State v. Fitch

2024 Ohio 1295

• Court: Ohio Court of Appeals
• Decided: April 5, 2024
• Docket: 2023-CA-28
• Status: Published

Opinion

[Cite as State v. Fitch, 2024-Ohio-1295.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-28 : v. : Trial Court Case No. 23 CR 147 : LARRY C. FITCH, JR. : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on April 5, 2024

DUSTIN M. DAVIS, Attorney for Appellant

MATTHEW C. JOSEPH, Attorney for Appellee

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HUFFMAN, J.

{¶ 1} Larry C. Fitch, Jr., appeals from his conviction, following his no contest plea,

of one count of aggravated possession of drugs. Specifically, Fitch challenges the trial

court’s decision overruling his motion to suppress. For the reasons discussed in this

opinion, the judgment of the trial court will be affirmed.

Facts and Procedural History -2-

{¶ 2} On November 10, 2022, Officers Chad Chalfant and Lucas Schlumpf of the

Troy Police Department were investigating a prior pursuit of a suspect in a Pontiac;

Chalfant had received information that Fitch sold the Pontiac to the suspect and that Fitch

was “staying” at the residence at 719 Canal Street. Schlumpf had seen Fitch park his

truck in front of the residence and enter it through a door on the left side of the house.

{¶ 3} The officers interacted with the property owner, Ronald Minnich, and his son

Michael, when they sought entrance to the house at 719 Canal Street. They asked if

Fitch was there. Minnich answered affirmatively and gave the officers permission to go

upstairs and speak with Fitch.

{¶ 4} According to the officers, they proceeded to the upstairs of the home to an

area that looked like an attic with rooms. They encountered a woman who ran away

from them into an area enclosed by a tarp, which she pulled closed behind her when she

entered it. At this point, the officers concluded that a protective sweep of the area was

warranted for officer safety. In the course of the protective sweep or immediately

thereafter, they observed a large bag of methamphetamine next to Fitch.

{¶ 5} On May 8, 2023, Fitch was indicted on one count of aggravated possession

of drugs. He filed a motion to suppress and, after a hearing, the court overruled the

motion. Fitch then pled no contest to the charge, was found guilty, and was sentenced to

a mandatory indefinite term of two to three years in prison.

Assignments of Error and Analysis

{¶ 6} Fitch asserts two assignments of error, which we will consider together. First,

he argues that the trial court erred in ruling that the address on Canal Street was a single- -3-

family dwelling; second, he contends that Minnich could not have authorized a “search”

of the part of the premises in which Fitch was found. Fitch concludes that the drugs

found by the officers should have been suppressed.

{¶ 7} Fitch asserts that he was a tenant and that the officers failed to ask Minnich

about Fitch’s status. Fitch argues that the upstairs area entered by officers was “clearly

a private bedroom,” secured by “a tarp over the door providing for privacy in the sleeping

area.” According to Fitch, there was no evidence that Minnich shared any of the upstairs

space with him or that the area was a common area and, as such, Minnich lacked

authority to consent to the search of the upstairs of the house. Fitch also asserts that the

trial court misstated facts related to the Auditor’s record for the property.

{¶ 8} In response, the State points out that the trial court specifically found the

testimony of Fitch and his girlfriend was not credible. According to the State, the officers

reasonably relied upon Minnich’s authority, and Fitch’s argument that the trial court was

mistaken in this conclusion is without merit.

{¶ 9} The evidence presented at the suppression hearing was as follows.

{¶ 10} The police officers were looking for Fitch in their investigation of an

unrelated incident. They had heard that Fitch was staying at 719 Canal Street, and

Officer Schlumpf saw Fitch’s truck parked outside while on routine patrol. Schlumpf had

also seen Fitch enter the residence.

{¶ 11} Officer Chalfant testified that he was familiar with the Canal Street address,

having been there multiple times for different disturbances and mental health concerns,

squatters, and people with warrants and weapons. Chalfant testified that Ronald Minnich -4-

owned the residence. According to Chalfant, the officers asked Minnich if Fitch “was

staying at the residence or if he was there”; Minnich responded that Finch was upstairs

and gave the officers permission to enter the home and go upstairs to speak to Fitch.

Chalfant described entering through a living room area “about ten steps” to a little door

which led to the stairs. Chalfant and Schlumpf proceeded up the stairs. Chalfant

described the upstairs as “a little attic area with some rooms.” Chalfant had had prior

interactions with Fitch and believed that he resided on Cloverleaf Drive at the time.

There was no indication to Chalfant that the Canal Street address contained more than

one residential unit.

{¶ 12} Similarly, Officer Schlumpf testified that he had been to the house multiple

times for firearms complaints, warrants, and drugs. He testified that he and Officer

Chalfant obtained Minnich’s permission to go upstairs to talk with Fitch. They did so by

crossing through the living room, going through a door, and going up steps. Video from

Schlupmf’s body camera was presented depicting this path. Schlumpf further testified

that, when they turned at the top of the steps, the officers saw a woman (later identified

as Fitch’s girlfriend, Joy) who “took off running” down the hallway and pulled a tarp across

a doorway. Schlumpf testified that he did not know who the woman was or what she

was doing and, at that point, he thought a protective sweep was warranted. When the

officers pulled back the tarp, the woman was sitting next the Fitch in the room. Chalfant

entered the room, Schlumpf saw Fitch put something behind his back, and then Chalfant

observed a large bag of a substance that was later determined to be methamphetamine.

{¶ 13} With respect to the condition of the premises, Chalfant acknowledged on -5-

cross-examination that there were two external doors on the front of the building, with the

“front door” on the left side. The officers entered through the left door, and Schlumpf

testified that Fitch had also entered through the left door. Neither officer was aware of a

separate residence at that address or of an address of 719½ Canal Street. Both officers

testified that they passed through an “interior door” from the living room to get to the stairs

to the upper level, and Schlumpf stated that this door had been ajar when they arrived.

Chalfant did not notice if there was a kitchen or bathroom upstairs or if there was exterior

siding on the interior stairwell wall, but Schlumpf acknowledged that his body camera

video depicted exterior siding on that wall. Chalfant testified that Fitch had not given the

officers permission to enter any part of the residence.

{¶ 14} According to Schlumpf, the house was dilapidated with trash everywhere

and damage from a recent fire; he described the upstairs as “charred with plywood around

the windows.” Schlumpf did not believe that the upstairs “was habitable by any means,”

and he testified that he had no reason to think anyone lived there.

{¶ 15} Fitch and his girlfriend, Joy, testified for the defense. Joy testified that she

was Fitch’s girlfriend and that, on November 10, 2022, she was living with him at 719½

Canal Street, which she described as an upstairs apartment they rented from Minnich.

She testified that they entered the apartment through the door on the right side of the

property. Joy specifically stated that she and Fitch had entered through the door on the

right side of the house around 7:30 p.m. on the day Officers Chalfant and Schlumpf came

to the home. According to Joy, that door led to steps to the upstairs, and then there was

another door to their apartment at the top of the steps. She testified that there was a -6-

bathroom upstairs and there was “supposed to be” a kitchen, but it was torn apart and

Fitch was remodeling it.

{¶ 16} Fitch testified that he resided at 719½ Canal Street on November 10, 2022.

He arrived home that evening around 7:30 p.m. and entered through his entry door, the

brown door on the right side of the house. According to Fitch, that door led directly to

the upstairs apartment, with a door at the top, and there were a living room, kitchen, and

bathroom in the apartment. Fitch stated that he had an oral agreement with Minnich that

he would live there while he (Fitch) remodeled the apartment, and Fitch would start paying

rent when the remodeling was complete; the remodeling had begun in October 2002.

Fitch testified that those living downstairs were not supposed to have free access to the

apartment. He also asserted that the property was “listed as a duplex in the City of Troy.”

{¶ 17} The trial court denied Fitch’s motion to suppress. The court concluded that

Minnich had had authority to consent to the officers’ search of the upstairs and that, even

if Minnich arguably had not had authority to consent, the officers had reasonably relied in

good faith upon his apparent authority.

{¶ 18} The court found that several factors supported its decision. The court

found that the officers’ credibility was “without question” and was corroborated by the

body camera footage. The court also noted the officers’ familiarity with the Canal Street

address and its residents, including Minnich and his children, who they knew by name;

they did not know of an address of 719½ Canal Street. When the officers asked Minnich’s

son, Mike, if Fitch was present, Mike responded that Fitch was not “down here” but that

he was “probably upstairs,” without suggesting that Fitch was in an area of the home -7-

solely under Fitch’s control. None of the Minniches stated that Fitch was renting the

upstairs property, and neither officer had been aware that Fitch was living at the Canal

Street address. Chalfant believed he lived somewhere else, and Schlumpf testified that

Fitch was listed as “at large” in the Troy Police database.

{¶ 19} With respect to the body camera video, the trial court observed that the

video showed that there was access from the downstairs living room to the upstairs and

that, when Fitch and Joy “separately exited the second floor, neither attempted to go out

the door [on the right of the house] they described as the entry door”; rather, they had

automatically turned at the bottom of the staircase through “the same interior door the

officers had been led through.” The court also observed that neither Fitch nor Joy had

knocked or announced their presence before entering the lower-level living room “to

indicate they were entering a residence separate and apart from” their own residence on

the second floor. Joy also was instructed by Fitch to use a downstairs bathroom.

{¶ 20} The court credited Officer Schlumpf’s testimony that Fitch had entered the

home through the door on the left side of the home. The trial court considered the “overall

appearance of the home in the videos,” which included a lot of “stuff” throughout in the

downstairs areas with only narrow pathways to move through the home. The court noted

that another individual in the home was arrested on an active warrant downstairs in the

course of the encounter. The court found Fitch’s and Joy’s testimony that they had

entered the right-side door lacking in credibility and found no evidence of a residence

address at 719½ Canal Street, even considering the Auditor’s information that Fitch

introduced. -8-

{¶ 21} The trial court found that the totality of the circumstances demonstrated

there was no basis to believe Fitch had a separate living quarters within the residence

where he would have been entitled to an expectation of privacy, necessitating Fitch’s

consent to enter or a warrant. The trial court concluded that Fitch was not the owner of

the property and, based on the video footage in which people moved freely between the

first and second floor, it was unpersuaded that Fitch was in control of the upstairs area

The court found that the “historical use of the property weigh[ed] against [Fitch] and

favor[ed] Minnich” in his ability to consent to the warrantless entry. The court found that

the State proved “by clear and convincing evidence that Robert Minnich had common

authority to consent to the officers’ search of the upstairs of the dwelling or, in the

alternative that the officers reasonably relied in good faith on his apparent authority.”

{¶ 22} “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.

At a suppression hearing, “the trial court assumes the role of trier of facts and is in the

best position to resolve questions of fact and evaluate the credibility of witnesses.” State

v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v.

Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). “ ‘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, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.’ ” State v. Brown, 2016-Ohio-

4973, 67 N.E.3d 1278 ¶ 7 (2d Dist.), quoting Burnside. “The application of the law to the -9-

trial court’s findings of fact is subject to a de novo standard of review.” Id.

{¶ 23} Although the trial court framed the issue as to whether Ronald Minnich had

the authority to consent to the search of the residence, we believe the proper analysis

lies in whether Minnich had authority to consent to the entry of the officers into the

residence and whether, after entering the upstairs and observing the tarp being pulled

closed across a doorway, the officers possessed articulable facts to conduct a protective

sweep of the area. We answer both questions affirmatively.

{¶ 24} “[A] police officer may reasonably rely upon the apparent authority of the

occupant of [a] premises to consent to the officer entering upon those premises, in the

absence of any indication that the occupant lacks that authority.” State v. Harris, 2d Dist.

Montgomery No. 19479, 2003-Ohio-2519, ¶ 22. “Where the police officer reasonably

relies upon consent given by an occupant of the premises to enter upon the premises,

entry upon the premises does not violate the Fourth Amendment’s prohibition against

unreasonable searches and seizures.” (Citation omitted). Id.; see also State v. Kilgore,

2d Dist. Montgomery No. 18093, 2000 WL 299546, *4 (Mar. 24, 2000) (finding “nothing

inappropriate about the police's entering an apartment after hearing a voice say ‘come

in,’ especially where the officers immediately identified themselves as police officers and

did not try to trick, threaten, or force their way into the residence.”).

{¶ 25} Further, “[a] protective sweep is a reasonable exception to the Fourth

Amendment’s warrant requirement.” State v. Mathews, 2d Dist. Montgomery No. 26326,

2015-Ohio-1047, ¶10, citing Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d

276 (1990). A protective sweep is permissible when “ ‘articulable facts * * *, taken -10-

together with the rational inferences from those facts, would warrant a reasonably prudent

officer in believing that the area to be swept harbors an individual posing a danger to

those on the * * * scene.’ ” State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882

N.E.2d 960, ¶ 36 (2d Dist.), quoting Buie at 334. “If contraband is found from this cursory

visual inspection, the plain view doctrine would allow the officer to seize it, without a

warrant.” Mathews at ¶ 14.

{¶ 26} Based on the officers’ testimony and the body camera video, the trial court

concluded that the officers reasonably relied upon Minnich’s consent, as the homeowner

known to them from previous experience at the home, to enter the residence upon their

request to merely speak to Fitch. There was no indication to the officers that Minnich

lacked such authority. When the officers initially entered the home, a number of people

were present downstairs; in the living area of the home, Minnich, his son, and Minnich’s

daughter were present with a third man. The entire home was in a state of disrepair and

full of various items on the floor and covering all surfaces. The officers walked through

a densely cluttered living room and into a narrow kitchen, where another man, who was

subsequently arrested on a warrant, was standing. After walking through the kitchen,

the officers turned around and went back to the living room. The door from the living

room to the upstairs was not locked in a manner suggesting that the doorway was a

threshold to a separate residence, and the officers’ presence was not announced by

anyone as they passed through the door. The officers proceeded up a flight of stairs,

which was also crowded with items covering the stairs. At the top of those stairs, a

doorway to the left was covered by a tarp; the tarp was pulled closed as the officers -11-

approached by an individual later identified as Fitch’s girlfriend, Joy. Officer Schlumpf

said, “Don’t be pulling that closed,” and he pulled the tarp aside and entered the room.

Joy, who had apparently closed the tarp, was sitting on an air mattress on the floor.

Schlumpf expressed concern for officer safety at that point, based on these

circumstances, his familiarity with the address, and prior calls to the residence about

weapons and drugs. The officers reasonably conducted a protective sweep based upon

this concern.

{¶ 27} Fitch was seated on the mattress next to Joy. From the body camera

video, it was clear that Chalfant immediately observed what he believed were drugs in

plain view near Fitch, without manipulating or moving anything to observe the drugs.

{¶ 28} Although Fitch presented information from the County Auditor that

appeared to list the residence as a two-family dwelling, Ronald Minnich was the only

homeowner listed on the record. Even assuming that Fitch and Joy resided there and

that their consent was required to enter the room upstairs, looking at the facts that were

available to the officers at the time, we agree with the trial court that the officers

reasonably believed that they had the homeowner’s consent to enter the residence, and

they advised Fitch of this on the video. The record is clear that the officers did not

request, and Minnich did not authorize, a search of the upstairs; Minnich allowed them to

enter to speak to Fitch. The facts available to the officers, together with the reasonable

inferences from those facts, warranted the officers’ conclusion that a protective sweep

was needed to protect them. The officers were familiar with the address, having made

arrests there and responded to disturbances and other issues at the residence in the past. -12-

The officers observed an individual who pulled a tarp across a doorway immediately upon

seeing them, blocking their view of the area and any persons behind it. This supported

the officers’ belief that a protective search was warranted. Immediately upon opening

the tarp, the officers observed the drugs.

{¶ 29} The video made clear that Officer Chalfant believed Fitch lived elsewhere,

and Fitch acknowledged having lived at a prior address. Additionally, Officer Schlumpf’s

description of the upstairs area as uninhabitable was supported by the evidence. The

room with the air mattress was not finished with drywall and appeared to be an attic under

some type of construction. No personal belongings of Fitch and Joy, such as a dresser

or clothing, were visible. The video depicted a refrigerator that appeared to be taped

shut and an unfinished bathroom.

{¶ 30} In sum, the police officers involved in Fitch’s arrest obtained the consent of

the homeowner to enter the home and proceed upstairs to speak to Fitch;

methamphetamine was then found in plain view in an area of the home that appeared to

be uninhabitable. While Fitch claimed the area was his residence, the police relied in

good faith on Minnich’s consent to enter, and the surrounding circumstances were not

such to cause the officers to doubt Minnich’s authority. A protective sweep of the area

for officer safety was further warranted. For these reasons, Fitch’s assignments of error

are overruled.

{¶ 31} The judgment of the trial court is affirmed.

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EPLEY, P.J. and TUCKER, J., concur.