author: DESMOND, J.

text:
    COMMONWEALTH v. Dennis C. BAIN.
    No. 17-P-159
    Appeals Court of Massachusetts, Essex..
    Argued May 2, 2018. Decided August 15, 2018.
    Courtney Joy for the defendant.
    Emily R. Mello, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Henry, & Desmond, JJ.
   DESMOND, J.

After a probation violation hearing, the defendant was found in violation of his probation and had his probation term extended by six months. The defendant now asserts, inter alia, that the judge's failure to specify, in writing, the grounds for his decision that the defendant was in violation of his probation was a due process violation. Because we conclude that the judge's incomplete written findings at the time of the violation hearing, coupled with his oral findings issued at the hearing, satisfied the defendant's due process rights, we affirm.

The defendant was found to be in violation of his probation for violating a special condition of his probation, which required that he stay away from the victim.

The facts of the violation itself are not of consequence to the appeal. The defendant now argues that the judge violated his right to due process by failing to issue written findings. Further, he contends that he received inadequate written notice of his alleged probation violation and of purported additional probation violations, and that the probation officer improperly testified at his violation hearing without being placed under oath or subjected to cross-examination.

The Commonwealth and the defendant each produced one witness at the probation violation hearing, and both witnesses' testimony arguably supported a finding that the defendant had violated the order to stay away from the victim. At the conclusion of the hearing, after the defendant's attorney argued that he should not be found in violation, the judge specifically stated, "Well [the defendant is] definitely in violation; even by the terms of [his] own witness." On the defendant's probation violation finding and disposition form, the judge checked off "violation of probation found" for the defendant's failure to comply with his order of probation, specifically, for violating the stay-away order. On the same form, the judge indicated that this finding was based on "a hearing and the preponderance of the credible evidence, specifically, the following testimonial or documentary evidence." That section of the form is followed by a blank line, to be filled in by the judge with specific evidence relied on to support the violation finding. In this instance, it was left blank.

As the defendant's contentions implicate constitutional rights, we review to determine whether there was error and, if so, whether it was "harmless beyond a reasonable doubt." Commonwealth v. Bacigalupo, 455 Mass. 485, 495, 918 N.E.2d 51 (2009), citing Commonwealth v. Vinnie, 428 Mass. 161, 163, 698 N.E.2d 896 (1998). See Commonwealth v. Kelsey, 464 Mass. 315, 319, 982 N.E.2d 1134 (2013) ("Courts in the Commonwealth have assumed, without so holding, that the same standard [as exists in the trial context] applies to probation revocation hearings").

As a threshold matter, we note that "[w]e may affirm ... on any grounds supported by the record." Commonwealth v. Bartlett, 465 Mass. 112, 117, 987 N.E.2d 1213 (2013). Due process requires a judge to issue a written statement supporting a probation revocation to help "insure accurate factfinding with respect to any alleged violation and provide[ ] an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence" (emphasis added). Black v. Romano, 471 U.S. 606, 613-614, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985). Probation violation hearings do not, however, carry the "full panoply of constitutional protections applicable at a criminal trial." Commonwealth v. Bukin, 467 Mass. 516, 520, 6 N.E.3d 515 (2014) (quotation omitted). "Although a separate written statement of the evidence relied on and the reasons for revocation is one of the probationer's due process rights in such proceedings, it is not an inflexible or invariably mandatory requirement and can be satisfied in other ways." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 592-593, 740 N.E.2d 998 (2000). Transcribed oral findings can satisfy or supplement the judge's requirement to issue written findings. See Fay v. Commonwealth, 379 Mass. 498, 504-505, 399 N.E.2d 11 (1980). Like Morse, supra at 593, 740 N.E.2d 998, "this was a simple, straightforward case, and the entirety of the short transcript ... is [the] inculpatory evidence." Therefore, in this case, the judge's statement that the defendant was in violation "even by the terms of [his] own witness," coupled with the, albeit incomplete, probation violation finding and disposition form, satisfied the defendant's due process rights and afforded him an adequate basis for review. See Fay, supra ; Morse, supra.

The defendant's assertions regarding his written notice and the probation officer's role in the violation hearing are similarly unavailing. For the first time, the defendant now contends that because his notice of probation violation failed to state the date of the alleged incident, it failed to satisfy the written notice requirement set forth by rule 4(c) of the District/Municipal Courts Rules for Probation Violation Proceedings (2015). See Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990). Even if the defendant's failure to raise this issue before the judge does not render the argument waived, see Morse, supra at 589-590, 740 N.E.2d 998, it requires little discussion. The notice requirement assures that the defendant has been adequately notified of the nature of the charges against him. See Fay, supra at 503, 399 N.E.2d 11. There was ample evidence that the defendant was aware of the alleged violation against him, as the defendant came prepared and in fact presented a witness to testify to the incident in question. Additionally, the defendant did not move for a continuance or a bill of particulars, as would have been appropriate were he truly unaware of the basis for his alleged violation.

Order revoking probation affirmed.

      This contention was raised for the first time in the defendant's brief on appeal, nearly fourteen months after the violation hearing.

      As a preliminary matter, the Commonwealth contends that the defendant's appeal is moot because he has since completed his probation period. A violation of probation carries with it potential collateral consequences and may be considered in future proceedings, such as those regarding bail, sentencing, or parole. It is not moot. See Commonwealth v. Pena, 462 Mass. 183, 186-189, 967 N.E.2d 603 (2012).

      After the defendant filed his brief and appendix in this court, the Commonwealth filed a motion seeking an extension of time to file its brief, which was allowed. Less than one month before the extended due date for its brief, and almost sixteen months after the probation violation hearing, the Commonwealth filed an unopposed motion to stay this appeal, asking us to "direct" the judge to issue written findings of fact. We did not issue such an order and did not rule in the first instance on the propriety of seeking such findings. However, on October 16, 2017, we stayed the appeal, stating, "[t]he Commonwealth is given leave to file, and the trial court is given leave to consider, a motion for written findings concerning the revocation of probation." The Commonwealth then filed a motion for written findings in the District Court on October 20, 2017, and findings were issued by the judge on November 16, 2017.
      Because a written statement supporting a probation violation is required in part to "insure accurate factfinding with respect to any alleged violation," Black v. Romano, 471 U.S. 606, 613-614, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), it should be issued contemporaneously with the order finding a violation. Where neither party sought written findings until the case was docketed in this court, and well over one year after the hearing, there is good reason to question whether, in these circumstances, we may rely on the findings issued by the judge in response to the Commonwealth's motion. Because the probation violation finding and disposition form executed by the judge following the hearing and his statements at the end of the hearing were sufficient to satisfy due process in the present case, we need not address the propriety of the findings made by the judge, nor do we rely on them.

      From the judge's comments at the hearing, it could also be reasonably inferred that he similarly credited the Commonwealth's witness. The requirement that judges make written findings of fact and state the reasons for the revocation, see rule 8(c) of the District/Municipal Courts Rules for Probation Violation Proceedings (2015), may be satisfied by an oral statement on the record by the judge that the testimony of one or more witnesses is credited and a brief statement of why probation is revoked.

      The defendant did not challenge the sufficiency of the evidence supporting the judge's oral finding.

      The defendant's contention that the probation officer should have been placed under oath before assisting in the violation hearing and subjected to cross-examination need not be addressed in great detail. The probation officer never testified during the hearing, and therefore did not need to be sworn in. Instead, by calling a witness, he was presenting evidence to the judge to support a finding of probable cause, as allowed by rule 5(c) of the District/Municipal Courts Rules for Probation Violation Proceedings (2015). Further, the defendant contends that the probation officer mentioned additional probation violations in his closing argument and that the defendant was not notified of those violations until that moment. That argument similarly lacks merit, as any additional violations were not at issue during the hearing and the probation officer's comments regarding the defendant's conduct while on probation were made while advocating for the probation officer's recommended disposition. This argument rings especially hollow where the defendant was only found in violation of probation for the one specified allegation that was the focus of the hearing. As neither argument supports a finding of error, neither amounted to a due process violation.


source: Caselaw Access Project

license: Public Domain

text:
    WELLS FARGO FINANCIAL MASSACHUSETTS, INC. v. Deborah M. MULVEY & another.
    No. 17-P-128
    Appeals Court of Massachusetts, Essex..
    Argued April 13, 2018 Decided August 17, 2018
    Robert M. Mendillo, Newton, for the plaintiff.
    Present: Green, C.J., Desmond, & Englander, JJ.

      Brian F. Mulvey.

   DESMOND, J.

By complaint in the Superior Court, the plaintiff, Wells Fargo Financial Massachusetts, Inc. (Wells), sought a declaration that language in a mortgage granted to it by the defendants, Deborah M. Mulvey and Brian F. Mulvey, entitled it to exercise the statutory power of sale upon the Mulveys' default. The Mulveys did not answer the complaint and were defaulted. A judge of the Superior Court (motion judge) thereafter dismissed the complaint, based on her conclusion that it did not present a justiciable controversy. We affirm.

Background. On May 28, 1992, the Mulveys purchased real property located at 228 Fays Avenue in Lynn (property). On August 3, 2006, the Mulveys granted Wells a mortgage on the property, securing payment on a note in the principal amount of $302,640.01. Paragraph 20 of the mortgage specifies certain remedies available to Wells in the event of a default by the Mulveys, including, in relevant part:

"20. Acceleration; Remedies.... If the default is not cured ..., [Wells] at its option may require immediate payment in full of all sums secured by this [mortgage] without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law....
"If [Wells] invokes the power of sale, [Wells] shall give notice of sale in the manner prescribed by Applicable Law .... [Wells] shall publish the notice of sale, and the Property shall be sold in the manner prescribed by Applicable Law." (Emphases supplied.)

On January 11, 2016, Wells filed a complaint in Superior Court seeking a declaration that the above-quoted language authorizes it to foreclose under the statutory power of sale described in G. L. c. 183, § 21. The complaint alleges that the Mulveys are in default of their obligation to repay their loan, and that Wells "seeks to exercise its remedies for default, including the ability to foreclose its Mortgage by exercising the statutory power of sale." The sole count of the complaint requests a declaratory judgment pursuant to G. L. c. 231A.

Wells's returns of service (filed with the court) state that copies of the complaint and summons were served on each of the Mulveys by leaving the same at the property on January 29, 2016, and by mailing additional copies to the property on February 1, 2016. By February 18, 2016, no answer had been filed and Wells's counsel mailed to the court requests for entry of default as to each of the Mulveys. See Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974). Defaults were entered on the docket the following day. Thereafter, Wells moved for a default judgment pursuant to Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012). On April 14, 2016, the motion judge held a hearing on the motion for entry of judgment. ,

On April 27, 2016, an assistant clerk of the court mistakenly entered judgment for Wells on the docket and issued a clerk's notice stating that a judgment had entered, decreeing as follows:

"The power of sale language in the Mortgage granted by defendants to plaintiff ... has the same effect as the Statutory Power of Sale language in [G. L.] c. 183, [§] 21 ; and ... Plaintiff, its successors and/or assigns, is entitled to foreclosure by using the procedure for statutory power of sale contained in [G. L.] c. 244, [§] 14."

On August 3, 2016, the motion judge, who had heard Wells's motion at the April 14, 2016, hearing, issued an order stating that Wells's complaint was to be dismissed because it did not present a justiciable controversy.

On October 11, 2016, a second judge vacated the April 27, 2016, judgment in the instant case, writing in his order that although the motion judge had heard and taken Wells's motion under advisement, an assistant clerk "mistakenly and without judicial authorization" entered judgment for Wells. A judgment of dismissal issued and was entered on the docket that day. This appeal followed.

Discussion. The "actual controversy" requirement found in G. L. c. 231A, § 1, is considered a "predicate of jurisdiction." Alliance, AFSCME/SEIU, AFL-CIO v. Commonwealth, 425 Mass. 534, 536, 682 N.E.2d 607 (1997). Thus, the motion judge was entirely correct to question, sua sponte, whether Wells's complaint presented a live controversy.

As pertinent here, a declaratory judgment action may proceed only if the following conditions are met: "(a) an actual controversy sufficient to withstand a motion to dismiss must appear on the pleadings; and (b) even if there is a finding of an actual controversy, a plaintiff must demonstrate the requisite legal standing to secure its resolution." Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 83, 836 N.E.2d 1123 (2005). "Accordingly, declaratory relief is reserved for real controversies and is not a vehicle for resolving abstract, hypothetical, or otherwise moot questions." Libertarian Assn. of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 547, 969 N.E.2d 1095 (2012).

An "actual controversy" exists when there is "a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation." Bunker Hill Distrib., Inc. v. District Attorney for Suffolk Dist., 376 Mass. 142, 144, 379 N.E.2d 1095 (1978), quoting from School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518, 70 N.E.2d 298 (1946).

The phrase "actual controversy" is, however, to be "liberally construed." Boston v. Keene Corp., 406 Mass. 301, 304, 547 N.E.2d 328 (1989). See G. L. c. 231A, § 9. Moreover, the fact that no defendant appears to oppose an action for declaratory judgment does not compel a conclusion that there is no justiciable controversy. See Babson v. Babson, 374 Mass. 96, 103, 371 N.E.2d 430 (1977).

Here, however, Wells's complaint does not allege an actual controversy between the parties, and states no facts compelling a conclusion that one exists. Indeed, there is no allegation of any communication between the parties on this subject. The existence of a live dispute cannot be inferred purely from the Mulveys' alleged monetary default, or from Wells's unilateral intention to foreclose. We see no basis for assuming that any attempt by Wells to foreclose by sale will necessarily be challenged by the Mulveys.

As the motion judge observed, instead of seeking resolution of a live dispute, Wells is essentially seeking an advisory opinion. It appears that Wells would attempt to use such an opinion to shield itself from any potential future controversy that might arise if it were to pursue a nonjudicial foreclosure. Wells is not entitled to such an adjudication. See Duane v. Quincy, 350 Mass. 59, 61, 213 N.E.2d 250 (1966), quoting from Cole v. Chief of Police of Fall River, 312 Mass. 523, 526, 45 N.E.2d 400 (1942), appeal dismissed, 319 U.S. 581, 63 S.Ct. 1204, 87 L.Ed. 1599 (1943) ("Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy"). See also Commissioner of Correction v. Ferguson, 383 Mass. 651, 653, 421 N.E.2d 444 (1981) (declining to answer reported question where, "[i]n effect, what the [plaintiff] seeks is an advisory opinion as to his future course of conduct").

Judgment affirmed.

      Wells's complaint asserts that the Mulveys purchased the property on September 29, 2000, but the deed attached thereto as Exhibit A is dated May 28, 1992, and was recorded the following day.

      As asserted in the complaint, Wells's concern about whether paragraph 20 of its mortgage successfully incorporated the statutory power of sale stems from omission of the word "statutory" before the phrase "power of sale." Recently, the Supreme Judicial Court addressed a similar question in James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 88 N.E.3d 1133 (2018). In holding that the only "reasonable and practical" interpretation of ambiguous language in the Nutter mortgage was that it incorporated the statutory power of sale, however, the court pointedly relied on the fact that a reverse mortgage and not a traditional mortgage (such as that granted by the Mulveys) was before it. See id. at 672, 88 N.E.3d 1133 (in reverse mortgage, "the lender cannot hold the borrower personally liable for the debt, and ... the lender's only recourse on default is to obtain repayment through a foreclosure sale").

      Although the docket states this was an assessment of damages hearing, Wells sought no damages and it is clear for reasons stated infra that the hearing was, in substance, about whether a default judgment should enter.

      Although Wells's counsel submitted an affidavit of compliance with Rule 9A of the Rules of the Superior Court (2016), attesting that the Mulveys were served by mail with copies of the motion for entry of a default judgment, it is unclear whether the Mulveys were notified of the date and time of the hearing on the motion.

      The language set forth on the docket and the clerk's notice closely tracks the language in a proposed judgment submitted by Wells.

      Other avenues are open to Wells. It could, if it chose, pursue a judicial foreclosure action. See G. L. c. 244, §§ 1, 3, and 4. We note also that Wells's complaint does not request reformation of the Mulveys' mortgage based on mutual mistake or some other ground. See Beaton v. Land Ct., 367 Mass. 385, 392, 326 N.E.2d 302, appeal dismissed, 423 U.S. 806, 96 S.Ct. 16, 46 L.Ed.2d 27 (1975).

      We note that under the plain language of the declaratory judgment statute, "The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings or for other sufficient reasons." G. L. c. 231A, § 3, inserted by St. 1945, c. 582, § 1. See National Shawmut Bank of Boston v. Morey, 320 Mass. 492, 497, 70 N.E.2d 316 (1946) (even where court had jurisdiction to award declaratory relief, "it does not follow that the petitioners were entitled to a decree as a matter of right").


author: RUBIN, J.

text:
    A.R. v. L.C. (and a companion case ).
    No. 16-P-1013
    Appeals Court of Massachusetts, Norfolk..
    Argued September 8, 2017 Decided August 17, 2018
    L.C., pro se.
    Jill MacDonald, Foxboro, for A.R.
    J.C., pro se, was present but did not argue.
    Present: Rubin, Neyman, & Henry, JJ.

      The companion case is between the same plaintiff and a different defendant, J.C.

   RUBIN, J.

In this appeal from the issuance of two "harassment prevention orders" under G. L. c. 258E, we are faced once again with the consequences of the variance between the plain language of the statute and the narrowing construction given the statute in O'Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012) ( O'Brien ).

Chapter 258E and its limiting construction. As it reads in the statute books, G. L. c. 258E provides that a protective order shall issue based upon a finding of "harassment." The statute defines harassment to mean "[three] or more acts of willful and malicious conduct aimed at a specific person," each of which must be "characterized by cruelty, hostility or revenge" and "committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. (The statute also provides independently for issuance of an order based on acts that "by force, threat or duress cause[ ] another to involuntarily engage in sexual relations," or that constitute violations of statutes prohibiting indecent assault and battery, rape, rape and abuse, assault with intent to commit rape, enticement, stalking, criminal harassment, and drugging persons for sexual intercourse. G. L. c. 258E, § 1. That provision is not at issue in this case.)

The statute was passed to fill a gap left by G. L. c. 209A, which allows individuals to seek abuse prevention orders against family or household members. Violation of such an order is punishable as a crime. However,

"[a] person who is abused by someone other than a 'family or household member' does not qualify for a protective order under c. 209A and could obtain a restraining order only by seeking relief in the Superior Court under Mass. R. Civ. P. 65 .... Violation of such a restraining order may constitute a contempt of court, but is not a crime.... Chapter 258E was enacted in 2010 to allow individuals to obtain civil restraining orders against persons who are not family or household members, and to make the violation of those orders punishable as a crime."

O'Brien, supra at 419, 961 N.E.2d 547.

The seriousness of an order under c. 258E is reflected not only in the fact that violation is a criminal offense, but in the fact that records of all such orders are entered in the Statewide domestic violence registry from which they may never be removed even if there was an insufficient legal or factual basis for their issuance. See G. L. c. 258E, § 9 ; J.S.H. v. J.S. 91 Mass. App. Ct. 107, 109-110, 71 N.E.3d 910 (2017) ( J.S.H. ). Such an order thus has significant and essentially indelible consequences for the person against whom it issues.

Unsurprisingly in light of the language of the statute, our courts have issued orders based upon a variety of abusive and intimidating willful and malicious conduct characterized by hostility, amounting to what, in colloquial terms, we would describe as harassment. In 2012, however, in O'Brien, the Supreme Judicial Court found that the language of the statute reached some activity protected by the First Amendment. O'Brien, 461 Mass. at 420, 961 N.E.2d 547. Rather than striking the statute down, the court gave it a "narrowing construction." Id. at 421, 961 N.E.2d 547. Although, confusingly, the law remains on the books in unamended form, under O'Brien, a court may not issue a protective order thereunder simply on the basis of three acts characterized by hostility causing and intended to cause fear, intimidation, or abuse committed willfully and maliciously and aimed at a specific person. Rather, each of the three willful and malicious predicate acts aimed at a specific person must be either a "true threat" -- which is what is at issue here, as in the other decided appellate cases addressing the statute -- or "fighting words" -- which are not at issue here and which we can put to one side for present purposes, id. at 425, 961 N.E.2d 547 -- at least where the predicate act is not an intentional act either of unlawful violence, i.e., acts that "attempt[ ] to cause or caus[e] physical harm," or that causes property damage that meets the other requirements of the statute. G. L. c. 258E, § 1. To qualify as a true threat, a threat must demonstrate "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ( Black ) -- under c. 258E, the specific individual to whom the alleged predicate acts are directed. Further, to support an order under c. 258E, the true threats cannot be threats to do just any kind of harm; they must be intended to cause "fear of physical harm" or --again not relevant here -- "physical damage to property." O'Brien, 461 Mass. at 427, 961 N.E.2d 547. Even threats intended to do anything else to the specific individual will not amount to predicate acts for purposes of c. 258E, notwithstanding the language of the statute, and only a threat intended to cause fear of physical harm (or physical property damage) can qualify as one of the three predicate acts for purposes of c. 258E. This is true even when the act is not characterized as one intended to cause "fear" (i.e., of physical harm), but as one intended to cause "intimidation" or "abuse" as well, even though the colloquial meaning of those two words is dramatically broader. See id. at 425, 426-427, 961 N.E.2d 547 (" 'Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.' [ Black, supra] at 360 [123 S.Ct. 1536].... Where the acts are aimed at a specific person, an intent to cause 'abuse' is certainly consistent with a true threat, because abuse is defined in [c. 258E] as 'attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.' G. L. c. 258E, § 1"). Further, even when there are three predicate true threats intended to cause fear of physical harm, they must together in fact cause such fear. See id. at 426 n.8, 961 N.E.2d 547.

Since O'Brien, our appellate courts have repeatedly held in appeals from issuance of orders under c. 258E that conduct that might be considered harassing, intimidating, or abusive in the colloquial sense, and that thus might support issuance of an order under the plain language of the statute, was not adequate to meet the standard spelled out in O'Brien. See, e.g., Seney v. Morhy, 467 Mass. 58, 64, 3 N.E.3d 577 (2014) (little league parent "verbally attacked and threatened to have [plaintiff, an assistant coach,] thrown off the team in front of numerous other parents" and "attacked [plaintiff's] personal being in front of every single parent"); Van Liew v. Stansfield, 474 Mass. 31, 38-39, 47 N.E.3d 411 (2016) (defendant publically accused plaintiff of being corrupt and a liar and during telephone call loudly called plaintiff uneducated and stupid); Gassman v. Reason, 90 Mass. App. Ct. 1, 9, 55 N.E.3d 997 (2016) (repeated complaints from downstairs neighbor about loud piano playing by neighbor in upstairs apartment); C.E.R. v. P.C., 91 Mass. App. Ct. 124, 127-128, 71 N.E.3d 915 (2017) (loud music played at all hours of night, use of strobe light at night, and installation of security cameras on property by tenants).

The evidence and the orders at issue. With this as background, we turn to the facts of this case. In this case, the plaintiff, A.R., obtained orders under c. 258E against the defendants, L.C. and J.C., his mother- and father-in-law. In his affidavit he alleged that the defendants accompanied their daughter (his wife, from whom he was separated) when the parents exchanged their young child, over whom they shared legal and physical custody, in public places. According to A.R., there were several incidents in which L.C. would video record the exchanges, even though A.R. asked her not to, and the defendants would block his exit from the commercial establishment in which the exchange was taking place. First, A.R. averred that on April 8, 2016, during one of these incidents, his daughter had removed her boot and he had difficulty putting it on. L.C. raised her voice, said, "[Y]ou put the boots on her," and stuck the video recorder within three feet of his face. Next, A.R. describes another incident that same day in which his daughter's coat zipper was stuck. A.R. and L.C. got into an argument and L.C. "brushed right past [him], ... and placed [his] daughter into the stroller," and yelled at him, "[T]he zipper is broken, repair it. You must repair it." A.R. also describes another, undated incident from about two weeks before he signed the affidavit on April 13, 2016. L.C. videotaped the whole exchange and stuck the video recorder in his face. J.C. "became noticeably agitated, glared at [him] and stated 'Are you sure you [are] able to take best care of her?!' in a firm, nasty, condescending tone." He asked the defendants to move out of his way, they did not, and they finally moved after he asked again. A.R. stated that he believed that this behavior was an attempt to provoke a response. A.R. describes a final child exchange incident from about a month before the affidavit was signed in which L.C. stuck the video recorder in his face and both defendants blocked the exit, again moving only after he asked a second time. According to A.R., J.C. "gave [him] an intense look and made a derogatory comment and stance toward [him]."

In addition to the incidents at the child exchanges, A.R. described an encounter in the late fall or early winter 2013 in New York, while he and his wife were visiting the defendants, during which L.C. "chopped" him, scratched him, kicked him, and threw him down the stairs. He further stated that J.C. has punched and thrown him on the ground three times (once threatening to "destroy [him]"), twice punched him in the jaw, and once threw him down the stairs. The record does not disclose the number of separate incidents in which these events allegedly took place, but A.R. does aver that each instance of each type occurred on "separate occasions" from each other. Since A.R. described three instances of J.C. punching him and throwing him on the ground, A.R. thus describes at least three separate incidents involving J.C. that are unrelated to the child exchanges. He did not say when the events with J.C. took place. On April 13, 2016, an ex parte, temporary order pursuant to c. 258E was entered.

At the two hearings on extending the order, A.R. gave testimony similar to what was in the affidavit and clarified that some child exchanges took place at a drycleaners and others at a CVS store. He described the April 8 zipper incident in more detail, stating that L.C. argued with him over whether the zipper of the child's coat was broken and had a "nasty and aggressive" demeanor. He also testified to a different incident, on March 31, 2016, which presumably was the same incident as the incident described in the affidavit as having occurred two weeks before it was signed, in which L.C. aggressively videotaped him and J.C. blocked the door. Videos of various child exchanges were shown, including those of the March 31 incident and April 8 incident involving the zipper. Most videos are security camera footage from the drycleaners and are date-stamped, but lack audio. Three videos were recorded at CVS on L.C.'s "smart phone" and have audio, but are not date-stamped. In some of the videos, but not the March 31 incident or the April 8 incident involving the zipper, A.R. agreed at the hearing that there was no harassing behavior by either defendant.

The videos do not fully corroborate A.R.'s description of the events as he recounted them in his affidavit. There is no video of an incident involving the child's boot on April 8. There is a phone-recorded, boot-related incident that L.C. in the video describes as occurring on March 27, but there is no evidence of L.C. raising her voice, blocking the door, or otherwise threatening A.R. The video of the April 8 zipper incident lacks audio, so it cannot corroborate (or contradict) A.R.'s sworn statement that L.C. yelled at him, "[T]he zipper is broken, repair it. You must repair it." However, the demeanor of the parties is consistent with their arguing over something, and A.R. does appear to be having trouble with the zipper. Because the March 31 video also lacks audio, it does not corroborate (or contradict) A.R.'s statement that J.C. made a derogatory comment towards him or that he requested that the parties move out of his way. Contrary to A.R.'s sworn statement, however, there is no point in the March 31 video at which J.C. blocks his exit in anything resembling a threatening manner. While it is possible, given the parties' positioning and the timing of the events, that L.C. did not move out of the way when asked, the same is not possible for J.C. There is also no video in which we can hear J.C. making a derogatory comment towards A.R., and no video in which J.C. takes any physical stance that could be interpreted as threatening.

At the hearings, A.R. also testified to the fall or winter 2013 incident with L.C. described in his affidavit. In addition, he stated that J.C. had thrown him down the stairs, punched him, hit him in the upper back, and body slammed him "more than twice." As in the affidavit, he did not say when these events involving J.C. occurred.

At the end of the hearing, the judge issued two orders. With respect to L.C., the judge said in full, "[A]fter a 2 day hearing, + hearing from the [plaintiff], viewing of videos of incidents-The court finds by a preponderance of the evidence that the defendant has harassed the [plaintiff] on more than 3 occasions exceptionally by videoing all of the drop off + pickups." With respect to J.C., she said in full, "[A]fter a 2 party hearing-with video evidence + testimony of [plaintiff] + argument from the defense attorney, court finds by a preponderance of the evidence that the defendant [J.C.] has harassed the [plaintiff]."

Discussion. In neither case did the judge specify what three acts within the judicially narrowed meaning of c. 258E supported her conclusions about either defendant, something we have seen repeatedly in appeals from the issuance of c. 258E orders. We have viewed each of the videos admitted into evidence. They demonstrate annoying and provocative action on the part of the defendant L.C. She accompanies her daughter for pick ups and drop offs of her grandchild and, using a smart phone, she audio and video records A.R. during these interactions, despite A.R.'s repeated request that she not do so. At times she places the phone within a foot or two of A.R. She insists without warrant that A.R. address problems with a zipper on the child's coat or with the child having taken off her boots. A.R.'s counsel in closing during the June 14 hearing said:

"Imagine feeling -- how would you feel -- or anyone would feel, trying to pick up, drop off their daughter, just having three people stare at you and video-recording you. Just waiting for you to screw up. Just waiting for you to use that evidence against him, just waiting to show [the child] crying when daddy's trying to fix something. It's all to harass [A.R.]. There's no need for it."

We agree with counsel's description of L.C.'s conduct. And A.R. may well have had available to him other avenues of legal recourse. For example, he might have returned to the Probate and Family Court seeking an order that these transfers occur in settings where L.C. was less likely to act in such an aggressive and provocative way, for example, at a police station. But although "[t]he inclination to issue an order for the parties to stay away from one another, concluding that such an order cannot do any harm, is understandable," given the "significant collateral consequences for a defendant, consequences that cannot be undone completely, even when a court later determines that the order should not have issued in the first place," judges must take care to adhere to the standard set out in O'Brien. Gassman, 90 Mass. App. Ct. at 8, 55 N.E.3d 997.

While L.C. was certainly "harassing" the plaintiff in the colloquial sense, only two videos contain any conduct that could even arguably be seen as threatening the plaintiff with physical harm such that the conduct amounted to a predicate act of harassment as that word in the statute has been narrowed by the Supreme Judicial Court. First, in the March 31 video, after recording within inches of A.R.'s face, for a few brief moments after the transfer of the child to A.R. at a drycleaners, L.C. and her daughter might have been standing in the way of the door by which the plaintiff could exit the store. Second, in the April 8 video involving the zipper, L.C.'s aggressive pulling of the child toward A.R., coupled with L.C.'s demeanor towards him, might be seen as threatening A.R. with physical harm.

The judge's written basis for the order against L.C. was three acts of harassment "exceptionally by videoing all of the drop off [and] pickups." The meaning of this phrase is not entirely clear to us. As our description of the test for harassment under the narrowed statute makes clear, merely videotaping the drop off and pick up of a child in a contentious divorce in public does not amount to an act of harassment. If we read the judge's order to encompass only conduct observed on the videotapes, and if we assume that the acts in the March 31 and April 8 videos meet the test for harassment, there are still only two predicate acts. There is of course also the incident A.R. described in which L.C. chopped him, scratched him, kicked him, and pushed him down the stairs, but the judge made no finding as to whether this third incident occurred, which L.C. denies, and it is not clear whether the judge intended the order to be based solely on L.C.'s conduct in videotaping the drop offs and pick ups of the child. Because clarification from the judge thus is necessary, the case against L.C. is remanded for further proceedings consistent with this opinion.

As to J.C., the judge's order does not specify what the three predicate acts of harassment were. There is no evidence in the videos of harassment by J.C. A.R. averred and testified to at least three unrecorded incidents involving J.C. punching him and throwing him to the ground that could amount to at least three separate predicate acts that are unrelated to the child exchanges. However, nothing in the order implies that the judge found that these unrecorded events occurred, and we decline to determine sua sponte whether they did and hence whether the requisite three instances of harassment took place. Consequently, we will remand the case involving J.C. so that the judge may clarify what the basis was for her conclusion that the statutory requirements were met with respect to J.C.

To the extent that the judge did in fact intend to rely upon the unrecorded incidents in issuing either order, we note that the judge sustained an objection on relevance grounds to inquiry on cross-examination of A.R. into "mental health issues" that, the defendants argued, could have affected his memory. The judge stated that the "videos speak for themselves," but acknowledged that there were allegations of conduct not captured on the videos. To the extent the judge would rely on these events not on video, ability to recall is obviously relevant and, to the extent there is foundation for it, the defendants on remand will be entitled to a further hearing at which they must be allowed to cross-examine A.R. about these issues.

Conclusion. The cases are remanded for the judge to clarify the basis for extending the c. 258E order in each case. Unless her basis for extending either order included unrecorded incidents as described herein, such order shall be vacated. If either of the orders was extended on the basis of such unrecorded incidents, she shall hold a further hearing with respect to that order or orders. If, after that hearing, the judge concludes that either order is adequately supported as described in this opinion, the supported order or orders may remain in place, otherwise the judge shall vacate the order or orders.

So ordered.

      There is a narrow exception for cases in which a defendant can make a clear and convincing showing that the order was obtained by fraud on the court. See J.S.H., supra at 111, 71 N.E.3d 910.

      The first hearing was held on May 19, 2016, and the c. 258E order was, according to the judge, continued "by agreement of the parties" until June 9, 2016, when the second hearing was held.

      L.C. in this video did request that A.R. put the boots on the child, which A.R. averred that she did on April 8. Because of this and because there is a separate child exchange on April 8, also described in the affidavit, one can infer that A.R. mistakenly described the March 27 boot incident as having occurred on April 8.

      The only point at which J.C. stands between A.R. and the door is when J.C. enters the drycleaners, as A.R. was there first. After fixing the child's coat, J.C. immediately moves out of the way. By the time A.R. secures the child in her stroller and is ready to leave, J.C. is well clear of the door.

      J.C. appears in one of the videos that lacks audio, so it is possible that he made a derogatory comment in that video. A.R. never said what this comment was.

      L.C.'s behavior in this regard may be understood in part by reference to the fact that her daughter had had a G. L. c. 209A restraining order against A.R., which was vacated in part by a probate judge when the judge ordered A.R. have unsupervised visitation with the seventeen month old child.

      The orders had expired during the pendency of this appeal. The parties informed us at oral argument that the judge extended them for another year. Those extended orders are not before us and we do not know the basis for the extensions, but, to the extent our decision has implications for them, the parties may address the issue on remand.


author: CYNTHIA WESTCOTT RICE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Gabrielle Antoinette Josephine NEUROTH a.k.a. Neuroth, Gabrielle A., Defendant-Appellant.
    NO. 2017-A-0054
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided March 12, 2018
    Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
    Marie Lane, Ashtabula County Public Defender, Inc., 4817 State Road, # 202, Ashtabula, OH 44004 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Gabrielle Neuroth, appeals from the judgment of the Ashtabula County Court of Common Pleas, denying her motion to suppress evidence. At issue is whether the arresting officers had consent to enter and search the motel room appellant and her co-defendant, Jason Allen ("Allen"), were occupying. For the reasons discussed in this opinion, we affirm.

{¶ 2} On September 28, 2015, Ashtabula County Sheriff's Deputy Jay Thomas was dispatched to the Ho-Hum Motel. The dispatch was prompted by an anonymous tip that a strong chemical odor was emanating from one of the end rooms. Deputy Thomas is certified by the Ohio Bureau of Criminal Investigation Clandestine Lab Unit. As part of his training, he knows the methods and processes relating to the manufacture of methamphetamine ("meth"). He also has a detailed understanding of the equipment necessary to manufacture the drug as well as the odors and dangers related to its manufacture.

{¶ 3} En route to the motel, Deputy Thomas received a second report of a possible stolen vehicle. Dispatch provided the deputy with a description of the vehicle and its license-plate number. The deputy responded to the reports along with Sergeant Truckey. The officers met at the motel and approached the subject room from an angle they could not be seen by the occupants. The officers observed the possible stolen vehicle parked in front of the room. Upon approaching the room's door, they heard voices inside. Deputy Thomas knocked on the door and a female responded, "hold on honey, we're getting dressed." The officer did not identify himself. After approximately 60 seconds, he knocked again and received a similar response, but no one answered the door.

{¶ 4} Deputy Thomas became suspicious that the occupants may be attempting to leave the room from a rear window. He accordingly walked to the rear of the building to make sure there were no flight attempts. Sergeant Truckey continued to knock and, between two and five minutes after the officers' arrival, Allen answered the door. Deputy Thomas, who was approximately 30 feet away, could hear the sergeant speaking with Allen. Deputy Thomas stated that the entryway included a screen door as well as a main door and Sergeant Truckey was standing within the "fold of the screen door right at the threshold of the door."

{¶ 5} Deputy Thomas noted Allen was shirtless and wearing only boxer shorts and, inside the room, appellant was also topless and donning only underwear. The pair appeared extremely nervous, with trembling hands and speaking in a fast and broken manner. Allen was told that the officers were investigating a possible stolen vehicle which matched the vehicle in the parking lot. According to Deputy Thomas, Allen appeared relieved after being so advised and retrieved a document indicating he and a third-party had entered an agreement for the sale of the vehicle. Allen subsequently invited the officers into the room to discuss the nature of the agreement. Deputy Thomas asked Allen if there were any other occupants in the room, who responded in the negative. He then asked whether he could look to be certain no one else was in the room. Allen consented and as the deputy proceeded into the room, he recognized the odor of ammonia gas which, in his training and experience, is unique to the manufacture of meth. He noted the odor was faint, but was sufficient to support the conclusion that an active lab was present.

{¶ 6} Given the odor, the deputy asked if he could search the couple's belongings and was given permission. He subsequently found a pair of nitrile gloves, which are commonly used in the manufacture of meth. Due to the deputy's apparent concern that an active lab was present and his testimony regarding the dangers of meth production, he asked Allen and appellant to leave the room. And Sergeant Truckey escorted them outside. As the deputy peered under the bed, he noticed the fabric of the box spring was sagging. He touched the area and felt a firm object in the box spring. Upon further inspection, the deputy discovered chemical bottles and a gas generator. Appellant and Allen were placed under arrest.

{¶ 7} According to appellant, she was awakened by knocks at the motel door. She answered the knocks stating, "hold on, honey, we're coming." She then proceeded to retrieve her clothing, which was spread throughout the room. After about the third knock, appellant stated the law enforcement officers identified themselves and Allen opened the door. Appellant maintained once the door was opened, an officer placed his foot in the doorway and entered the room without permission. Appellant stated Sergeant Truckey proceeded to ask Allen about the alleged stolen vehicle, at which point, Deputy Thomas entered the room without permission. She stated neither she nor Allen gave the deputy permission to search the room or their belongings. Nevertheless, he conducted the search, they were removed from the room, placed in handcuffs, and eventually arrested.

{¶ 8} Appellant was indicted on one count of illegal manufacture of drugs, in violation of R.C. 2925.04(A)(C)(3)(b), a felony of the first degree; aggravated possession of drugs, in violation of R.C. 2925.11(A)(C)(1)(d), a felony of the first degree; one count of illegal assembly or possession of chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the third degree; and one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree. Appellant pleaded not guilty to the charges and filed a motion to suppress evidence.

{¶ 9} After a hearing, the trial court denied the motion. Appellant subsequently pleaded no contest to count two, attempted aggravated possession of drugs; count three, illegal assembly or possession of chemicals for the manufacture of drugs; and count four, tampering with evidence. The plea was accepted and appellant was sentenced to a two-year prison term on count two; a two-year term on count three; and a two-year term on count four. The sentences were ordered to be served concurrently.

Appellant now appeals and assigns the following as error:

{¶ 10} "The trial court erred in overruling appellant's motion to suppress."

{¶ 11} " 'An appellate court's review of a motion to suppress presents a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332, * * *. In reviewing the trial court's findings of fact, an appellate court must give due weight to inferences drawn from those facts by the trial court because the trial court is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Hopfer (1996), 112 Ohio App.3d 521, 548, * * * appeal not allowed (1996), 77 Ohio St.3d 1488, * * *. Accordingly, an appellate court reviews a trial court's findings of fact only for clear error. State v. Russell (1998), 127 Ohio App.3d 414, 416, * * *. A trial court's legal conclusions, however, are reviewed by an appellate court de novo. Id. at 416 [713 N.E.2d 56].' State v. Yeager, 9th Dist. Summit Nos. 21091, 21112, 21120, 2003-Ohio-1808 [2003 WL 1825056], ¶ 5." (Parallel citations omitted.) State v. Guzzi, 11th Dist., 2015-Ohio-4426, 47 N.E.3d 476, ¶ 6.

{¶ 12} Appellant challenges the trial court's conclusions (1) that Allen invited the officers into the room and (2) that Allen's and appellant's actions after entry (no protestations that the officers leave) implied they had consent to enter the room. She also argues even if they had consent to enter the room, Deputy Thomas exceeded the scope of that consent by conducting a search of the couple's belongings.

{¶ 13} Under the Fourth Amendment, "a search conducted pursuant to a valid consent is constitutionally permissible." Schneckloth v. Bustamonte , 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of the search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Id. (citation omitted). "To rely on the consent exception to the warrant requirement, the state must show by 'clear and positive' evidence that consent was 'freely and voluntarily' given." State v. Posey , 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988) (citation omitted). "[T]he question of whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth, supra , at 227, 93 S.Ct. 2041.

{¶ 14} Appellant first argues the officers lacked consent to enter the room. She maintains Sergeant Truckey placed his foot inside the door frame, thereby preventing Allen from closing the door. Further, she asserts there was no evidence that Allen expressly invited the officers into the room. We do not agree.

{¶ 15} Although the state did not have evidence contradicting appellant's testimony that Sergeant Truckey positioned his foot inside the door, Deputy Thomas testified on direct and on cross-examination, that Allen invited the officers into the room. On direct, the prosecutor asked the deputy why he and the sergeant entered the room. He responded:

{¶ 16} Basically it was because we-Sergeant Truckey was discussing more the-of this issue with the truck. I mean, it was never-discussed anything. It wasn't like discussed-walked up to the door and said hey, you have a drug meth lab in here. It was more of a way of like kind of easing in the situation and not letting them know that we were there to investigate something more serious than-than just the truck. And we were actually, I mean, invited into the room to discuss this further. (Emphasis added.)

{¶ 17} On cross, the deputy noted: "It wasn't * * * like, hey, come on in and have coffee, but he's just like, he-I mean, I-I don't remember exactly, but we were invited in ." (Emphasis added.) Moreover, Deputy Thomas testified that once they entered the room, with Allen's consent, he asked if he could look around the room to determine whether there were any other occupants in the room. At this point, the deputy identified the distinct odor of ammonia gas inside the room. He then asked whether he could look into the couple's bags. According to the deputy, both Allen and appellant gave him permission and were "completely cooperative." There was therefore prima facie evidence that Deputy Thomas had appellant's and Allen's consent to both enter the room and perform the above-mentioned searches.

{¶ 18} We recognize appellant testified neither she nor Allen invited or consented to the officers' entry or gave Deputy Thomas consent to search the room.

{¶ 19} The trial court also acknowledged this evidence, and made the following findings:

{¶ 20} the Court does not find Neuroth's testimony that the officers never had consent to enter or search to be credible or reliable. The Court had the opportunity to view each witness upon the stand, their manner of testifying, their physical demeanor including facial expressions and eye contact with the lawyers and the Judge. The Court finds the testimony of Deputy Thomas to be truthful. The Court finds the testimony of Gabrielle Neuroth to be self-serving and unbelievable.

{¶ 21} In light of the deputy's testimony, as well of the lack of any protests or attempts to preclude the officers' entry and the deputy's search, we conclude the state offered clear and positive evidence that the officers had received the occupants' voluntary permission to enter the room and search the occupants' belongings. Accordingly, the trial court did not commit clear error in finding the officers had consent to enter the room. Appellant's argument to the contrary lacks merit.

{¶ 22} Next, appellant contends the "secondary search" of the room was beyond the scope of the consent and no exigent circumstances justified the same.

{¶ 23} Initially, appellant notes that the trial court, in its factual recitation, observed that appellant testified she and Allen were handcuffed and taken outside of the room before the meth was discovered. She further points out that the court found her testimony not credible. Nevertheless, appellant underscores this aspect of her testimony was consistent with Deputy Thomas' testimony. Regardless of whether the trial court actually found this aspect of her testimony not believable, appellant's and Allen's location at the time the meth lab was found was not essential to the court's findings that the deputy had consent and/or that the deputy's ultimate search and discovery of the meth lab was proper. The deputy testified:

{¶ 24} When I was done searching the entire room, like each separate bag, * * * and they basically consented to it, I just found there was a bunch of junk, and I was going to get to the bottom of that here in a minute. I was again looking for, the meth lab. I knew there was a meth lab in there somewhere, and if it was hidden in the air conditioner, I don't know, but I was going to find it; because it's again, I did not want to see, one, that bed go up, people get hurt, myself get hurt, so I continued the search. And I located it. At that point they were already-like they had already been asked to leave the room. I was doing a secondary search of the-of the room, because I didn't find it at first. I mean, honestly, it was hidden well.

{¶ 25} From the foregoing testimony, it is apparent the officer believed, for safety reasons, it was necessary to evacuate the room due to the dangers relating to meth manufacturing. And, in light of his training and the surrounding circumstances, Deputy Thomas believed there was an active meth lab in the room.

{¶ 26} With this in mind, it is unclear that the deputy possessed the occupants' consent to search every aspect of the room. They gave the deputy consent to search for additional individuals in the room as well as consent to look through their bags. The testimony does not establish, however, that they gave the officer carte blanche to search the entire room. Assuming, arguendo, the officer's secondary search was beyond the scope of the occupants' consent, however, we hold the trial court did not err in denying appellant's motion because the deputy had probable cause and sufficient exigent circumstances to support the deputy's actions.

{¶ 27} A warrantless search is per se unreasonable under the Fourth Amendment subject to several exceptions. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). One such exception exists when there is probable cause coupled with the existence of exigent circumstances. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002).

{¶ 28} This court has observed:

{¶ 29} With respect to clandestine methamphetamine laboratories, * * * the "basic aspects of the exigent circumstances exception are that (1) law enforcement officers must have reasonable grounds to believe there is immediate need to protect their lives or others or their property or that of others, (2) the search must not be motivated by an intent to arrest and seize evidence, and (3) there must be some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched." United States v. Rhiger , 315 F.3d 1283 (10th Cir.2003). [Other citations omitted.]
{¶ 30} Applying the foregoing test, the courts have upheld limited warrantless searches when the odor of chemicals associated with methamphetamine production was detected coming from a residence, the observing officer had extensive knowledge of the particular dangers associated with an active methamphetamine lab, and there was no evidence offered that agents entered the home with an intent to arrest and seize evidence. Rhiger, 315 F.3d at 1290-1291 ; see also, United States v. Erb (C.A.10, 1979) 596 F.2d 412, 418 (exigent circumstances search upheld where the odor of methamphetamine production was evident, the agent had extensive experience in the matter of clandestine laboratory operations and knowledge of their inherent dangers); United States v. Wilson (C.A.9, 1989), 865 F.2d 215, 217 ; United States v. Spinelli (C.A.2, 1988), 848 F.2d 26, 30 (exigent circumstances included the volatile nature of chemicals used to manufacture methamphetamine, and the likelihood of explosion). But see, United States v. Jackson (D.Kan.2002), 199 F.Supp.2d 1081, 1090 (odor of anhydrous ammonia and suspicion of laboratory do not constitute exigent circumstances without evidence of volatile nature of chemicals and the danger of explosion); People v. Gott (Ill.App.2004), 346 Ill.App.3d 236, 281 Ill.Dec. 279, 803 N.E.2d 900, 907-908 (odor of chemicals and suspicion of methamphetamine lab not enough for public safety exigent circumstance without separate evidence that police were also aware of the dangerous nature of chemicals). State v. Pape , 11th Dist. Ashtabula No. 2004-A-0044, 2005-Ohio-4657 [2005 WL 2135139], ¶ 23-24.

{¶ 31} The odor of the ammonia gas, along with the discovery of the nitrile gloves, and the deputy's extensive training along with evidence of the volatility and dangers associated with meth manufacturing, provided the officer with probable cause that an active lab was somewhere in the room. Accordingly, even if the search that led to the discovery of the meth lab was beyond the scope of the occupants' initial consent, we conclude there was probable cause and sufficient exigent circumstances for Deputy Thomas to proceed with an investigation of the entire room.

{¶ 32} Appellant's sole assignment of error is without merit.

{¶ 33} For the reasons discussed in this opinion, the judgment of the Ashtabula County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.

      The deputy testified, over a 10-year period, he has investigated "well-over a hundred" meth labs. Moreover, he testified the manufacture of meth is very unsafe "[b]ecause of the exothermic reaction and the flammable liquid being present, a lot of times the bottles will fail because you have the-the exothermic reaction occurring, and it compromises the plastic bottle, and it almost creates like a flamethrower effect, because you have a pressurized bottle with flammable liquid inside it, and it's pressurized and actually will-I've seen houses burn down. I've seen people burned up. I mean, it's-it's bad."