State v. Nelson , 2016 Ohio 5344 ( 2016 )

[Cite as State v. Nelson, 2016-Ohio-5344.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150650
TRIAL NO. B-1501410
Plaintiff-Appellant, :
O P I N I O N.
vs. :
LEONARD NELSON, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 12, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal by the state from a trial court decision granting a
motion to suppress. While undertaking a warrantless visit to a probationer’s home, a
probation officer peeked through a blanket hanging in the entrance of a bedroom
belonging to another occupant of the home. He immediately spotted a gun and a bag of
marijuana. The bedroom occupant was charged with drug trafficking and possession.
He moved to suppress, arguing that the probation officer had no right to search his
private bedroom. The trial court granted the motion; we now reverse. As a condition of
his probation, the probationer consented to the search of his residence, including
common areas of the home. Even if the probationer’s consent did not extend to the
defendant’s bedroom, concerns for officer safety justified the limited intrusion into the
bedroom.
I. A Probation Visit Leads to Illegal Drugs and an Arrest
{¶2} Leonard Nelson was charged with trafficking in marijuana and
possession of cocaine after drugs were found in his bedroom. The arrest occurred after
three probation officers visited his home to check on his uncle, Shawn Nelson, who was
also living there. Two of the three probation officers testified at the hearing on the
motion to suppress.
{¶3} According to testimony presented at the hearing, Leonard and Shawn
lived with Leonard’s mother who rented the second and third floors of a two-family
home on Clarewood Avenue in Cincinnati. Shawn was on felony probation, having been
convicted of carrying a concealed weapon. After being placed on community control,
Shawn signed the “Hamilton County Common Pleas Criminal General Rules for
Probationers,” which included an acknowledgment that “I am subject to search in
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accordance with Ohio Revised Code section 2951.02. The search includes * * * the
search of my person, place of residence.”
{¶4} Not long after Shawn was placed on community control, his probation
officer, Alex Boyd, attempted to visit the house. He needed to verify that Shawn was
living there and was concerned because he had received an anonymous complaint that
people were dealing crack cocaine from the house. He received no answer at the door,
but did discover two shell casings—one on the sidewalk leading from the front of the
house to the back and the other near the back door. Four days later Officer Boyd
returned, and this time brought two other probation officers, Officers Mike Schad and
Justin Miyagawa, with him. After the probation officers knocked and yelled for five
minutes, Shawn answered the door.
{¶5} Shawn took the officers to a living room on the second floor where they
encountered Shawn’s mother and sister. Shawn told the officers that he slept in the
living room and that there was no one else in the residence.
{¶6} Officer Schad testified that while the other officers were talking to Shawn
and his companions, he heard movement that sounded like it was coming from above.
According to Officer Schad this unknown noise alarmed him—“[d]ue to officer safety
reasons, we would like to have everyone in a secure location, especially with a defendant
who is out on felony probation for a gun.” To investigate, the officer walked into the
kitchen, found an open door to a stairwell, and proceeded up the steps to the third floor.
At the top of the steps was an area that was described as “open -- like a community
common room, like a living room with a couch and a coffee table.” Behind that room
was a bedroom that was separated from the common room by a blanket that was
hanging in the entrance. As he was walking up the steps, Officer Schad shouted,
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OHIO FIRST DISTRICT COURT OF APPEALS
“Probation, is anyone up here?” Leonard identified himself, and Officer Schad ordered
him to come out of the back bedroom and go downstairs.
{¶7} Officer Schad then poked his head into the third-floor bedroom to make
sure no one else was there. He immediately spotted a gun and a small bag of marijuana
on a table next to the bed. The probation officers handcuffed Leonard and detained him
until Cincinnati Police arrived.
{¶8} Leonard filed a motion to suppress arguing that marijuana, cocaine and
a digital scale found in the bedroom were the fruits of an unconstitutional search. After
a hearing, the trial court granted Leonard’s motion. The court stated that where a
cotenant shares a residence with a probationer, a warrantless probation search of the
residence must be limited to areas which the probationer is known to occupy or have
joint control. The court found that Shawn did not have actual or apparent authority to
consent to a search of the third floor. The court further found that no exigent
circumstances—such as a concern for officer safety or the destruction of evidence—
justified a search of the third floor. In addition, the court opined that the anonymous
tip of illegal drug activity did not provide reasonable grounds to search the second floor,
let alone the third floor.
II. A Fourth Amendment Violation?
{¶9} In its sole assignment of error, the state contends the trial court erred
when it granted Leonard’s motion to suppress. It argues the probation officers had the
right to search Shawn’s residence and the common areas within because they had
reasonable suspicion that he was not abiding by the law or the terms of probation. The
state further contends that the concerns of officer safety justified the intrusion into the
third-floor bedroom where the evidence of illegal activity was found.
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OHIO FIRST DISTRICT COURT OF APPEALS
A. Shawn’s Consent to Search
{¶10} As a condition of his probation, Shawn consented to a warrantless search
of his person and residence. See State v. Benton, 82 Ohio St.3d 316, 321, 695 N.E.2d
757 (1998); State v. McCain, 154 Ohio App.3d 380, 2003-Ohio-4890, 797 N.E.2d 527, ¶
1 (4th Dist.). R.C. 2951.02(A) authorizes a probation officer to search the probationer
and his residence if the probation officer has “reasonable grounds to believe that the
offender is not abiding by the law * * * or the conditions of the felony offender’s
nonresidential sanction.” Here, the officers had reasonable grounds to believe that
Shawn was not abiding by the law. They had received an anonymous tip that drug
dealing was occurring at the house—a suggestion of illegal activity that was corroborated
by the spent shell casings found outside.
{¶11} The question is how far Shawn’s consent extended. Under R.C.
2951.02(A), a probation officer may search the probationer, his place of residence and
“other real property * * * for which the offender has the express or implied permission of
a person with a right, title, or interest to use, occupy, or possess.” This is consistent with
the general principle that a third party can provide valid consent to a warrantless search
if he “possesse[s] common authority over or other sufficient relationship to the
premises” sought to be searched. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct.
988, 39 L.Ed.2d 242 (1974). To establish common authority, the state must
demonstrate that Shawn had joint access to or control of the third floor. See State v.
Johnson, 2014-Ohio-5400, 26 N.E.3d 243, ¶ 27 (4th Dist.). Because co-inhabitants
have joint access or control for most purposes, it is reasonable to recognize each co-
inhabitant has the right to permit inspection and that the others “have assumed the
risk that one of their number might permit the common area to be searched.”
Matlock at fn. 7; see Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d
5OHIO FIRST DISTRICT COURT OF APPEALS
684 (1969). But “where a cotenant who is not on probation shares a residence with a
probationer, the warrantless probation search of the residence must be limited to the
common areas the probationer is known to occupy or have joint control over.” State v.
Norman, 2014-Ohio-5084, 21 N.E.3d 1153, ¶ 41 (12th Dist.).
{¶12} Leonard argues that Shawn did not possess common authority over the
third floor. Leonard’s mother testified that ordinarily the door leading up to the third
floor was locked, and that Leonard was the only one with access to the third floor.
However, even if a cotenant does not have actual common authority over the searched
area, a search does not violate the Fourth Amendment if the officers relied in good faith
on that cotenant’s apparent authority to consent. Norman at ¶ 38. Whether a person
possessed apparent authority is an objective test that asks whether the facts available to
the officer at the time would warrant a person of reasonable caution to believe the
consenting party had the authority over the premises. Illinois v. Rodriquez, 497 U.S.
177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).
{¶13} Courts often have found that a probationer’s actual or apparent authority
to consent did not extend to separately locked areas of a home. For example in Norman,
probationer officers removed a door by its hinges to access a basement that had been
closed off with two locks. Norman at ¶ 39. The probationer claimed to have leased the
basement out to other individuals and was able to produce a copy of the lease; the
probationer denied having a key for the key-lock or knowing the combination for the
keypad on the door; and an individual who identified himself as a basement tenant
refused to consent to the search. Id. In these circumstances, the court found that a
reasonable probation officer would not have relied upon the probationer’s apparent
authority to consent to the search. Id. Similarly in Johnson, the court found that a
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OHIO FIRST DISTRICT COURT OF APPEALS
probationer’s consent to search did not extend to a separately padlocked bedroom
belonging to another occupant of the home. Johnson at ¶ 28.
{¶14} Our case is different. Unlike the locked areas in Johnson and Norman,
the stairway to the third floor was wide open. There was nothing to indicate that the
third floor was not a common area of the house to which Shawn had joint access and
control. The defense argues that Officer Schad could not have believed that Shawn had
authority to consent to a search of the third floor because the air mattress where he
apparently slept was located on the second floor. But the fact that Shawn may have slept
on one floor, does not indicate that he did not have joint access to other open areas of
the house. Further bolstering the probation officer’s reasonable belief that Shawn had
authority to consent to a search of the third floor is the fact that while he said he slept on
the second floor, the officers did not observe any of his personal items on that floor.
Thus, regardless of whether the third floor was an area over which Shawn had common
authority, the facts presented to Officer Schad provided him with a good-faith belief that
he did. Because it was reasonable for Officer Schad to assume that Shawn had joint
access to open areas of the house, Officer Schad did not violate the Fourth Amendment
when he proceeded up the stairs and into the living room on the third floor.
B. The Third-Floor Bedroom
{¶15} Officer Schad’s decision to peek into the third-floor bedroom, which was
at least partially cordoned off by a blanket, presents a more difficult question.
Ordinarily, “a co-tenant may not consent to the search of the private bedroom of
another co-tenant which is neither jointly occupied nor jointly controlled.”
Columbus v. Copp, 64 Ohio App.3d 493, 498, 581 N.E.2d 1177 (10th Dist.1990).
{¶16} It is a fair question whether Shawn’s apparent authority extended to
the third-floor bedroom. There is a good argument that it did. Unlike the situations
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OHIO FIRST DISTRICT COURT OF APPEALS
in Norman and Johnson, the bedroom was not locked; indeed, only a hanging
blanket separated it from the common room. Further, Officer Schad did not even
know that a bedroom was behind the blanket until he looked in. But we need not
decide whether Shawn’s apparent authority extended to the bedroom because even if
it did not, Officer Schad’s brief intrusion was justified by concerns of officer safety.
{¶17} The “ultimate touchstone of the Fourth Amendment is
‘reasonableness.’ ” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164
L.Ed.2d 650 (2006). Where concerns of officer safety are present, the United States
Supreme Court has measured reasonableness by balancing the need for the search
against the invasion the search entails. Maryland v. Buie, 494 U.S. 325, 332, 110 S.Ct.
1093, 108 L.Ed.2d 276 (1990), citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). Thus, the court has found that the Fourth Amendment permits an
officer to make a limited protective sweep incident to arrest. Buie at 337. Such a sweep
must be based on “a reasonable belief based on ‘specific and articulable facts which,
taken together with the rational inferences from those facts, reasonably warrant[] the
officer in believing,’ that the area swept harbor[s] an individual posing a danger to the
officer or others.” Id., citing Michigan v. Long, 463 U.S. 1032, 1049-1050, 103 S.Ct.
3469, 77 L.Ed.2d 1201 (1983), quoting Terry at 21. Courts have also permitted a
protective sweep even when no arrest takes place provided the officers entered the
residence lawfully. See, e.g., State v. Shaffer, 8th Dist. Cuyahoga No. 93948, 2010-
Ohio-1744, ¶ 18-19, 21. In State v. Sutton, 7th Dist. Mahoning No. 01-CA-181, 2002-
Ohio-6901, for example, a protective sweep was permitted where officers entered an
apartment with the resident’s consent simply to ask questions, but then developed a
reasonable suspicion that dangerous individuals might be hiding after the resident lied
that no one else was in the apartment.
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{¶18} Under the circumstances confronted by Officer Schad, we find it
eminently reasonable for him to stick his head into the bedroom. Officer Schad had
already discovered one individual in the bedroom. The fact that Shawn had represented
to the officers that no one else was in the house raised a legitimate suspicion that
someone else might be lurking behind the blanket. He also knew that Shawn was on
probation for carrying a concealed weapon; that spent shell casings had been found
outside of the house; and that an anonymous tip indicated crack cocaine was being sold
at the house. Out of concern for his safety and that of his fellow officers, Officer Schad
acted reasonably and within the contours of the Fourth Amendment when he poked his
head into the bedroom.
{¶19} Once he looked inside of the bedroom, Officer Schad was entitled to
seize the drugs and other evidence that were in plain view. The plain view exception to
the Fourth Amendment applies where, as here, (1) the initial intrusion was not
constitutionally impermissible; (2) the discovery of the evidence was inadvertent; and
(3) the incriminating nature of the evidence was immediately apparent. Coolidge v.
New Hampshire, 403 U.S. 443, 465-470, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v.
Williams, 55 Ohio St.2d 82, 377 N.E.2d 1013 (1978), paragraph one of the syllabus.
III. Conclusion
{¶20} The state’s sole assignment of error is sustained. The judgment of the
trial court granting Leonard’s motion to suppress is reversed, and the cause is remanded
for proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
C UNNINGHAM , P.J., and M OCK , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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