Cite as State v. Dennison, 2016-Ohio-4607.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

JACKSON COUNTY 

STATE OF OHIO, : 

 Case No. 16CA1 

 Plaintiff-Appellant, : 

v. : DECISION AND 

 JUDGMENT ENTRY 

ROGER DENNISON, : 

 Defendant-Appellee. : RELEASED: 6/23/2016 

APPEARANCES: 

Justin Lovett, Jackson County Prosecuting Attorney, and Pat Story, Jackson County 

Assistant Prosecuting Attorney, Jackson, Ohio, for appellant. 

C. Michael Moore, Jackson, Ohio, for appellee. 

Harsha, J. 

{¶1} The State of Ohio appeals the trial court’s judgment that granted Roger 

Dennison’s motion to suppress evidence on the grounds that the investigating officer 

did not articulate facts that would create a reasonable basis for the officer to expand 

the initial scope of the search. The state does not contest the trial court’s factual 

findings, but instead argues that Dennison abandoned the property in question and no 

longer retained a reasonable expectation of privacy in it at the time of the search. 

Dennison argues that the state never raised an “abandonment” argument in the trial 

court and is raising it for the first time in this appeal. 

{¶2} We agree with Dennison. The state has forfeited the argument that 

Dennison abandoned the property. The state did not raise that issue during the trial 

court proceedings and may not raise the issue for the first time on appeal. We overrule 

the state’s sole assignment of error and affirm the trial court’s judgment. 
Jackson App. No. 16CA1 2 

I. FACTS 

{¶3} At the suppression hearing the investigating police officer, Brett Hinsch, 

testified about the traffic stop. Hinsch stated that he and another officer were patrolling 

the streets when they encountered a vehicle parked partly in the roadway. When they 

stopped to investigate, the driver provided a paper photocopy of a Florida driver’s 

license and told the officers he was waiting on his cousin who was in the house across 

the street. The officers asked the driver several times for the cousin’s name, but the 

driver was not able to answer. The officers noted that the driver was Hispanic and 

concluded that there may be a language barrier or it was also possible that the driver 

was being deceitful about something and they should investigate further. 

{¶4} Hinsch decided to verify whether someone in the house actually knew the 

driver. He walked over to the house while the other officer remained with the driver. A 

woman answered the door and in response to Hinsch’s question, told the officer she 

did not know the driver. She invited Hinsch into her living room and introduced him to 

her husband who was sitting there. Hinsch asked them about the driver and both of 

them look confused. 

{¶5} At that point Dennison walked into the living room from the kitchen and 

told Hinsch that he knows the driver. Hinsch asks Dennison, “Who are you?” and 

Dennison replies, “I’m his buddy.” Hinsch asks Dennison for identification. Dennison 

gave Hinsch his name, social security number, and date of birth, which Hinsch 

processed with the police dispatch. After giving Hinsch his identification, Dennison 

returned to the kitchen. Hinsch described Dennison’s gait back to the kitchen as 
Jackson App. No. 16CA1 3 

“moseyed pretty quickly,” which he elaborated as meaning “he walked a straight line . . 

he didn’t run but he didn’t walk.” 

{¶6} Hinsch testified that he decided to follow Dennison into the kitchen to keep 

him within sight because experience has taught him that when you process someone’s 

information in the system and they want to get farther away from you, they are usually 

hiding something. Hinsch testified that Dennison’s return to the kitchen was suspicious 

enough that he wanted to stay within a short distance of him. 

{¶7} On his way back into the kitchen, Dennison removed his keys from his 

pocket and tossed them onto the kitchen counter, then placed his hand on them and 

repositioned them. Hinsch testified that he asked Dennison what he was doing and 

Dennison replied, “Nothing.” Hinsch asked “What did you just throw over there?” and 

Dennison responded, “Oh, just my keys.” Hinsch looked at the keys and noticed a 

small stainless steel pill container attached to the keys. He asked Dennison what was 

in the pill container and Dennison told him “that’s just my Gabapentin,” which Hinsch 

knew to be a non-scheduled prescription drug. 

{¶8} Hinsch testified that his check on Dennison’s identification came back 

“clean.” However, when Dennison told him that the pill container had Gabapentin, 

Hinsch seized it. 

{¶9} Hinsch testified that later in his shift he opened the pill container to count 

the pills, found that they were not Gabapentin, and sent them to BCI for analysis. 

{¶10} After taking evidence the court heard arguments from counsel. Dennison 

argued in his motion and at the hearing that Hinsch had no articulable and reasonable 

suspicion to detain him and that Hinsch unlawfully extended the detention beyond the 
Jackson App. No. 16CA1 4 

scope of its purpose. Dennison argued that the officer’s continued detention of him was 

not related to the original purpose of the stop, which was to determine if anyone in the 

house knew the driver parked outside; and that his continued detention was not based 

on any articulable facts giving rise to a reasonable suspicion of some illegal activity. 

Therefore, the officer had no basis to seize and open the pill container that was 

attached to Dennison’s keys. 

{¶11} The state had not filed a written response to Dennison’s motion and 

although the trial court invited post-hearing briefs, the state did not file one. At the 

conclusion of the suppression hearing the state raised two arguments. First, it argued 

that Dennison lacked standing to defend the privacy interests of the homeowners. 

Second, the state argued very briefly that the officer had articulated a reasonable 

suspicion to conduct the search: The prosecuting attorney stated that there was 

“clearly reasonable law enforcement each step of the way” and that “we expect law 

enforcement to investigate suspicious vehicles sitting across the street from houses 

and when they knock on the door and things escalate, I mean, from there we want 

them to respond reasonably” and that the officer has “given a perfectly legitimate 

reasonable expectation [sic] of why he took each step that he took and I don’t see any 

Constitutional infirmity in any of that so.” 

{¶12} The trial court granted Dennison’s motion to suppress. It determined that 

Hinsch’s encounter with Dennison began as consensual and when Dennison returned 

quickly to the kitchen, Hinsch had a reasonable belief that Dennison was about to 

engage in criminal activity and was entitled to follow Dennison into the kitchen. 

However, the court concluded the officer failed to articulate facts that would create a 
Jackson App. No. 16CA1 5 

reasonable basis for expanding the scope of the search and to seize Dennison’s pill 

container after Dennison told him he had a prescription for the medication. The court 

based this conclusion upon its belief that it is not unlawful to have prescription 

medication in a container other than the prescription bottle. 

{¶13} The state appealed as a matter of right. See R.C. 2945.67 and App. R. 

11.2(D). 

II. ASSIGNMENT OF ERROR 

{¶14} The state raises one assignment of error: 

1. THE TRIAL COURT ERRED BY GRANTING APPELLANT-DEFENDANT 

ROGER DENNISON’S MOTION TO SUPPRESS EVIDENCE. DECISION 

AND ORDER (JANUARY 26, 2016). 

III. LAW AND ANALYSIS 

{¶15} The state argues that the trial court erred in granting Dennison’s motion to 

suppress because when he tossed his keys with the attached pill container on the 

kitchen counter, he abandoned them and had no reasonable expectation of privacy at 

the time of the search, i.e. tossing keys on the kitchen counter is the equivalent of 

throwing drugs in a shrub during a foot chase. 

{¶16} “Question of whether property has been abandoned along with any 

constitutional interest in the right to privacy or security of a property interest is a factual 

one; trial court must weigh the facts and circumstances to determine if in fact the 

property and constitutional interest therein has been, in fact, abandoned.” State v. 

Harkins, 5th Dist. Licking No. 02-CA-00019, 2002-Ohio-3940, ¶ 24. Our review of the 

record shows that the state did not raise this issue at the trial court level and the court 

made no factual findings concerning it. Because the state did not raise the 

abandonment argument during the trial court proceedings, it may not raise it for the first 
Jackson App. No. 16CA1 6 

time on appeal. State v. Kerns, 4th Dist. Washington No. 99CA30, 2000 WL 310357, *2 

(Mar. 21, 2000) (state failed to argue that the stop was consensual during the 

suppression hearing and therefore cannot raise it for the first time on appeal); State v. 

Bing, 134 Ohio App.3d 444, 731 N.E.2d 266 (9th Dist. 1999) (“The State ‘did not raise 

[these] arguments at [the] suppression hearing and may not assert [them] for the first 

time on appeal.’ ”); See generally State v. Quarterman, 140 Ohio St.3d 464, 2014-

Ohio-4034, 19 N.E.3d 900, ¶ 15 (2014) (It is a well-established rule that “ ‘an appellate 

court will not consider any error which counsel for a party complaining of the trial 

court's judgment could have called but did not call to the trial court's attention at a time 

when such error could have been avoided or corrected by the trial court.’ ”); State v. 

Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986) (failure to raise an issue at the trial 

court level, which issue is apparent at the time of the proceeding, constitutes a waiver 

of such issue and a deviation from this state's orderly procedure, and therefore need 

not be heard for the first time on appeal). 

{¶17} We overrule the state’s sole assignment of error because it failed to 

preserve the argument at trial that it now attempts to make on appeal. 

IV. CONCLUSION 

{¶18} Having overruled the state’s assignment of error, we affirm the trial court’s 

judgment. 

 JUDGMENT AFFIRMED.
Jackson App. No. 16CA1 7 

JUDGMENT ENTRY 

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Jackson 

County Court of Common Pleas to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as 

of the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, J. & McFarland, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.