State v. Dennis , 182 Ohio App. 3d 674 ( 2009 )

{¶ 66} The majority's decision sustaining the first assignment of error is based on a misreading of the record and the law applicable to it.

{¶ 67} The trial court did not find that defendant Dennis was a trespasser and therefore lacks standing to prosecute his motion to suppress evidence because he'd been "evicted." Rather, the court found that Dennis was a trespasser because "he had received two eviction notices prior to the (officer's) entry into the apartment."

{¶ 68} The finding the trial court made assumes the application of R.C. 1923.02(B) and 5321.17(B) to the effect that the notices Dennis received had on his tenancy. Those sections provide that such notices terminate an oral, month-to-month tenancy. Dennis's landlord could then elect to treat Dennis as a trespasser. Johnson v. Brown, Clark App. No. 2002-CA-76, 2003-Ohio-1257, 2003 WL 1193795, ¶ 12. It is clear from this record that his landlord did.

{¶ 69} The majority holds that a judgment entered pursuant to R.C. 1923.09(A) was instead necessary in order to terminate Dennis's tenancy. The majority relies on Steinerv. Minkowski (1991), 72 Ohio App.3d 754, 596 N.E.2d 492, and State ex rel. Jenkins v. Hamilton Cty. Court, (1961), 114 Ohio App. 231, 19 O.O.2d 106, 173 N.E.2d 186. Neither case involved an oral tenancy, however.

{¶ 70} The record does not reflect whether Dennis's tenancy was oral or written or indicate its duration. It was Dennis's burden to offer evidence on the terms of his tenancy following the state's objection that he lacks standing. Any abuse of discretion the trial court committed in assuming an oral, month-to-month tenancy is therefore chargeable to Dennis.

{¶ 71} Nevertheless, even on the assumption the court made, Dennis demonstrated that he was entitled to the protections afforded by the Fourth Amendment when officers opened the door to his apartment and entered on August 17, 2007.

{¶ 72} The deadlines the landlord's two notices presented had not yet passed on the date police entered, according to Dennis's uncontradicted testimony, and he was using the time remaining to move out. His landlord therefore "suffered" Dennis's presence on the premises for that limited time and purpose, Johnson v. Brown, which by reference to both laws of property and understandings that society recognizes conferred a legitimate expectation of privacy on Dennis. Rakas v. Illinois (1978), 439 U.S. 128,99 S.Ct. 421, 58 L.Ed.2d 387. Dennis therefore had a reasonable expectation of freedom from the governmental intrusion that occurred necessary to confer standing to complain of aFourth Amendment violation. Mancusi v. DeForte (1968),392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154.

{¶ 73} I would sustain the first assignment of error on the foregoing analysis. I do not agree with the majority's view that a judgment authorized by R.C. 1923.09(A) is always necessary on facts of this kind.

{¶ 74} My dissent is from the majority's decision sustaining the second assignment of error, which is not an assignment of error at all but is instead a proposition of law that "[t]he opening of appellant's door and entrance into his apartment violated his Fourth Amendment Constitutional rights."

{¶ 75} Having found that defendant lacks standing, the trial court did not reach the issue of whether the officers violated defendant's Fourth Amendment rights when they opened the door of his apartment. The court instead found that having done that, the officers had probable cause to arrest defendant as a trespasser and to seize the contraband they saw him discard.

{¶ 76} The majority nevertheless sustains the second assignment of error on a finding that defendant'sFourth Amendment rights were violated when officers opened the door to his apartment because it was not reasonable for them to do that. Had the trial court so found, we could review the question de novo. However, not having made any finding in that regard, the trial court committed no error in that regard for us to review. The majority's decision sustaining the second "assignment" is therefore no more than a gratuitous expression of a legal opinion by a court lacking a justiciable controversy to determine. In other words, it is an advisory opinion, offered prospectively and granting no relief.

{¶ 77} An appellate court may affirm an erroneous judgment on other grounds, so long as those grounds were fully adduced in the proceedings before the trial court. State v.Peagler (1996), 76 Ohio St.3d 496, 668 N.E.2d 489. There is no corollary to that rule that permits an appellate court to reverse a judgment on grounds that were fully adduced but on which the trial court rendered no judgment. The trial court did not decide whether opening defendant's door violated hisFourth Amendment rights. I would remand the case to the trial court to rule on that issue.